Transboundary environmental impact assessment in the case of the baltic sea gas pipeline

International Journal of Marine and Coastal Law

Volumn 25, Issue 2, 2010, Pages 151-181

  Koivurova, Timo ^a   Pölönen, Ismo ^b  

^a UNIVERSITY OF LAPLAND   (Finland)

^b UNIVERSITY OF EASTERN FINLAND   (Finland)

Author keywords

Baltic Sea; Environmental impact assessment (EIA); Espoo Convention; Pipelines; Transboundary

Indexed keywords

COASTAL ZONE; ENVIRONMENTAL IMPACT ASSESSMENT; GAS PIPELINE; INTEGRATED APPROACH; OFFSHORE STRUCTURE;

ATLANTIC OCEAN; BALTIC SEA; FINLAND;

EID: 77951548468     PISSN: 09273522     EISSN: 15718085     Source Type: Journal    
DOI: 10.1163/157180910X12665776638588     Document Type: Article

References (110)

1. Good examples of such treaty regimes are the near-universal conventions adopted at the 1992 Rio Conference on Environment and Development, namely the regime based on the United Nations Framework Convention on Climate Change, 9 May 1992, New York, in force 21 March 1994, 1771 UNTS 107
2. and the one created under the 1992 Convention on Biological Diversity, 5 June 1992, Rio de Janeiro, in force 29 December 1993, 31 ILM 818 (1992). Tis has also led to interesting suggestions from scholars, e.g., Churchill and Ulfstein perceive these types of regimes to be Autonomous Institutional Arrangements (AIA), entities comparable to inter-governmental organizations, with the concomitant possibility that the decisions of their plenary organs are binding on the states parties.
3. See R. Churchill, G. Ulf- stein, "Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little-Noticed Phenomenon in International Law" (2000) 94 American Journal of International Law (AJIL) 623-659.
4. Two examples of such international environmental treaties are the 1974 Nordic Environment Protection Convention, 19 February 1974, Stockholm, in force 5 October 1974, 13 ILM 591 (1974)
5. and the 1973 Agreement on the Conservation of Polar Bears, 15 November 1973, Oslo, in force 26 May 1976, 13 ILM 13 (1974). Both were negotiated, concluded and left at that, although the Polar Bear Agreement was to some extent developed under the IUCN Polar Bear Specialist Group. In addition, with the rising awareness of the problems polar bears will face with melting sea ice, Norway recently hosted the first formal treaty meeting between the five polar bear treaty partners.
6. See N. Bankes, "Climate Change and the Regime for the Conservation of Polar Bears," in: T. Koivurova, E. Carina, H. Keskitalo and N. Bankes (eds.), Climate Governance in the Arctic (2009) UK: Springer, 351-382.
7. The Convention on Environmental Impact Assessment in a Transboundary Context, 25 February 1991, 30 ILM 800 (1991) [hereinafter Espoo Convention], entered into force 10 September 1997.
8. There is an increasing body of literature on transboundary EIA; see, e.g., the special issue on transboundary EIA, 26 Impact Assessment and Project Appraisal (IAPR) (2008);
9. Teory and Practice of Transboundary Environmental Impact Assessment (2008) K. K. Bast meijer, T. Koivurova (eds.) Leiden: Martinus Nijhoff Publishers;
10. For an overview of the negotiations, see R. Connelly, The UN Convention on EIA in a Transboundary Context: A Historical Perspective (1999) 19 Environmental Impact Assessment Review 37-46.
11. Available at: http://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&mtdsg-no=XXVII- 4-b&chapter=27&lang=en (last accessed 1.6.2009). The Protocol requires 16 parties for it to enter into force; currently 13 have accepted the Protocol as binding and it is thus not yet in force. (European Community approval cannot be counted for this purpose.)
12. Espoo Convention, Art. 2 (2, 3 and 7).
13. Ibid., Art. 3 (1, 2 and 3).
14. Ibid. The expression "Te public" was defined in Article 1 (x) of the Espoo Convention simply as "one or more natural or legal persons". Due to the influence of the Aarhus Convention on Access to Information, Participation in Decision-making and Access to Justice in Environmental Matters (25 June 1998, Aarhus, Denmark, in force 30 October 2001, 38 ILM 517 (1999)), the second Meeting of the Parties, held in Sofia in 2001, adopted an amendment to the Espoo Convention, adding the following to Article 1 (x): "and, in accordance with national legislation or practise, their associations, organizations or groups".
