circumstances, Turkey cannot be forced to accept compulsory obligations related to
transboundary EIA, but there is no legal impediment to Turkey conducting transboundary EIA voluntarily on a bilateral or multilateral basis. There are a few cases
where Turkey is involved in a transboundary EIA process as well. Besides the
Baku-Tiblis-Ceyhan pipeline project, a draft protocol was concluded between
Turkey and Bulgaria with respect to transboundary aspects of the Nabucco Project
(which was then cancelled), which involved transboundary consultation and
exchanges of information (Güneş, 2007).
The EU accession process directed institutional developments towards the provision of more comprehensive EIAs. Turkey’s candidacy for full membership
increased the motivation to incorporate EU environmental standards. Being one of
the most significant horizontal legislations, the EU Directive on EIA constitutes a
primary legislative tool towards which the Turkish EIA system has been aligned.
Turkish EIA legislation has evolved and has acquired a highly competent legislative standard compared to EU EIA legislation, but since 1993 it has been
confined solely to EIA at project level. The EIA legislation falls short of covering
EIA on policies, plans and programmes. This narrow conception of EIA has been
supplemented by the adoption of legislative and institutional measures on Strategic
Environmental Assessment (SEA). The Draft By-Law on SEA, which was prepared
in 2005 by the Ministry of Environment and Forestry (MoEF), entered into force in
2017.
Turkey’s strategy of adaptation to the EU environmental Acquis, which requires
the transposition of the EU SEA Directive as well as the EU EIA Directive, was
reflected in Article 4 of the SEA By-Law, which is entitled “Adaptation to
European Union Legislation”, and includes confirmation that “This By-Law has
been prepared in accordance with the legislation of the EU taking into consideration
the European Parliament and the Council Directive on the Evaluation of
Environmental Impacts of Certain Plans and Programmes dated 27/6/2001 and
numbered 2001/42/EC”.
Transboundary EIA, which exists in the EU Acquis, has not been incorporated in
Turkish legislation, and this omission was reported by the EU in the Progress
Reports on Turkey. The latest EU Progress Reports on Turkey reiterated that EU
horizontal legislation has largely been transposed in terms of both EIA and SEA,
with the exception of transboundary EIA. Concerning the practical application of
EIA, the exemption of various mega and infrastructure projects from the EIA
process was expressed as a concern. The court decisions related to these exempted
projects were considered a positive stance which is expected to be influential in the
practice of EIA (Turkey’s Progress Report, 2018).
Court Decisions related to EIA also deserve attention with respect to the legal
foundations of EIA in Turkey. There are various administrative law cases related to
the annulment of the EIA decisions of the MoEU which were approved by the
Council of State as the highest administrative court of appeal. On the other hand,
the Council of State has repealed the provisions of the EIA By-Law which are
contrary to the Environment Code (Alıca, 2011).
86
Ş. Güneş
transboundary EIA, but there is no legal impediment to Turkey conducting transboundary EIA voluntarily on a bilateral or multilateral basis. There are a few cases
where Turkey is involved in a transboundary EIA process as well. Besides the
Baku-Tiblis-Ceyhan pipeline project, a draft protocol was concluded between
Turkey and Bulgaria with respect to transboundary aspects of the Nabucco Project
(which was then cancelled), which involved transboundary consultation and
exchanges of information (Güneş, 2007).
The EU accession process directed institutional developments towards the provision of more comprehensive EIAs. Turkey’s candidacy for full membership
increased the motivation to incorporate EU environmental standards. Being one of
the most significant horizontal legislations, the EU Directive on EIA constitutes a
primary legislative tool towards which the Turkish EIA system has been aligned.
Turkish EIA legislation has evolved and has acquired a highly competent legislative standard compared to EU EIA legislation, but since 1993 it has been
confined solely to EIA at project level. The EIA legislation falls short of covering
EIA on policies, plans and programmes. This narrow conception of EIA has been
supplemented by the adoption of legislative and institutional measures on Strategic
Environmental Assessment (SEA). The Draft By-Law on SEA, which was prepared
in 2005 by the Ministry of Environment and Forestry (MoEF), entered into force in
2017.
Turkey’s strategy of adaptation to the EU environmental Acquis, which requires
the transposition of the EU SEA Directive as well as the EU EIA Directive, was
reflected in Article 4 of the SEA By-Law, which is entitled “Adaptation to
European Union Legislation”, and includes confirmation that “This By-Law has
been prepared in accordance with the legislation of the EU taking into consideration
the European Parliament and the Council Directive on the Evaluation of
Environmental Impacts of Certain Plans and Programmes dated 27/6/2001 and
numbered 2001/42/EC”.
Transboundary EIA, which exists in the EU Acquis, has not been incorporated in
Turkish legislation, and this omission was reported by the EU in the Progress
Reports on Turkey. The latest EU Progress Reports on Turkey reiterated that EU
horizontal legislation has largely been transposed in terms of both EIA and SEA,
with the exception of transboundary EIA. Concerning the practical application of
EIA, the exemption of various mega and infrastructure projects from the EIA
process was expressed as a concern. The court decisions related to these exempted
projects were considered a positive stance which is expected to be influential in the
practice of EIA (Turkey’s Progress Report, 2018).
Court Decisions related to EIA also deserve attention with respect to the legal
foundations of EIA in Turkey. There are various administrative law cases related to
the annulment of the EIA decisions of the MoEU which were approved by the
Council of State as the highest administrative court of appeal. On the other hand,
the Council of State has repealed the provisions of the EIA By-Law which are
contrary to the Environment Code (Alıca, 2011).
86
Ş. Güneş