BIRN: Government draft on EIAs raises questions about nature protection

The cancellation of Law 21/2024 on Protected Areas is one of the most persistent demands of the marathon protest known as the "Flamingo Revolution" - which has been ongoing for three months under the Prime Minister's office on "Dëshmorët e Kombit" Boulevard in Tirana.

The changes to the law on Protected Areas requested by the protesters also coincide with the requirements that Albania must meet in its approximation to European Union law.

In the midst of this conflict, the Ministry of Environment has released for public consultation a draft decision proposing changes to the Environmental Impact Assessment (EIA) procedures. According to the report accompanying the draft law, this act creates a procedure called “Appropriate Assessment” for projects that may have an impact on special conservation areas.

"The purpose of this draft decision is to integrate requirements for the protection of biodiversity and special conservation areas into environmental impact assessment procedures, through the inclusion of appropriate assessment as part of the process of reviewing projects that may have an impact on these areas," the report states.

On paper, this change aims to integrate biodiversity protection requirements and implement the requirements of the European Union Directive 92/43/EEC. But environmental experts and organizations raise the alarm that this mechanism risks becoming a bureaucratic tool to legitimize after the fact, projects that have already been approved or launched in the network of protected areas.

"The Law on Protected Areas, after the 2024 amendments, remains the subject of serious criticism for its inconsistency with EU standards," said Olsi Nika, head of the environmental organization "Eco Albania."

“'Appropriate Assessment' cannot be treated in isolation from the legal framework for biodiversity and protected areas,” he stressed.

Questions about the draft law

Environmental Impact Assessment, EIA, is one of the most essential preliminary procedures for projects that affect nature. EIAs are prepared by experts contracted by companies or investors and must analyze the potential consequences of a development project on the environment and biodiversity – as well as indicate the steps that need to be taken to protect and rehabilitate the environment.

Despite their importance, EIAs of large projects in Albania have often been criticized by environmental activists as superficial and often lacking complete scientific data.

The Ministry of Environment's report suggests that with the approval of the act that determines how the "Due Assessment" will be conducted, this situation will change in protected areas.

During the implementation of the EIA procedures to date, the need to define more clearly the steps related to projects that may impact or affect special conservation areas has been identified. In the past, according to the report, there has been no such specific instrument and it has not been addressed in a unified manner within the EIA.

“In the absence of detailed procedural provisions, due diligence has not been addressed in a unified manner within the EIA procedures,” the report states.

Proponents say this change aims to raise the standard of environmental decision-making and guarantee effective protection.

But environmental organizations view this with suspicion.

According to Olsi Nika from the "Eco Albania" organization, approximation should not remain only at the terminological level, but should actually guarantee European Union standards in environmental protection.

“There is a legitimate concern that introducing the 'Due Assessment' mechanism now, without first addressing the fundamental conflicts of legislation on protected areas, could transform from a damage prevention instrument into a procedural mechanism for the ex-post legitimization of development projects already planned, approved or initiated,” said Nika.

This concern about the real impact of the law is also shared by the EDEN Environmental Center, which has officially submitted its comments as part of the consultation.

While welcoming the establishment of a qualitative minimum in the procedure, EDEN has identified concrete risks in the legal and territorial implementation of the act.

“A significant issue that we identify in the entirety of the proposed draft relates to the legal and territorial implementation of the draft decision, as well as the risk of creating a gap in the legal protection of potential Natura 2000 areas,” argues EDEN.

The biggest problem, according to EDEN's analysis, is the fact that Albania does not yet have an officially approved list of areas proposed for the "Natura 2000" network. This lack raises the fundamental question of which territories and areas will specifically be subject to the Appropriate Assessment procedure during this transitional period.

Furthermore, the EDEN Center has raised several procedural issues, highlighting that the draft act attributes functions to the “authority responsible for the management of special conservation areas”, without explicitly identifying which institution this is. According to them, this lack of identification leaves room for ambiguity regarding institutional competence.

In addition to regulating the powers, the organization has recommended increasing transparency, requiring that the Due Diligence Report and the related decisions be published and accessible to the public. The lack of a clear methodology on the basis of which the need for due diligence in the preliminary phase will be determined remains, according to EDEN's comments, another weak link in the submitted draft./ BIRN