15. The expression "Te public" was defined in Article 1 (x) of the Espoo Convention simply as "one or more natural or legal persons". Due to the influence of the Aarhus Convention on Access to Information, Participation in Decision-making and Access to Justice in Environmental Matters (25 June 1998, Aarhus, Denmark, in force 30 October 2001, 38 ILM 517 (1999)), the second Meeting of the Parties, held in Sofia in 2001, adopted an amendment to the Espoo Convention, adding the following to Article 1 (x): "and, in accordance with national legislation or practise, their associations, organizations or groups"., Ibid., Art. 3 (1, 2 and 3), Art. 3 (4-8) and Art. 2 (6) on non-discrimination.
16. The expression "Te public" was defined in Article 1 (x) of the Espoo Convention simply as "one or more natural or legal persons". Due to the influence of the Aarhus Convention on Access to Information, Participation in Decision-making and Access to Justice in Environmental Matters (25 June 1998, Aarhus, Denmark, in force 30 October 2001, 38 ILM 517 (1999)), the second Meeting of the Parties, held in Sofia in 2001, adopted an amendment to the Espoo Convention, adding the following to Article 1 (x): "and, in accordance with national legislation or practise, their associations, organizations or groups"., Ibid., Arts. 4 and 5.
17. The expression "Te public" was defined in Article 1 (x) of the Espoo Convention simply as "one or more natural or legal persons". Due to the influence of the Aarhus Convention on Access to Information, Participation in Decision-making and Access to Justice in Environmental Matters (25 June 1998, Aarhus, Denmark, in force 30 October 2001, 38 ILM 517 (1999)), the second Meeting of the Parties, held in Sofia in 2001, adopted an amendment to the Espoo Convention, adding the following to Article 1 (x): "and, in accordance with national legislation or practise, their associations, organizations or groups"., Ibid., Art. 6.
18. The expression "Te public" was defined in Article 1 (x) of the Espoo Convention simply as "one or more natural or legal persons". Due to the influence of the Aarhus Convention on Access to Information, Participation in Decision-making and Access to Justice in Environmental Matters (25 June 1998, Aarhus, Denmark, in force 30 October 2001, 38 ILM 517 (1999)), the second Meeting of the Parties, held in Sofia in 2001, adopted an amendment to the Espoo Convention, adding the following to Article 1 (x): "and, in accordance with national legislation or practise, their associations, organizations or groups"., Ibid., Art. 7 and Appendix V.
19. This emerges from the Second Review of Implementation of the Espoo Convention, (ECE/MP.EIA/11), available at: http://www.unece.org/env/documents/ 2008/eia/ece.mp.eia. 11.pdf (last accessed 2.6.2009).
20. "Exchange of Good Practices, Large-Scale Transboundary Projects, Application of the Espoo Convention to complex activities," Note by the Secretariat (ECE/MP.EIA/ WG.1/2009/4, 2 March 2009), Economic Commission for Europe Meeting of the Parties to the Convention on Environmental Impact Assessment in a Transboundary Context, Working Group on Environmental Impact Assessment, Twelfth meeting, Geneva, 11-13 May 2009, Item 5(a) of the provisional agenda, available at: http://www.unece.org/env/ documents/2009/eia/ wg.1/ece.mp.eia.wg.1.2009.4.e.pdf (last accessed 1.6.2009).
21. The project's name is Nord Stream and it is referred to here as the Baltic Sea Gas Pipeline (BSGP); it is being developed by the joint venture company Nord Stream AG.
22. Formally speaking, the note was prepared at the request of the Commission of the European Communities, further to the work plan adopted at the fourth Meeting of the Parties (ECE/MP.EIA/10, decision IV/7, annex).
