Serbia on the Road to EU Accession: Securing ambition for Chapter 27 CSOs’ assessment on the Progress of Serbia in Chapter 27: Environment and Climate Change Reported period: September 2014 – December 2015 EU accession negotiation: How far did Serbia get? Serbia officially opened the accession negotiation with the EU in January 2014. It took nearly two years to actually open the first chapters in the process. This has finally happened in December 2015, when the EU approved opening of the two chapters: Chapter 32 on financial controls and Chapter 35 on relations with Kosovo*1. Two open Chapters are undoubtedly important and politically challenging. However, it must not be forgotten that Chapter 27, dealing with environment and climate change, is one of the most challenging negotiation chapters. It stands for one third of the total EU legislation that needs to be transposed and implemented. It is also one of the chapters that will require the most investment: According to the National Environmental Approximation Strategy for Republic of Serbia (NEAS), it will require more than 10 billion euros to meet all the necessary requirements in this field. This is a conservative assessment made in 2011 and it does not take into account any recent policy developments in the EU. Ever since the EU started tracking Serbia’s progress to the EU, this Chapter has been marked very poorly. Since the accession talks are picking up speed, there should be no more excuses justifying the marginalisation of this important topic. In September 2015, the Serbian government adopted a planning document Transposition and Implementation of Environmental and Climate Change Aquis - Chapter 27: Status and Plans, setting out the aim of the Republic of Serbia is to achieve full internal alignment of the Serbian national legislation with the EU acquis by the end of 2018. This means that the work needs to start immediately, with no further ado. However, the speed of transposition must not be to the detriment of a transparent and inclusive policy-making process. It must also ensure that adequate implementation will follow, as otherwise the work will be in vain. Who prepared this report and why? The report in front of you is a joint contribution of civil society organisations to the discussion on environmental and climate change concerns that await our society as a whole. This report was jointly prepared by seven civil society organisations from Serbia: Belgrade Open School, Centre for Ecology and Sustainable Development (CEKOR), GM Optimist, NGO Fraktal, Environment Improvement Centre, Young Researchers of Serbia, WWF office in Belgrade and Climate Action Network Europe, one of the largest European NGO coalitions working on climate and energy. Listed CSOs are gathered in a group called Coalition 27, founded in June 2014. This report has been prepared with valuable support of the Heinrich Boell Foundation - office for Serbia, Montenegro and Kosovo and in cooperation with Health and Environment Alliance (HEAL) which provided comments and opinion regarding the air quality. We have laid out the main developments in environmental and climate policy in Serbia, analysed challenges and provided recommendations on how to move forward. We hereby express our readiness to be actively involved in the negotiation process and offer our expertise and capacities in order to ensure the best possible outcomes benefiting all the citizens of Serbia. 1 This designation is without prejudice to positions on status, and is in line with UNSCR 1244 and the ICJ Opinion on the Kosovo Declaration of Independence. The decision of the authors is to continue using the name Kosovo without asterisk, which does not reflect the official policy of the Coalition members’ attitude towards the status of Kosovo. 1 The methodology The report is following the thematic framework of the European Commission 2015 Progress Report on Serbia2. When it was appropriate draft legislation has been taken into account. This deviation from the common methodology of Progress report occurred due the fact that environmental policy making process is particularly characterised by the shrinking space for public debate and delay in adoption of legal acts. Insight in policy development process enables better understanding of the state of the art in environmental policy in Serbia. A deviation from the methodology exists in certain thematic areas, as the organisations did not feel qualified enough to make assessments for the following topics: chemicals management, noise, risk management and civil protection. We hope to strengthen our capacities to deal with these policy areas in the future and have more organisations joining us in this endeavour. 2 It is important to note that as of 2015, the European Commission follows a new methodological approach in assessing the country’s progress. Clear descriptions of progress as well as more specific recommendations are seen as a positive step forward. 