Agent Green comments on the draft ministerial order for environmental assessment of forest management plans

To: Ministry of Environment, Waters and Forests

Bd. Libertății no. 12, Sector 5, Bucharest

Dear Minister,

The undersigned Agent Green Association, represented by its president Gabriel Păun, assisted by lawyer Cătălina Rădulescu, pursuant to Art. 7 para. 9 of Law 52/2003 on transparency in public-administration decision-making and Art. 8 of the Aarhus Convention ratified by Law 86/2000,

Makes the following observations:

1. On the public consultation procedure:

1. The new draft normative act was not published in the section entitled TRANSPARENCY on your website, but in another section, thereby hindering the interested public from finding the draft in time.
2. The consultation procedure is also being launched during the holiday period, effectively preventing the interested public from participating in decision-making.
3. Finally, the time available to the public for consultation is extremely short, in breach of the report of the Aarhus Convention Compliance Committee in case 51/2010 against Romania, which requires Romania to set fair public-consultation periods according to the complexity of the proposed normative acts. Given the complexity and importance of the act under discussion, we consider that the deadline and method of communicating it to the public are liable to breach the Aarhus Convention and its principles, as well as the Decision adopted against Romania in the aforementioned case, which we attach.

The public consultation procedure is therefore unlawful in this respect, breaching the Aarhus Convention principles described in detail on the relevant website: https://unece.org/publications/environment-policy/public-participation. The European Union also signed the Aarhus Convention and transposed it through Aarhus Directive 4/2003; correct application of the Convention is thus also part of European law. For obvious reasons, we will refer directly to the Aarhus Convention’s provisions.

We therefore request that the public consultation period be extended by 30 days, the public debate rescheduled at the end of that period, and the announcements published under TRANSPARENCY on your website.

2. The Forest Code’s unlawfulness in relation to European law

The entire procedure is compromised by the Forest Code’s provisions, which this order cannot amend. Articles 21 and 22 of the Forest Code allow forestry works before the environmental regulatory act is issued and require the entire procedure to be completed within 60 days, which makes full environmental and appropriate-assessment studies impossible. The Forest Code must therefore be amended before this order is adopted. The deadlines in the order contradict the Forest Code’s higher-ranking provisions, rendering the proposed ministerial order inapplicable.

3. Conflict of interest

Whenever the protected-area administrator is also the beneficiary of the forest management plan or other forest management plans, the entire environmental assessment procedure is compromised: there is no administrator’s endorsement, since that endorsement is given under a conflict of interest. It is difficult to believe that the same legal entity would refuse to issue an endorsement for its own plan, or another plan when it carries out the same activity elsewhere. The legislative framework concerning this conflict of interest must therefore be corrected, and protected-area administration completely separated from the execution of forestry or any other works.

4. On the content of the draft normative act:

Original text

Proposal

Arguments

Art. 6.

(1) Forest management plans that overlap entirely with natural protected areas of Community interest, and those that overlap partly with natural protected areas of Community interest and contain projects listed in Annexes I or II to Law 292/2018 on the assessment of the effects of certain public and private projects on the environment, shall undergo appropriate assessment.

Art. 6.

(1) Forest management plans that overlap entirely with natural protected areas of Community interest, and those that overlap partly with natural protected areas of Community interest, as well as those in the immediate vicinity of these natural protected areas of Community interest and containing projects listed in Annexes I or II to Law 292/2018 on the assessment of the effects of certain public and private projects on the environment, shall undergo appropriate assessment.

Strategic assessment and appropriate assessment may be necessary when forestry works may affect Natura 2000 sites, even if the plans do not contain the projects in the annexes to Law 292/2018. Restricting these procedures to plans containing such projects is unlawful.

Art. 6 para. (2) Forest management plans that overlap partly with natural protected areas of Community interest and do not contain projects listed in Annexes I or II to Law 292/2018 on the assessment of the effects of certain public and private projects on the environment, as well as those that may have effects, directly or indirectly, on natural protected areas of Community interest beyond the plan’s specific boundaries, shall undergo the appropriate-assessment procedure.