23. "The Task Force on Complex Activities" is to begin its work in 2010 by examining the need for detailed recommendations on the application of the Espoo Convention to complex activities. If the Task Force concludes that detailed recommendations are needed, it will then draft them, taking into account: (a) lessons learned from past experiences in the application of the Espoo Convention; and (b) existing guidance prepared under the Espoo Convention. The Task Force will focus on joint EIA of large-scale transboundary activities, further to appendix VI, para. 2 (g), of the Espoo Convention. The recommendations will be considered by the Working Group on EIA and, later, the Meeting of the Parties. The delegations of Romania, Ukraine, the European Commission and, subject to confirmation, Georgia and the Russian Federation, have indicated their willingness to join the Task Force. In addition, other EU Member States may agree to participate in the Task Force after the Baltic Sea sub-regional workshop in October 2009. The Working Group agreed that NGOs would be invited by the Task Force on a case-by-case basis to assist in its work. Information obtained from the Secretary of the Espoo Convention, Wiek Schrage, by e-mail on 1 June 2009. The Seminar on Cooperation on the EIA Convention in the Baltic Sea sub-region (Vilnius, 22-23 October 2009) discussed the issue of whether there are more states parties willing to join the Task Force on Complex Activities, but no volunteers appeared. It was agreed that some of the Baltic Sea states could join the 2010 Moscow seminar on the topic. Information obtained from the official responsible in the Finnish Ministry of the Environment, via e-mail (10.12.2009), On file with the author.
24. See supra note 14.
25. For instance, the European Parliament has taken a critical stance towards the project; see European Parliament resolution of 8 July 2008 on the environmental impact of the planned gas pipeline in the Baltic Sea to link up the Russian Federation and Germany (Petitions 0614/2007 and 0952/2007) (2007/2118(INI)), INI reference available at: http://www. europarl.europa.eu/ oeil/FindByProcnum.do?lang=en&procnum=INI/2007/2118 (last accessed 24.01.2010).
26. A thorough overview of the various stages is provided in chapter 2 of the Nord Stream so-called "Espoo Report", the international EIS document (Espoo Report), available at: http:// www.nord-stream.com/fileadmin/Dokumente/ eia-permitting/Chapter-02/Nord-Stream- Espoo-Report-English-Chapter-02.pdf (last accessed 2.6.2009).
27. These countries can be regarded as parties of origin because the BSGP passes through their territorial waters and/or their Exclusive Economic Zone (EEZ). See infra note 33.
28. See, however, E. Karm, "Environment and Energy: The Baltic Sea Gas Pipeline" (2008)
29. Journal of Baltic Studies (JBS) 99-121.
30. Espoo Convention, Art. 3(1) and Appendix I, paragraph 8.
31. However, signature already requires some measures from the contracting states according to the Vienna Convention on the Law of Treaties, 23 May 1969, Vienna, Austria, in force
32. January 1980, 8 ILM 679 (1969) and, arguably, in the customary law of treaties. According to Article 18 of the Vienna Convention and the identical norm in the customary law of treaties: "A state is obligated to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty . . . until it shall have made its intention clear not to become a party to the treaty". In the case of the Espoo Convention, it can be argued that at least some kind of notification must be made to the potentially affected state even if no comprehensive transboundary EIA procedure is organized; otherwise the object and purpose of the treaty, "to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities", would be frustrated. Also interesting is that when signing the Espoo Convention, the signatories adopted a resolution: "to strive for the entry into force of the Convention as soon as possible and to seek to implement the Convention to the maximum extent possible pending its entry into force; 2. Consider that, pending the entry into force of the Convention, the necessary authority should be given to the Economic Commission for Europe and to its Executive Secretary to provide for a sufficient secretariat and, in the framework of the existing budgetary structure, for the appropriate financial means; 3. Continue to co-operate in bringing closer together their policies and strategies in relation to environmental impact assessment". The resolution is on file with the authors.
33. Article 206, LOS Convention (10 December 1982, Montego Bay, Jamaica, in force 16 November 1996, 21 ILM 1261) [hereinafter the "1982 LOSC"], provides: "When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in article 205". Article 205, 1982 LOSC, then specifies how such results are to be published and communicated: "States shall publish reports of the results obtained pursuant to article 204 or provide such reports at appropriate intervals to the competent international organizations, which should make them available to all States".