2 General remarks: Environment is not a priority of the Serbian Government OVERVIEW Environmental protection and climate action are not a priority of the Serbian Government. Limited advance has been made towards the approximation of EU environmental and climate Acquis. Negotiations within Chapter 27 were the priority of the Ministry of Agriculture and Environmental Protection in 2015, while legislative activities had been slowed down, which is characterized by the lack of adequate public debate and insufficient horizontal coordination among governmental bodies. This proves the conclusion that capacities of public administration are limited, as emphasized by the European Commission in previous Progress Reports. Many of our conclusions and assessments correspond to the ones from the 2015 Progress Report on Serbia, published by the European Commission (EC). That report particularly refers to horizontal legislation, where the general impression is that no progress whatsoever has been made over the past year. The participation of civil society and public consultation in decision-making processes must be elevated to a much higher level. That is the mutual standpoint of the EC Report and our analysis. As regard air quality in Serbia, our sources (“Kvalitet vazduha u Republici Srbiji 2014. godine”3) show that three of Serbia’s eight urban agglomerations fall into air quality category III, exceeding the margin of tolerance of several pollutants. The Serbia 2015 report states that seven out of eight agglomerations exceed that margin. Again, mutual standpoints of our report and the one of the EU are that public participation in this area has been far from satisfactory. Air quality protection strategy has not been developed yet. On the other hand, draft National emission reduction plan for the power sector has been developed without an opportunity for the public to take part in the process so far. Also, one of the most important recommendations of both sides is that air quality plan for Belgrade must be adopted as soon as possible. In the area of waste management progress has been made in collection and disposal of hazardous waste. Several projects launched by the Ministry of Agriculture and Environmental Protection confirm the above-stated. Even considering that, project implementation in compliance with EU directives and requirements must be improved. The EU report states that no progress in water quality has been made. However, three relevant documents have been drafted: Water Management Strategy of the Republic of Serbia, National Danube River Basin Management plan and Law on amendments of Law on waters. Our main conclusion in the area of nature protection is that the reporting period is marked with a further marginalisation of decisions and measures in nature protection and prioritisation of building and construction projects. Little has been done in Natura 2000 implementation process. The positive point is that the Law on national parks has been adopted after many consultations and some controversies. The real challenge will be the implementation of that law. Industrial pollution is among the biggest environmental problems in Serbia. In March 2015, the Serbian Parliament adopted amendments to the IPPC Law which allow for the prolongation of the deadline for permits. The deadline is now 2020 for existing installations and it is not welcomed. The new IPPC Law does not provide solutions for discrepancies between requirement of IPPC Directive and related Serbian 3 http://www.sepa.gov.rs/download/VAZDUH2014.pdf 3 non-environmental legislation. Legislation dealing with the prevention of accidents resulting in environmental pollution must be one of the future priorities. Most activities over the past year have been noted in the area of climate change. Serbia submitted its INDC to the Paris conference in June 2015. Development of legal framework for ETS was launched. A working group with representatives of industry, local authorities and civil society was established in 2015. Pre-draft Law on GHG Emission Reduction System was presented in April 2015. Works on comprehensive countrywide climate policy and strategy is slowly moving forward. As regards to finance, the financing system has not been established yet. The Fund for environmental protection was abolished in September 2012. Establishment of an effective and permanent financing system for environment and climate action is emphasized in the Progress Report as a priority of Serbia. The proposed Draft law on environmental protection will not contribute to implementation of the general EU principles related to environment, particularly the polluter pays principle. Inefficient financing framework, with more than 40 million EUR unspent earmarked funds on local level in 2014, diminish the importance of the Polluter pays principle. Due to the non-transparent financial monitoring it is not possible to estimate the unspent funds at national level. The increase of environmental fees income is identified from 2010 to 2014, as well as the amount of unspent money from earmarked local funds. It is identified that 5.3 billion of RSD (approximately 44 million EUR), unspent on local level in 2014, is transferred to 2015. The lack of budgetary control, absence of horizontal cooperation between governmental institutions and undeveloped environmental financing system leads toward ineffective environmental policy performance. At the same time, budgetary centralisation shrinks the space and capacities of local authorities to implement local policies. Deepening the gap between central and local level of governance jeopardises opportunities for implementation of the subsidiarity principle in Serbia. It also encourages mismanagement of environmental public funds and a disrespect for legal obligations. In the period from 2002 to 2014 financial allocations for the environment were symbolic, 0,4 % of national GDP. Having that in mind, the estimation of financial allocation of 144 million EUR, from EU funds, for environmental project related to waste and water management until 20204 should be interpreted with caution due to the obvious absence of managerial and administrative capacities. Public participation and legislative activities RATIONALE Although it has been proclaimed as a key policy issue on the Serbian pathway towards full EU membership, there is no evidence of significant changes in environmental decision making process. Poor legislative activity was spotted with urgent procedures, limited or no public discussions. Despite some positive indications CSOs and the academic community are put aside and public participation is sporadic and not conducted according to Rule of Procedures of the Government of Serbia. Lack of horizontal coordination among governmental institutions seriously jeopardise quality of legislative processes. National Council on Climate Change, established in November 20145, held only two sessions during almost a year of its existence. This Council does not include representatives of civil society organisations nor were any representatives of CSOs (according to our best knowledge) invited to participate in 4 Transposition and Implementation of Environmental and Climate Change Aquis - Chapter 27: Status and Plans, pg. 19. 