(2) Forest management plans that overlap partly with natural protected areas of Community interest and do not contain projects listed in Annexes I or II to Law 292/2018 on the assessment of the effects of certain public and private projects on the environment, as well as those that may have effects, directly or indirectly, on natural protected areas of Community interest beyond the plan’s specific boundaries, shall undergo the appropriate-assessment procedure.

This article establishes that plans without projects listed in the annexes to Law 292/2018 will undergo only appropriate assessment, and refers only to plans partly overlapping protected areas. This is unlawful in relation to the objectives and purposes of the SEA and Habitats Directives, since plans entirely overlapping a protected area and containing no projects from the annexes to Law 292/2018 may also significantly affect that area. All restrictions making strategic and appropriate assessment dependent on projects from the annexes to Law 292/2018 must be removed, since significant effects on N2000 sites may exist even without such projects.

New Art. 6 para. 2

For forest management plans producing significant effects on nationally protected areas that do not overlap N2000 sites, or those that do overlap them, as well as those in the immediate vicinity of these natural protected areas of Community interest, the same procedure shall be followed for environmental assessment of the forest management plans’ effects on nationally protected species and habitats and on the integrity of nationally protected natural areas.

Art. 6 para. (4) For the plans referred to in para. (2), requesting an appropriate-assessment study is mandatory whenever the competent environmental protection authority cannot exclude, on the basis of objective information submitted by the plan holder and the criteria in Annex 1, which forms an integral part of this methodology, that the forest management plan will significantly affect the site concerned.

(4) For the plans referred to in para. (2), requesting an appropriate-assessment study is mandatory whenever the competent environmental protection authority cannot exclude, on the basis of objective information submitted by the plan holder and the criteria in Annex 1, which forms an integral part of this methodology, that the forest management plan will significantly affect the site concerned.

This paragraph must be removed because, under the precautionary principle in decision-making (https://eur-lex.europa.eu/legal-content/RO/TXT/?uri=LEGISSUM%3Al32042), the environmental authority cannot determine whether a plan has effects without an environmental report or an appropriate-assessment report.

(5) The following shall undergo environmental assessment:

a) forest management plans containing projects listed in Annexes 1 and 2 to Law 292/2018 on the assessment of the effects of certain public and private projects on the environment,

(5) The following shall undergo environmental assessment:

a) forest management plans containing projects listed in Annexes 1 and 2 to Law 292/2018 on the assessment of the effects of certain public and private projects on the environment,

There is confusion between strategic environmental assessment, concerning plans and projects, and environmental impact assessment, as well as confusion concerning the objectives of appropriate assessment. Conducting strategic environmental assessment for plans affecting protected natural areas may produce significant effects even when these are not projects requiring environmental impact assessment. Such provisions must be removed entirely, as they are liable to breach European law.

(6) The following shall undergo screening in the environmental assessment procedure, applying the relevant criteria in Annex 1 to Government Decision 1076/2004:

a. forest management plans not subject to environmental assessment under para. (3)

(6) The following shall undergo screening in the environmental assessment procedure, applying the relevant criteria in Annex 1 to Government Decision 1076/2004:

forest management plans not subject to environmental assessment under para. (3)

Art. 6 para. 3 concerns plans for which screening establishes possible significant effects, making appropriate assessment necessary. This article appears to establish that strategic environmental assessment is necessary when screening establishes that the works have no significant effects. It is therefore illogical for projects that have already undergone screening to undergo the same procedure again.

Art. 6 para. 6 — forest management plans overlapping partly or entirely with natural protected areas of national/international interest or that may have effects, directly or indirectly, on natural protected areas of national/international interest beyond the forest management plan’s specific boundaries.

Art. 6 para. 6 — forest management plans overlapping partly or entirely with, or in the vicinity of, natural protected areas of national/international/Community interest (Natura 2000 sites), or that may have effects, directly or indirectly, on natural protected areas of national/international/Community interest (Natura 2000 sites) beyond the forest management plan’s specific boundaries.

