What is a “reasonable alternative” for a development project?
An environmental impact assessment report must contain a description of the alternatives for the proposed project that were studied: the investor’s proposal, the most environmentally beneficial alternative, and a reasonable alternative. The last notion raises the most doubts.
Preparing an environmental report is one stage in environmental impact assessment (EIA) proceedings under Poland’s EIA Act (the Act on Access to Information on the Environment and Environmental Protection, Social Participation in Environmental Protection and Assessments of Environmental Impact). Conducting an EIA is essential in the case of projects that are regarded as always causing a significant environmental impact, and when ordered by the competent authority in the case of projects potentially causing a significant environment impact. (Note that new regulations governing the content of EIA reports entered into force at the beginning of 2017.)
Alternatives
As a rule, an environmental report must present a minimum of three methods for carrying out a proposed development project: the project as proposed by the developer, a reasonable alternative, and the alternative most beneficial to the environment. It is essentially impossible to escape the obligation to examine alternatives in the report. This obligation is intended to enable a broader selection than just carrying out the proposed project or nothing at all. For this reason, the description of the alternatives studied is essential for proper conduct of the EIA for the project. If it appears from the assessment that it would be justified to carry out the project under an alternative other than that proposed by the developer, the competent authority will, with the investor’s consent, indicate the project that can be realised, or, lacking such consent, will refuse to approve realisation of the project. As indicated in the case law, the variant proposed by the applicant may also be the option that is the most beneficial for the environment (and then only two options need to be presented), but the applicant’s proposal can never be the same as the reasonable alternative (Supreme Administrative Court judgment of 27 August 2014, Case II OSK 464/13).
If the report lacks an appropriate description of the alternatives studied, it will have serious practical ramifications, because the report does not comply with the EIA Act. Consequently, the developer cannot obtain an environmental decision, or if a decision is issued despite a defective report, the developer is at risk of having the decision overturned. This will generate additional costs to supplement the defective report, and significantly delay the project.
Reasonable alternatives
In the context of properly examining alternatives for a project, it is most problematic to describe the “reasonable alternative.” The law does not define this notion in any way or provide criteria for determining a specific alternative to the project to be indicated in the environmental decision. It is clear, however, that the description of the alternatives studied must be accurate and precise, so that the authority considering the matter can examine whether the project should be carried out under the plan proposed by the developer or under an alternative plan. In each case, preparation of the description of the reasonable alternative requires an individual assessment of the environmental impact that would follow if that alternative were implemented. And it must always meet the two criteria indicated in the law: it must be “reasonable” and it must be an “alternative.” If it lacks either of those characteristics, the report will be defective.
The “reasonableness” of an alternative means that it could actually be selected by the authority evaluating the report in place of the variant proposed by the developer. A reasonable alternative cannot be merely abstract or theoretical. Thus an alternative should not be presented that would not be actually or technically feasible or would be doomed to failure (e.g. for financial reasons). It is also stressed in the case law that economic criteria may serve as an element justifying the selection of the specific option, but do not justify avoiding an analysis of a reasonable alternative in the report (Supreme Administrative Court judgments of 14 November 2012, Case II OSK 1238/11, and 20 May 2014, Case II OSK 2999/12).
In turn, the “alternative” aspect means that the reasonable alternative must differ from the plan proposed by the investor in terms of environmental impact. For this reason, the zero (baseline) variant—i.e. not carrying out the project at all—is not considered a reasonable alternative because it does not involve environmental impacts. Besides, apart from the requirement to describe the specific alternatives, the EIA Act requires the developer to describe in the report the anticipated consequences for the environment if the project is not carried out, meaning that the zero variant is not an “alternative.” To be “alternative,” the option generally must differ from the developer’s proposal in spatial terms (e.g. location, scale and dimensions) or technological terms (e.g. the type of materials used or the capacity and productivity of the equipment). Other differences can also be cited, e.g. under economic or social criteria. It is undisputed that a reasonable alternative cannot be illusory—i.e. the developer cannot propose as an alternative to carry out essentially the same project, at the same location, with only slight technical differences. But when describing the alternative, it is also important to maintain the same type of project; suggesting an alternative must not lead to proposal of what are essentially two entirely different projects.
Concluding remarks
Errors in environmental reports concerning reasonable alternatives to project proposals most often involve an insufficiently precise description, suggesting an illusory alternative, or indicating an alternative that is not feasible or does not actually exist in the case of the relevant project. Indisputably, the alternatives for the proposed project must be studied individually. But inclusion of alternatives in the report is mandatory, even if the developer is only interested in carrying out the project under its own approach.
Gaps or defects in terms of proposed alternatives for the project expose the developer to the risk of questioning the correctness of the report, and consequently, complications in obtaining a final decision on environmental conditions for the project. Ensuring that the environmental report contains a proper description of the alternatives studied minimises these risks and increases the chances for a quick and positive completion of the environmental impact assessment proceeding.
Wojciech Szopiński, Environment practice, Wardyński & Partners