5 http://www.eko.minpolj.gov.rs/osnovan-nacionalni-savet-za-klimatske-promene/ 4 working sessions. The National Council on Climate Change was informed of the development of Serbian INDC on June 30th 2015. Within the period from April 2014 to October 2015 urgent legislative procedure was conducted in the Serbian Parliament for 151 out of 259 legal acts. When it comes to environmental policy making, the key characteristic is the procrastination of the procedure in adopting and amending key environmental legislative acts (Law on Environmental Protection, Waste Management Law and Law on Nature Protection). Public consultation held in July 2015 was not conducted according to Rule of Procedures of the Government of Serbia. Ignoring the fact that public consultations were held in July, during the summer break, and that three comprehensive legal acts were the subject of the public consultations at the same time, we need to emphasize the lack of horizontal coordination between public institutions. According to official information6, Ministry of Agriculture and Environmental Protection requested an official opinion from the Ministry of Finance on the Draft Law on Environmental Protection a month after public consultations had officially been closed. The Ministry of Finance provided its comments one month after. According to those comments, proposed establishment of the Green Fund is not acceptable. Delays in providing comments on draft laws developed by Ministry of Agriculture and Environmental Protection are identified for several ministries. Having in mind worrisome environmental condition in Serbia this issue should be taken into account seriously since it proves the conclusion that environment is not the priority of Serbian Government. According to the Rule of Procedures of the Government of Serbia it had been the responsibility of the Ministry of Agriculture and Environmental Protection to conduct consultations with relevant public institutions before the consultations with the public were open and to disclose the results of these consultations to the public (Article 40-41 of the Rule of Procedure). Finally, it is the obligation of the responsible institution to announce any public consultation through E-governance portal (http://www.euprava.gov.rs/eParticipacija) and to publish the report on the conducted public consultations (Article 41 of the Rule of Procedure). Since the Ministry of Agriculture and Environmental Protection was not able to facilitate public consultations according to binding rules it has directly contravened the Guidelines for Inclusion of Civil Society Organizations in the Regulation Adoption Process (Official Gazette RS 90/2014). When it comes to documents which do not require official public consultations, but are relevant to environmental policy and adoption of EU environmental standards, the same pattern of limited public participation is identified. INDC was developed without broad public participation. Public was informed about intended contribution to GHG emission reduction on April 20th 2015. Coalition 27 has already expressed its concerns regarding the development of Post-Screening Document and lack of adequate public participation7. DEVELOPMENTS Positive examples worth to be mentioned. Ministry established working groups for development of Law on Environmental Liability and Law on Emission Trading System. Pre-draft versions were announced to the public. Civil society is also involved in the process of establishment of Natura 2000 in Serbia. The Ministry has ensured participation of civil organizations in the national advisory board for Natura 6 Ministry of Finance Official Notes no. 011-00-909/2015 7 Comment on Post-screening Document Draft – Environment and Climate Change is attached to this report. 5 2000. Extensive legal incentives in the water sector during 2015 have also shown willingness of responsible authorities to enable public participation although the process could be much more efficient and transparent. Parliamentary Committee for Environmental Protection became an important platform for discussion and communication between MPs, the Ministry and civil society. However, limited impact of Parliament and insufficient utilization of its monitoring functions diminish the positive influence of discussions within the Parliamentary Committee. RECOMMENDATIONS  From our point of view the first step in solving the problem of administrative burden and lack of public consultation should be proper implementation of the Rule of Procedures of the Government of Serbia and more openness and trust towards civil society. It is important to mention that CSOs, for many years, were the advocates and leaders of EU integration process in Serbia. Ignoring CSOs will not support further effort in aligning with EU acquis.  In 2014, the Serbian government adopted Guidelines for Inclusion of Civil Society Organizations in the Regulation Adoption Process (Official Gazette RS 90/2014). The objectives of the Guidelines are further improvement of CSO participation in the processes of preparation, adoption and monitoring of the implementation of legislation regulating the issues and presenting positions of public interest. Respect of its own official recommendations would significantly improve legislative process in Serbia.  