Terminology must be consistent so that it is correctly understood that environmental assessments are also mandatory for plans beyond the boundaries of Natura 2000 sites or nationally/internationally protected natural areas.

Art. 6 superscript 1 is introduced

Art. 6 superscript 1 — for forest management plans overlapping National or Natural Parks, main forestry works such as clear-cutting or progressive cutting are prohibited.

Given climate change reported by the UN in the IPCC report and the European Forest Strategy, it is necessary to increase forest integrity in Romania and establish larger forest areas that will not be commercially logged.

Art. 7 para. 3 point c is introduced

Art. 7 para. 3 point c — the presence of PIN Matra polygons indicating potential virgin/quasi-virgin forests for which supporting studies have not been conducted

The destruction of unstudied forest plots that might meet the criteria in Order 3397/2012 must be prevented.

Art. 7 para. 3 point d is introduced

The presence of primary or old-growth forests that do not meet the criteria for inclusion in the Catalogue of virgin/quasi-virgin forests but require strict protection

Primary or old-growth forests that do not meet the criteria for inclusion in the Catalogue of virgin/quasi-virgin forests remain valuable forests for biodiversity. Their frequent old trees and uneven-aged structures often make them true biodiversity reservoirs for Natura 2000 sites. Furthermore, the European Biodiversity Strategy for 2030 and the Forest Strategy clearly specify strict protection of Europe’s last primary or old-growth forests.

Art. 10 para. 5 — The screening decision for the forest management plans referred to in Art. 6 para. (2) shall give detailed reasons for requesting/not requesting an appropriate-assessment study, also following completion of the checklists under Order 19/2010 of the Minister of Environment and Forests, amended and supplemented by Order 262/2020 of the Minister of Environment, Waters and Forests. The reasons for not requesting an appropriate-assessment study must be based on the forest management plan having no significant impact on the site’s conservation objectives

(5) The screening decision for the forest management plans referred to in Art. 6 para. (2) shall give detailed reasons for requesting/not requesting an appropriate-assessment study, also following completion of the checklists under Order 19/2010 of the Minister of Environment and Forests, amended and supplemented by Order 262/2020 of the Minister of Environment, Waters and Forests. The reasons for not requesting an appropriate-assessment study must be based on the forest management plan having no significant impact on the site’s conservation objectives

In the strategic environmental assessment and appropriate-assessment procedure, the competent environmental protection authority cannot establish during screening whether significant impact exists without detailed studies. Correct terminology refers to the possibility of significant effects.

Appropriate assessment also concerns assessment of significant effects on species and habitats, not on the site’s conservation objectives. The strategic environmental assessment procedure deals with the latter aspect.

Art. 10 para. 7 point e — justification that the plan has no significant impact on the specific conservation objectives of Natura 2000 sites

Art. 10 point 7 point e — justification that the plan has no significant impact on the specific conservation objectives of Natura 2000 sites

There is confusion between the environmental impact assessment procedure regulated by Law 292/2018, which concerns environmental impact assessment, and the environmental assessment procedure, which concerns the possibility of significant effects.

Art. 12.

(1) Finalisation of the draft forest management plan, determination of the scope and level of detail of information to be included in the environmental report, and analysis of the forest management plan’s significant environmental effects shall take place in the working group established under Government Decision 1076/2004.

Art. 12.

(1) Finalisation of the draft forest management plan, determination of the scope and level of detail of information to be included in the environmental report, and analysis of the forest management plan’s significant environmental effects shall take place in the working group established under Government Decision 1076/2004, with public consultation.

Public consultation at this stage is mandatory under the Aarhus Convention and the reports of its Compliance Committee.

Art. 14 (1) Taking account of the information in Art. 13 para. (5), the forest management plan holder shall establish and present to the working group the following:

a) the final alternative for the plan;

Art. 14 (1) Taking account of the information in Art. 13 para. (5), the forest management plan holder shall establish and present to the working group the following:

a) The possible alternatives, including the zero alternative and the proposed alternative for the plan, together with the scientific analysis that determined its selection;

Community law must be respected; presenting only the final alternative is not possible.

