Increasing Legal Certainty in the European SEA Directive: A Much-needed List Approach to Specifying Types of Plans and Programmes

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Keywords: Strategic environmental assessment; European SEA Directive; SEA; energy plans and programmes; assessment of the effects of certain plans and programmes on the environment, specifying types of plans and programmes.

Abstract: The European Directive on Strategic Environmental Assessment (SEA) provides three approaches to implementation in Member States, i.e. a case-by-case approach, a list approach, and a mixed approach. However, the European Commission appears unwilling to develop the latter two approaches, which may make the SEA Directive's scope unclear and create legal uncertainty. The aims of this article are to point out the weaknesses of the current case-by-case approach and to advocate a much clearer but underdeveloped approach, i.e. the list approach. To this end, the article will explore the issue of legal certainty in the SEA Directive, identify and resolve the challenges involved in a list approach, and finally present a step-by-step guide to developing such an approach.


Since the emergence of the environmental movement in the 1970s, environmental law' has been mainly concerned with integrating environmental considerations into the decision-making process. Accordingly, two major mechanisms have been created. On the one hand, environmental assessment at the project level, i.e. environmental impact assessment (EIA), has been introduced to take account of the environmental effects of individual projects.1 However, such a project-based approach has certain limitations: indeed, it fails to integrate broader and more diverse aspects of environmental concerns into the decision-making process, to find alternative visions and development intentions, and to facilitate greater transparency and more effective public participation at the strategic decision-making level. Therefore, on the other hand, a supplementary mechanism, strategic environmental assessment (SEA), has been created and introduced into European environmental law by the European SEA Directive. This new approach aims to address the above defects by enhancing the level of assessment beyond projects. In particular, it aims to remedy the insufficiency of EIA, and to reinforce environmental integration within a wider community Its importance has been confirmed by numerous documents and conventions.

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