Furthering monitoring of legislative activities in Serbia, by the EU institutions, better communication with environmental CSOs as well as publishing of the opinions given by the European Commission to the drafted Serbian legislation will contribute to the quality of legislative process.  Independence and greater influence of Parliamentary Committee for Environmental Protection should be ensured. The practice of public hearings within the Committee, which provide opportunities for all interest parties for constructive dialogue with MPs before certain legal act enter the legislative procedure within the Parliament, should be encouraged. 1. Horizontal Legislation RATIONALE There has been no progress in transposing horizontal legislation while poor implementation is identified, particularly with regard to EIA and SEIA procedures. Implementation of environmental impact assessment (EIA) and strategic environmental impact assessment (SEA) indicate low capacities of responsible public institutions, lack of proper public participation and great influence of the investors. Local authorities are still struggling with low capacity, low quality of EIA studies and heavy pressure from the investors and politicians. There is no improvement regarding the consultation with the public. Energy Community has identified the problems with EIA procedures in Serbia8. Ensuring that the provisions of the Environmental Impact Assessment Directive are applied in practice, with particular regard to the provisions on public participation and access to justice, is set as one of the priorities for 8 Energy Community Secretariat, Annual Implementation Report, September 1st 2015, pg. 194. 6 Serbia. Procedural shortages are identified in conducting EIA procedures. Significant legal cases of violating the environmental impact assessment procedures speak in favour of the previously-stated. In Administrative Court judgment no. I-1 У 11152/13 the official decree on approval of the environmental impact assessment study for two hydro plants on Lim River in Prijepolje Municipality was annulated in May 2015. Violation of the Law on Environmental Impact Assessment, with regard to right of participation, was identified. At the same time the Court identified the violation of the provision of the ESPOO Convention, since no public consultation on the transboundary effects of the project had been conducted, although the project is predicted to be carried out on the border between two countries, Serbia and Montenegro. The same issue is identified with regard to the environmental impact assessment procedure for the construction on new block of lignite power plant in Kostolac Municipality, close to the Serbian-Romanian border, since transboundary public consultation has never been conducted for the EIA study in 2013. Lack of capacities of environmental CSOs and low interest of the legal professionals for environmental jurisprudence is the main reason that such cases are still rare in front of the Serbian courts. It is identified that local and national authorities omit to conduct SEA for environmental plans and programmes. It is reported that National Emission Reduction Plan for Power Sector was developed but, according to the official information, strategic impact assessment has not been conducted. SEA Directive (2001/42/EC) defines environmental assessment as an important tool for integrating environmental considerations into the preparation and adoption of certain plans and programmes which are likely to have significant effects on the environment. It is clearly stated in SEA Directive (Article 4, General Obligation) that environmental assessment shall be carried out during the preparation of a plan or programme and before its adoption or submission to the legislative procedure. According to EC Progress Report 2015 work on a national emission reduction plan for the power sector was completed. Article 6 defines that draft plan or programme and the environmental assessment report shall be made available to the authorities and the public. Problems with regard to free access to documents are identified. ECO Register of the Environmental Protection Agency is not being updated properly (eg. when searching for National Environmental Approximation Strategy incorrect information about current Ministry displays http://www.ekoregistar.sepa.gov.rs/nacionalna-strategija-za-aproksimaciju-u-oblasti-zivotne-sredine- za-republiku-srbiju). In several cases in 2015 Ministry of Agriculture and Environmental Protection omitted to deliver information of public importance upon the request, according to terms defined by the Law on Free Access to Information of Public Importance. It happened regardless the fact that NPAA witnesses the Directive (2003/4/ЕC) on public access to environmental information is almost completely transposed by the Law on Ratification of the Aarhus Convention, Law on Ratification of PRTR Protocol, Law on Personal Data Protection and Law on Access to Information of Public Importance. Incompatibilities between the Law on Access to Information of Public Importance and the Law on Environmental Protection are identified by the UNECE in Third Environmental Performance Review for Serbia (2015). Law on Environmental Protection provides less favourable terms of access to environmental information than does the Law on Free Access to Information of Public Importance. DEVELOPMENTS However, some improvements are identified in prepared draft laws with regards to transposition of horizontal legislation. Also, the quality of the Annual report on the state of environment has slightly improved. 