Art. 14 (1) point b — measures to prevent and reduce significant environmental effects;

Point c — the programme for monitoring significant environmental effects of implementing the plan

Art. 14 (1) point b — measures to prevent and reduce significant effects on each species and habitat and on the conservation objectives of natural protected areas with which the plan overlaps or in which it produces effects, including cumulative effects of implementing plans that apply or are awaiting approval:

– within natural protected areas at Community/national/international level with which the plan overlaps, or

– in natural protected areas at Community/national/international level in which they produce effects;

Point c — the programme for monitoring significant effects on each species and habitat and on the conservation objectives of natural protected areas with which the plan overlaps or in which it produces effects, including cumulative effects of implementing plans that apply or are awaiting approval:

– within natural protected areas at Community/national/international level with which the plan overlaps, or

– in natural protected areas at Community/national/international level in which they produce effects

Both monitoring and measures must address the specific assessment objectives, not a generic concept.

(1) After the working group finishes its activities under Arts. 16–19 of Government Decision 1076/2004, the forest management plan holder shall announce the following twice in the mass media, at an interval of 3 calendar days, including online on its own website or, as applicable, on the website of the specialist unit certified for forest planning referred to in Art. 21 para. (3) of Law 46/2008, the Forest Code, republished, as subsequently amended and supplemented:

(1) After the working group finishes its activities under Arts. 16–19 of Government Decision 1076/2004, the forest management plan holder shall announce the following twice in mass media with national coverage, at an interval of 3 calendar days, including online on its own website or, as applicable, on the website of the specialist unit certified for forest planning referred to in Art. 21 para. (3) of Law 46/2008, the Forest Code, republished, as subsequently amended and supplemented:

At present, most announcements appear in obscure local newspapers unable to convey information concerning the forest management plan to the interested public.

Art. 18 para. (2) — If comments received during the public debate reveal a potentially significant negative effect, the competent environmental protection authority shall issue a reasoned written order to revise the draft forest management plan to prevent or reduce significant negative effects on the environment and the Natura 2000 site’s specific conservation objectives; the revised documents shall be made available to the public for information on the competent environmental protection authority’s website.

Art. 18 para. (2) — If comments received during the public debate reveal a potentially significant negative effect, the competent environmental protection authority shall issue a reasoned written order to revise the draft forest management plan to prevent or reduce significant negative effects on the environment and the Natura 2000 site’s specific conservation objectives; the revised documents shall be made available to the public for information on the competent environmental protection authority’s website. The public shall have at least 20 days to consult and submit observations and, depending on the complexity of the changes, may request another public debate.

The Aarhus Convention’s provisions on public consultation must be respected.

Art. 20 para. (3) The forest management plan holder shall announce online, on its own website or, as applicable, the specialist unit certified for forest planning referred to in Art. 21 para. (3) of Law 46/2008, the Forest Code, republished, as subsequently amended and supplemented, shall announce on its website the place and timetable for consulting the documents referred to in para. (2).

The plan’s non-technical summary and the environmental endorsement shall be published in full online, on the holder’s own website or, as applicable, on that of the specialist unit certified for forest planning referred to in Art. 21 para. (3) of Law 46/2008, the Forest Code, republished, as subsequently amended and supplemented.

Art. 20 para. (3) The forest management plan holder shall announce online, on its own website or, as applicable, the specialist unit certified for forest planning referred to in Art. 21 para. (3) of Law 46/2008, the Forest Code, republished, as subsequently amended and supplemented, shall announce on its website the place and timetable for consulting the documents referred to in para. (2).

The plan’s non-technical summary The forest management plan and the environmental endorsement shall be published in full online, on the holder’s own website or, as applicable, on that of the specialist unit certified for forest planning referred to in Art. 21 para. (3) of Law 46/2008, the Forest Code, republished, as subsequently amended and supplemented.

If information falls within Art. 4 of the Aarhus Convention, that information shall be removed, with specific reasons given for why it would not be public. Information used for the forest management plan’s environmental assessment may not be removed.