34. The 1992 Convention on the Protection of the Marine Environment of the Baltic Sea Area, 9 April 1992, Helsinki, in force 17 January 2000, 2099 UNTS 197. This Convention, with the amendments, can be found on the home page of the Helsinki Commission (Baltic Marine Environment Protection Commission), with the most recent amendment, available at: http://www.helcom.fi/stc/files/Convention/ Conv1108.pdf (last accessed 2.6.2009).
35. Article 7 stipulates: "1. Whenever an environmental impact assessment of a proposed activity that is likely to cause a significant adverse impact on the marine environment of the Baltic Sea Area is required by international law or supra-national regulations applicable to the Contracting Party of origin, that Contracting Party shall notify the Commission and any Contracting Party which may be affected by a transboundary impact on the Baltic Sea Area. 2. The Contracting Party of origin shall enter into consultations with any Contracting Party which is likely to be affected by such transboundary impact, whenever consultations are required by international law or supra-national regulations applicable to the Contracting Party of origin. 3. Where two or more Contracting Parties share transboundary waters within the catchment area of the Baltic Sea, these Parties shall cooperate to ensure that potential impacts on the marine environment of the Baltic Sea Area are fully investigated within the environmental impact assessment referred to in paragraph 1 of this Article. The Contracting Parties concerned shall jointly take appropriate measures in order to prevent and eliminate pollution including cumulative deleterious effects". Even though HELCOM has not been directly in charge of the transboundary EIA, Finland and other countries have sent all the pertinent documents to it.
36. Interestingly, however, there was an attempt within HELCOM to adopt practical guidance on how to apply Article 7 in the Baltic Sea. A working group was tasked to prepare this guidance and it produced a document entitled "Guidance on the Practical Application of HELCOM Requirements on Conducting Environmental Impact Assessment", where specific recommendations were given. Interestingly, the guidance document based itself on the customary law principle of good neighbourliness and other relevant conventions, also mentioning the Espoo Convention. Oddly enough, it does not touch upon public participation at all, which is normally seen as an integral part of a transboundary EIA. Another interesting aspect is that the recommendations envisage HELCOM points of contact and HELCOM itself playing a clear role in the international coordination of transboundary EIA. There are even provisions requiring the HELCOM points of contact and HELCOM to be in touch with the Espoo points of contact and the Espoo Convention Secretariat where HELCOM coordinates the transboundary EIA. All the Baltic Sea littoral states, with the exception of the Russian Federation, endorsed the guidelines document, but due to the Russian Federation's resistance they were not adopted. Guidance on the Practical Application of HELCOM Requirements on Conducting Environmental Impact Assessment, HELSINKI COMMISSION, HEL-COM 26/2005 Baltic Marine Environment Protection Commission, 26th Meeting, Helsinki, Finland, 1-2 March 2005, Agenda Item 3, Matters arising from the subsidiary bodies, Document code: 3/1, Date: 14.1.2005 Submitted by: Executive Secretary. The document is on file with the authors.
37. The amendment to the EIA Directive (97/11/EC) incorporated the Espoo Convention requirements as part of the European Community Law as the EC is a party to the Espoo Convention. There are some minor requirements of the EIA Directive on transboundary EIA that go further than those of the Espoo Convention. For instance, the Espoo Convention requires in its Article 6(2) that the origin state deliver the final decision to the affected state, but it does not specifically require it to forward this information to the public of the affected state, a requirement that is contained in Article 9(3) of the EC EIA Directive. In addition, the EC EIA Directive states that the final decision on the proposed activity "must" take into account the results of transboundary consultations and comments from the public of the affected state, whereas the Espoo Convention uses the weaker wording "take due account". Council Directive 97/11/EC of 3 March 1997 Amending Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment, OJ No.L 073, 14/03/1997.
38. See chapter 3 of the Espoo Report, p. 62, available at: http://www.nord-stream.com/file- admin/Dokumente/eia-permitting/Chapter-03/Nord- Stream-Espoo-Report-English- Chapter-03.pdf (last accessed 2.6.2009).