7 It is important to mention that Draft Law amending the Law on Environmental Protection (which was the subject of public consultation in July 2015) offers the solution for above mentioned incompatibilities between Law on Environmental Protection and Law on Free Access to Information of Pubic Importance. By the second version of Draft Law on Environmental Protection (published for the purpose of public hearing in the National Parliament) definitions of the public authority and environmental information are aligned with the provision of the Aarhus Convention. The incompatibilities between Law on Access to Information of Public Importance and Law on Environmental Protection, in relation to the obligation of the authorities to act in accordance with set deadlines, will be solved since the priority of the Law on Access to Information of Public Importance is approved. The transposition of the Environmental Liability Directive has begun. Working group, consisting of representatives of Ministry and governmental agencies and bodies, Chamber of Commerce, representative of insurance company and civil society organisation, has been established. The first pre-draft version of the Law on Environmental Liability has been developed and discussed with the private sector and interested public. Public discussions regarding the Environmental Liability Directive transposition, currently in its early stage, could serve as a role model for improvement of legislative processes. RECOMMENDATIONS  Respect for legally binding rules for implementation of EIA procedures, and implementation of the principles of Aarhus Convention, are the key elements for an effective horizontal sector.  Unfair political pressure investor influence must be tackled so as the professional and experienced public officials can perform their work more objectively.  Principles of sustainable development must be respected as a framework for projects with obvious adverse effects on the environment. Nature protection, particularly in natural protected areas must prevail towards particular economic interests.  Interests and specificities of local communities must be taken into account in project development, particularly in water management, waste and renewable energy. 2. Air Quality OVERVIEW Monitoring system data availability is reducing year after year. This is putting in doubt the achievements in better air quality. Some progress was made in drafting document with the aim to improve air quality, but no progress was made when it comes to the adoption or implementation of the documents. RATIONALE There have been improvements since 2014 in air quality in 2 out of 8 agglomerations in Serbia. The annual update of air quality9 showed that three of Serbia’s eight urban agglomerations fall into air quality category III, exceeding the margin of tolerance of several pollutants. Improvements have been noted since 2014 in air quality in two agglomerations: Belgrade (from category III (over-polluted) to category II (moderately polluted)), and Kosjerić (from category II (moderately polluted) to category I (clean to slightly polluted)). However, there has been reduction in operational air quality monitoring 9 “Kvalitet vazduha u Republici Srbiji 2014. Godine” http://www.sepa.gov.rs/download/VAZDUH2014.pdf 8 carried out in 2014 in comparison to previous years. Majority of the monitoring system missing in the analysis are from agglomeration Belgrade. Draft Air quality plans for Belgrade entered public consultations. Public participation in the process lasted 2 weeks. That period is completely inadequate to allow proper assessment of a 170-page document that represents the action plan for better air quality. Such a process hampers the comprehensive participation of the public in environmental decision-making. Moreover, to date, draft air quality plan for Belgrade has not been adopted. It cannot be determined with certainty what the barriers in the adaptation of the plan are. Due to the obligations under the Energy Community Treaty Serbia has started work on a National Emission Reduction Plan (NERP) for its power sector, in order to achieve nationwide emission reduction. It is reported that NERP is submitted to Energy Community Secretariat. Full functioning Air quality monitoring systems need to assure the full functioning in order to provide unbiased data for air quality in the country. Speeding up, ensuring transparency and public participation in the process of adopting Air quality plans for Belgrade and other cities urgently need. RECOMMENDATIONS  Air quality monitoring systems need to be improved, particularly in agglomerations such as Belgrade.  Transparent public participation needs to become a priority. 3. Waste management OVERVIEW The current situation of waste management is not satisfactory. Formal commitments are either partially fulfilled or unfulfilled completely – which is blocking the progress in this area. New legislation is still in the provisional phase; adopted legislation is faced with significant barriers on the implementation level. The two key documents intended to replace the old ones are still in preparation phase. The new Waste Management Strategy is under development as well as amendment to the Law on Waste Management. Drafting of the new Waste Management Strategy is taking place without proper public debate over the results, strengths and weaknesses of the previous Strategy (2010-2019). Although the Draft Law on Amendments to the Law on Waste Management was subject to public hearing back in October 2013 and according to the Action Plan for meeting the recommendations of the European Commission in February 2014 the adoption of this law was planned for the first quarter of the same year, the current stage of the development is unknown. Full compliance with the Waste Framework Directive has not been achieved and the implementation of other adopted legislation facing significant barriers in implementation. 9