Art. 4 of the Aarhus Convention must be respected in full.

Art. 22 para. (4) During revision of forest management plans, their implementation shall be suspended, except for the forestry activities in the annex forming an integral part of this methodology.

Art. 22 para. (4) Implementation of plans requiring revision shall be suspended from the date this order enters into force, except for the forestry activities in the annex forming an integral part of this methodology.

The original wording allows all forestry works to continue until revision begins, although Romania’s Government is obliged to stop unlawful implementation of forest management plans from the opening of infringement proceedings. Despite this, it does not order suspension and is trying in court to secure the dismissal of applications to annul and suspend the unlawful plans that also underlie the infringement proceedings.

The following is introduced

Art. 22 superscript 1 — for forestry works carried out to date under plans requiring revision, the effects of the completed works on species and habitats protected at Community/national/international level shall be assessed, and environmental restoration measures shall be ordered at the plan holder’s expense

Art. 23.

Failure by forest management plan holders to comply with Art. 22 constitutes an administrative offence and shall be penalised under Art. 96 paras. (2) and (3) of Emergency Government Ordinance 195/2005 on environmental protection, approved with amendments and additions by Law 265/2006, as subsequently amended and supplemented.

Art. 23.

Failure by forest management plan holders to comply with Art. 22 constitutes an administrative offence and shall be penalised under Art. 96 paras. (2) and (3) of Emergency Government Ordinance 195/2005 on environmental protection, approved with amendments and additions by Law 265/2006, as subsequently amended and supplemented

by immediate suspension of the plan and any works, regardless of their stage, until compliance is achieved.

The original wording allows plan holders to pay a minor administrative penalty and continue implementing the plan unlawfully.

Annex 2

to the Methodology

Forestry activities

that may take place during revision of forest management plans

1. Afforestation and reforestation works.

2. Tending of natural regeneration, newly established plantations and young stands (release, cleaning and thinning), and forest sanitation works.

3. Special conservation works, amounting to 8-10% of the stand’s total extraction volume over a period of 10 years.

4. Forestry treatments promoting natural regeneration (selection treatments, conversion to selection treatments, quasi-selection treatments, progressive and successive treatments, strip cutting, selection coppice and simple coppice), amounting to 20-30% of the stand’s total extraction volume over a period of 10 years.

5. Extraction of timber resulting from accidental products (affected by biotic and abiotic factors — windthrow and breakage caused by wind and snow, insect attacks, mass drying, relating to lawful approvals for permanent removal, temporary occupation and changes of land-use category, etc.) and extraordinary products.

Annex 2

to the Methodology

Forestry activities

that may take place during revision of forest management plans

1. Afforestation and reforestation works.

2. Tending of natural regeneration, newly established plantations and young stands (release, cleaning and thinning), and forest sanitation works.

3. Special conservation works, amounting to 8-10% of the stand’s total extraction volume over a period of 10 years.

4. Forestry treatments promoting natural regeneration (selection treatments, conversion to selection treatments, quasi-selection treatments, progressive and successive treatments, strip cutting, selection coppice and simple coppice), amounting to 20-30% of the stand’s total extraction volume over a period of 10 years.

2. Only in exceptional cases and following a justified assessment may timber extraction relating to APV for accidental products (affected by biotic and abiotic factors — windthrow and breakage caused by wind and snow, insect attacks, mass drying) be allowed, subject beforehand to a thorough case-by-case analysis by a commission comprising the entities in Art. 1(6) a)-g), also including other stakeholders such as the interested public.

Permission to intervene must be recorded in writing and include all participants’ objections.

The original wording allows most forestry works with a negative environmental impact to continue, including successive, progressive and strip cutting, thinning and conservation works. In practice, Annex 2 allows unlawful continuation of forestry works that have not undergone appropriate assessment and led Romania into the current infringement proceedings with the European Commission

Lawyer Cătălina Rădulescu

Interested public,

Agent Green Association

President,

Gabriel Păun