39. See supra note 24.
40. T. Koivurova, "The Convention on Environmental Impact Assessment in a Transboundary Context", in: G. Ulfstein, T. Marauhn, A. Zimmermann (eds.) Making Treaties Work (2007), Cambridge, UK: Cambridge University Press, 218-239.
41. Article 1 (ii and iii) provides: "'Party of origin" means the Contracting Party or Parties to this Convention under whose jurisdiction a proposed activity is envisaged to take place; (iii) "Affected Party" means the Contracting Party or Parties to this Convention likely to be affected by the transboundary impact of a proposed activity"'.
42. See p. 32 of the Project Information Document (Espoo scoping document) by the company, available at: http://www.nord-stream.com/fileadmin/Dokumente/1-- PDF/2--PIDs/ PID-ENGLISH.pdf (last accessed 2.6.2009).
43. The Russian Federation is not called an origin state because it is not a party to the Espoo Convention.
44. This meant that, in principle, with this decision a large number of origin state-affected state legal relations were created, which were then governed by the Espoo Convention (in the case of the Russian Federation, to the extent permitted by its national legislation).
45. See the dates and places of these meetings, available at: http://www.nord-stream.com/file- admin/Dokumente/Other-Publications/Nord-Stream- Espoo-meetings.pdf (last accessed 2.6.2009). There have also been two expert meetings; the experts were designated by the affected states. See chapter 3 of the Espoo Report, available at: http://www.nord-stream.com/ fileadmin/Dokumente/ eia-permitting/Chapter-03/Nord-Stream-Espoo-Report-English- Chapter-03.pdf (last accessed 2.6.2009).
46. For an overview of how the Espoo process and domestic procedures have proceeded, see chapter 3 of the Espoo Report, available at: http://www.nord- stream.com/fileadmin/Doku- mente/eia-permitting/Chapter-03/Nord-Stream-Espoo- Report-English-Chapter-03.pdf (last accessed 2.6.2009).
47. Note by the Secretariat, 58 (a.vi).
48. English version, November 2006, available at: http://www.nord-stream.com/ fileadmin/ Dokumente/1--PDF/2--PIDs/PID-ENGLISH.pdf (last accessed 2.6.2009).
49. The document is on file with the authors.
50. Ibid..
51. Finland sent the notification letter, dated 14 November 2006, to all eight other affected states, available at: http://www.ymparisto.fi/download.asp? contentid=76086&lan=fi (last accessed 2.6.2009).
52. Finland responded on 16 February 2007, indicating its willingness to participate in these countries' respective EIA processes, available at: http://www.ymparisto.fi/download. asp?contentid=66885&lan=fi (last accessed 2.6.2009). All the affected countries informed Finland that they would participate in the Finnish EIA procedure.
53. The assessment program describes the strategy for the assessment of environmental impacts and public participation and it must also include, on a sufficient scale, alternatives for implementing the project which are studied during the EIA process. Specific content requirements for assessment programs are laid down in Section 9 of the Finnish EIA Decree (713/2006).
54. For an extensive case law analysis from the perspective of EIA quality, see I. Pölönen, "Ympäristövaikutusten arviointimenettely, Tutkimus YVA-menettelyn oikeudellisesta ase- masta ja kehittämistarpeista ympäristöllisen vaikuttavuu den näkökulmasta" (Environmental Impact Assessment Procedure, The Legal Status of EIA and Improvement Needs from an Environmental Effectiveness Perspective) (2007) Suomalaisen Lakimiesyhdistyksen julkaisuja, A-sarja N:o 280. Jyväskylä, 181-186 and 192-204;
55. I. Pölönen, T. Koivurova, "Rajat ylit-tävä ympäristövaikutusten arviointi-vaihtoehtotarkastelun riittävyys ja suhde lupapäätök-sentekoon" (Environmental Impact Assessment in a Transboundary Context: Standards for Adequate Study of Alternatives and Their Relationship to Decision-making) (2009) 3 Lakimies, 371-393.
