The Application of the European SEA Directive in the Energy Sector: An Attempt to Develop the List Approach to 'Specifying Types of Energy Plans and Programmes'

Abstract

After four years of efforts to implement the European Directive on strategic environmental assessment (SEA), it remains unclear whether decision-making should actually be subject to the SEA Directive. Unlike the approaches adopted by the European Directive regarding the Environmental Impact Assessment (EIA) to facilitate its implementation, three usual approaches adopted by the European SEA Directive may jeopardize its actual implementation. These include the following: (1) No indicative list provided for plans and programmes (PPs); (2) lack of thresholds for PPs, which are likely to have significant environmental effects (LSEE); (3) the scope and types of SEA PPs is broader and more diverse than that of EIA projects. One potential method to resolve this implementation issue has been pointed out in Article 3(5) of the SEA Directive, which indicates the need to consider and develop multi-approaches, including case-by-case, list, and mixed approaches. However, the dominant SEA-related scientific and legal studies so far have focused on the development of the case-by-case approach, with less attention paid to the advantages and development of the latter two approaches. The main goals of this article are to develop the list and the mixed approaches to facilitate the actual implementation of the SEA Directive, and to apply such approaches to the energy sector, which serves as an exemplar of a traditionally environmentally-sensitive sector. As such, a broad survey of the following three areas will be conducted: energy decision-making from existing SEA cases, provision of energy decision-making in related international, European, and national legislations, and energy and climate change policy papers in selected countries. This article will further evaluate whether the aforementioned energy decision-making processes meet the criteria outlined in the SEA Directive and whether such decision-making processes should be put on the energy SEA list. Finally, a draft 'SEA Directive: Guidance for Energy Plans and Programmes' will be provided at the end of this article.