56. Statement (27.2.2007, UUS-2006-R32-531) of the Uusimaa Regional Environmental Centre on the environmental impact assessment programme, Nord Stream, the Russian Federation-Germany offshore gas pipeline in the Finnish exclusive economic zone. Unofficial translation, available at: http://www.ymparisto.fi/default.asp?contentid=320766&lan=EN (last accessed 2.6.2009).
57. Statement of the Uusimaa Regional Environmental Centre (27.2.2007, UUS-2006-R32- 531), p. 16.
58. According to the Finnish EIA Act (468/1994), the Ministry of the Environment (MoE) has a duty to coordinate Finland́s reply to the notification.
59. The additional answer by the MoE is available at: http://www.ymparisto. fi/download. asp?contentid=63992&lan=en (last accessed 2.6.2009).
60. Additional answer to the Russian Federation, which raises special concerns Finland has with the Russian Federation (Assessment of impacts in the Russian Federation that concern Finland), available at: http://www.ymparisto.fi/ download.asp?contentid=66886&lan=fi (last accessed 2.6.2009).
61. For instance, seabed sediments, remains of weapons and munitions, bird life, impact on fish and fishing, extending the Natura 2000 network to the EEZ and shipwrecks. See supra note 43. Finland also submitted that the developer may want to consider setting up an international advisory board to act as an independent discussion forum for the project. Another proposal was for the developer to organize joint workshops with NGOs that had shown interest in the transboundary EIA procedure. Finland suggested various ways in which the parties of origin and the Russian Federation could harmonize their respective national EIA procedures, for example: in examining the alternatives, aiming for the same level of precision in the impact assessments, coming up with a monitoring program and disseminating information and data to authorities, researchers and the general public.
62. Available at: http://www.ymparisto.fi/download.asp?contentid= 66889&lan=fi (last accessed 2.6.2009).
63. Under the EIA Act (Section 10), the developer is required to "investigate the effects of the project and its various alternatives on the basis of the assessment programme and coordinating authority statement".
64. The third document received in Finland was entitled "the Status of the Nord Stream Pipeline Route in Denmark and in Germany" (October 2008). This document, which studied the alternative routings in Denmark and Germany, was also put on public display in Finland and a number of comments were received. These were only assembled by the MoE and notified to the other affected states. It is important that the MoE points out-in a letter dated 22 January 2009-that because the data in the document are still very general, it can only properly review the adequacy of the EIA documentation when the EIS is completed. Available at: http://www.ymparisto.fi/download.asp?contentid= 97436&lan=fi (last accessed 2.6.2009), p. 1.
65. Available at: http://www.ymparisto.fi/download.asp?contentid= 79195&lan=fi (last accessed 2.6.2009).
66. This alternative is located in the Russian Federation's territorial seas. However, the southern alternative also creates a small deviation for the pipeline route in the Finnish EEZ. Environmental Impact Assessment Report (EEZ of Finland), p. 365.
67. This alternative is located in the Russian Federation's territorial seas. However, the southern alternative also creates a small deviation for the pipeline route in the Finnish EEZ. Environmental Impact Assessment Report (EEZ of Finland), p. 365., Ibid.
68. On the requirement to consider project alternatives under the Espoo Convention, see P. Birnie, A. Boyle, International Law and the Environment, 2nd ed, Oxford: Oxford University Press (2002) at 135;
69. Craik, International Law and the Environment, op. cit., supra note 3, at 139-140, 158;
70. Pölönen & Koivurova, International Law and the Environment, op. cit., supra note 46, at 382, 383.
71. Available at: http://www.ymparisto.fi/download.asp?contentid= 79195&lan=fi (last accessed 2.6.2009), p. 2.
72. Tallinn, 21 September 2007, no.60 (Refusal to give consent to conduct marine research), available at: http://www.valitsus.ee/brf/failid/otsus-21-09- 2007-eng.pdf (last accessed 2.6.2009).
73. Press release, only in Finnish, available at: http://www.ymparisto.fi/ default.asp?contentid= 307254&lan=fi&clan=fi (last accessed 2.6.2009).
74. See pp. 321-322 of the Espoo Report.
75. Press release, only in Finnish, available at: http://www.ymparisto.fi/ default.asp?contentid= 313477&lan=fi (last accessed 2.6.2009).
76. See further infra note 74.
77. Comment released on 8 June 2009, "Consultation in accordance with Articles 4 and 5 of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) for the Nord Stream Gas Pipeline" (dated 5.6.2009), available at: http://www. ymparisto.fi/download.asp?contentid= 104223&lan=fi (last accessed 10.6.2009).
78. Ibid., 4. Finland is also concerned about the proposed detonations of munitions close to its border and requests further data-both from the Russian Federation and the company-on this, as well as on the possible mitigation measures available.
79. Consultation in accordance with Articles 4 and 5 of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) for the Nord Stream Gas Pipeline, Ibid., 3. "With regard to the above impacts, Finland requests Sweden and the Russian Federation to provide information that is specific to the border locations, including information about the construction activities taking place in the vicinity of the border, the baseline data of the environment, an impact assessment of these areas, and individual mitigation measures".
80. Consultation in accordance with Articles 4 and 5 of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) for the Nord Stream Gas Pipeline, Ibid., 4. Finland is also concerned about the planned routing of the pipeline in the Swedish and Danish sectors as regards the dispersal of wartime dumping sites of chemical weapons, in particular the worst-case scenario that the dispersal of such chemicals might accumulate in marine populations and thus have a very wide area of impact across the ecosystems. There- fore, Finland has asked Sweden and Denmark-in the case that these routes are chosen-to carry out "proper risk assessments and management plans, including a description of trans- boundary impacts".
81. Consultation in accordance with Articles 4 and 5 of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) for the Nord Stream Gas Pipeline, Ibid., 6.
82. Consultation in accordance with Articles 4 and 5 of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) for the Nord Stream Gas Pipeline, Ibid., 5.
83. Consultation in accordance with Articles 4 and 5 of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) for the Nord Stream Gas Pipeline, 5. Ibid.
84. Consultation in accordance with Articles 4 and 5 of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) for the Nord Stream Gas Pipeline, Ibid., 7.
85. Consultation in accordance with Articles 4 and 5 of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) for the Nord Stream Gas Pipeline, Ibid., 7.
86. The UREC issued its statement on 2 July 2009. It stated that the EIS-as it concerns the part of the pipeline traversing the Finnish EEZ-is adequate, although it also requested clarifications and explanations from the company with respect to several issues to be submitted to the permit decision-maker, for instance, more specific risk assessment, in particular on how the pipeline relates to increasing vessel traffic in the Gulf of Finland; detailed assessment of the impacts on the fisheries over the whole life cycle of the proposed pipeline, including impacts on cross-border fisheries; and more specific monitoring programmes that need to be done together with the officials and expert organisations (altogether 15 clarification requests). Available at: http://www.ymparisto.fi/download.asp?contentid=105588&lan=fi (last accessed 10.12.2009).
87. This will be done on the basis of the Act on EEZ (1058/2004). The Finnish Government made this decision on 5 November 2009. It granted permission to the developer on the basis of the Act on EEZ, but subjected it to 11 conditions altogether, e.g., that the project must be implemented in accordance with the principle of precaution, paying particular attention to the fragility and vulnerability of the Baltic Sea. The Finnish Government expects that the developer can satisfy the requirements of the Finnish Water Act in these respects. The decision is to be taken in the near future by the Western Finland Environmental Permit Authority. See the decision in Finnish by the Finnish Government, available at: http://www.tem.fi/ files/25067/307-VN-NordStream- suostumus-051109.pdf (last accessed 10.12.2009).
88. This will be done on the basis of the Water Act (264/1961).
89. See supra note 19.
90. See, e.g., Estonia's response to the company's mid-term (October 2007) report (Status of the Nord Stream Pipeline Route in the Baltic Sea), No. 13-3-1/07/57953, 17 January 2008, available at: http://www.ymparisto.fi/ download.asp?contentid=80150&lan=fi (last accessed 2.6.2009)
91. and Poland's response, DOOS-082/8412-3/08/IS, Warsaw, 18 January 2008, available at: http://www.ymparisto.fi/download.asp?contentid=80161&lan=fi (last accessed 2.6.2009).
92. Ibid., available at: http://www.ymparisto.fi/download.asp?contentid= 79195&lan=fi (last accessed 2.6.2009).
93. Application of the Convention to complex activities, note by the Secretariat (ECE/MP. EIA/WG.1/2009/4, 2 March 2009, supra note 14.
94. Ibid., para. 13.
95. Ibid..
96. The most important international convention here is the 2003 Protocol on Strategic Environmental Assessment (SEA Protocol; 21 May 2003, Kiev, Ukraine, available at: http:// untreaty.un.org/English/notpubl/27-4bE.pdf (last accessed 24.1.2010)) to the Convention on Environmental Impact Assessment in a Transboundary Context, which, even though not yet in force, will likely enter into force soon, given that out of the sixteen instruments of ratification (which will trigger the process for its entry into force according to Article 24), 13 have already been deposited (European Community approval cannot be counted for this purpose). Available at: http://www.unece.org/env/eia/documents/ legaltexts/protocolenglish.pdf (last accessed 10.12.2009).
97. For a comprehensive study, see S. Marsden, Strategic Environmental Assessment In International & European Law: A Practitioner's Guide (2008) London: Earth-scan Publications.
98. For a comprehensive study, see S. Marsden, Strategic Environmental Assessment In International & European Law: A Practitioner's Guide (2008) London: Earth-scan Publications., Ibid., para. 14.
99. For a comprehensive study, see S. Marsden, Strategic Environmental Assessment In International & European Law: A Practitioner's Guide (2008) London: Earth-scan Publications., Ibid., para. 16.
100. The provisional agenda is available at: http://www.unece.org/env/ documents/2009/eia/ wg.1/ece.mp.eia.wg.1.2009.1.e.pdf (last accessed 2.6.2009).
101. One of the present authors (T.K.) was invited to present in this seminar; Observations by Timo Koivurova during the seminar in Geneva on 12 May 2009.
102. See supra note 15.
103. For a useful illustration as to how many ways there are to perceive the Baltic Sea Gas Pipeline project, see, e.g., R. L. Larsson, Nord Stream, Sweden and Baltic Sea Security FOI-R-- 2251-SE, Base data report, March 2007, Defence Analysis. Available at: http://lsa.umich. edu/UMICH/ceseuc/Home/ACADEMICS/ Research%20Projects/Energy%20Security%20 in%20Europe%20and%20Eurasia/ Nord%20Stream,%20Sweden%20and%20Baltic%20 Sea%20Security.pdf (last accessed 10.6.2009).
104. Observations by Timo Koivurova during the Working Group on EIA meeting on 12 June 2009. Confirmation received from Matthias Sauer from the Federal Ministry for the Environment, Nature Conservation and Nuclear Safety Division as to the correctness of the observation (on 3 June 2009).
105. Ibid., para. 58 (b.i.).
106. Ibid., para. 16.
107. See supra note 17.
108. For interesting suggestions, see B. Flyvberg, "Policy and Planning for Large-Infrastructure Projects: Problems, Causes, Cures" (2007) 34 Environment and Planning B: Planning and Design (EPB) 578-597.
109. The sub-regions are the following: Baltic Sea (Denmark, Estonia, Finland, Germany, Latvia, Lithuania, Poland, Russian Federation, Sweden), Black Sea (Bulgaria, Georgia, Romania, Russian Federation, Turkey, Ukraine), Caspian Sea (Azerbaijan, Iran (Islamic Republic of ), Kazakhstan, Russian Federation, Turkmenistan), Caucasus (Armenia, Azerbaijan, Georgia), Central Asia (Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, Uzbekistan), Eastern Europe (Belarus, Republic of Moldova, Ukraine), Mediterranean Sea, South-Eastern Europe (Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Greece, Montenegro, Romania, Serbia, The former Yugoslav Republic of Macedonia), available at: http://www.unece.org/env/eia/ subregions.html (last accessed 10.6.2009).
110. For a recent discussion on this topic, see the paper prepared for the meeting of the Working Group on EIA (ECE/MP.EIA/WG.1/2009/32 March 2009), available at: http://www.unece.org/env/documents/2009/eia/wg.1/ece.mp.eia. wg.1.2009.3.e.pdf (last accessed 10.6.2009).