Legal framework under EU law

Denmark is a member of the EU, and a number of EU directives lay down environmental and planning requirements relevant to NSP2. These are described in the following, with reference to the relevant sections of the directives.

Legal basis for procedure and public participation EIA Directive

The EIA Directive /16/ requires that public and private projects that are likely to have significant effects on the environment are assessed on the basis of an EIA before permits are granted.

Pursuant to the EIA Directive, as implemented in the EIA Act /11/, see section 4.1.2 above, permits for the construction of pipelines for the transportation of gas, oil or chemicals and with a diameter exceeding 800 mm and a length of more than 40 km may only be granted on the basis of an EIA.

As the dimensions of NSP2 exceed these specifications, an EIA in accordance with the above-mentioned regulation is required.

Environmental Information Directive and Public Participation Directive in the environ-mental area

The Environmental Information Directive /17/ and the Public Participation Directive /18/ were adopted by the EU to ensure compliance with the requirements of the Aarhus Convention (see section 4.3.2).

The Environmental Information Directive guarantees the public access to environmental infor-mation held by or for public authorities, both upon request and through active dissemination. It sets out the basic terms, conditions and practical arrangements where access upon request may be exercised.

The Public Participation Directive provides for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending them with regard to public participation and access to justice.

Provisions for public participation in environmental decision-making are also found in the EIA Di-rective /16/.

In Denmark, the Environmental Information Directive and Public Participation Directive are imple-mented, inter alia, in the Environmental Information Act /14/.

The Environmental Information Act applies to all public authorities⁴, including the DEA, which must generally make environmental information (as defined in s. 3 of the Act) available to the public upon request. This may include information submitted to the DEA by NSP2.

Under section 24(2) of the EIA Act /11/, the DEA must, after having reviewed the EIA report, submit it for consultation with the affected authorities and the public pursuant to the rules on consultation in sections 35 and 38 of the EIA Act.

Public participation in relation to NSP2 is described in section 4.4.

Legal basis for main environmental requirements Habitats Directive

The Habitats Directive /19/ ensures the conservation of a wide range of rare, threatened or endemic animal and plant species, and establishes the EU-wide Natura 2000 ecological network ("Natura 2000 network") of protected areas, safeguarded against potentially damaging developments.

4 Authorities etc., which fall within the scope of s. 1 of the Public Administration Act (forvaltningsloven) (Consolidated Act no. 433 of 22 April 2014, as subsequently amended). The Environmental Information Act also applies to bodies, including natural and legal persons who have public responsibilities or performing public functions or services related to the environment and which are subject to public scrutiny.

The Natura 2000 network is the largest ecological network in the world, ensuring biodiversity by conserving natural habitats and wild fauna and flora in the territory of the EU. The network com-prises special areas of conservation designated by EU States under the Habitats Directive. Further-more, the Natura 2000 network also includes special protection areas classified pursuant to the Birds Directive /20/.

Annexes I and II of the Habitats Directive contain the types of habitats and species whose conser-vation requires the designation of special areas of conserconser-vation. The Habitats Directive sets out that an appropriate assessment procedure is to be performed to assess the project’s compatibility with the preservation objectives of protected Natura 2000 sites.

The Habitats Directive is implemented in Danish Law through a number of orders (or regulatory instruments), including, inter alia, the Act on the Continental Shelf and Certain Pipeline Installations in the Territorial Waters /7/ and the Administrative Order on Impact Assessment Offshore /12/.

The Danish Natura 2000 sites have been designated in accordance with the Administrative Order on Designation and Management of International Nature Conservation Areas and the Protection of Certain Species (bekendtgørelse om udpegning og administration af internationale naturbeskyt-telsesområder samt beskyttelse af visse arter) /21/, which also sets out rules for the management of the sites.

Pursuant to the Act on the Continental Shelf and Certain Pipeline Installations in the Territorial Waters /7/, the Administrative Order on Impact Assessment Offshore /12/, for a project that is likely to significantly affect a Natura 2000 site, i.e. a designated international nature protection area (SACs, SPAs and Ramsar sites) within or outside Danish territory, the project shall, inter alia, present an impact assessment of its implications for the site in terms of conservation objectives, and the assessment must show that the project will not harm the international nature protection area. A construction permit can be issued if the project does not adversely affect the integrity of a Natura 2000 site, or if weighty societal considerations, including of a social or economic nature, make it imperative to implement the project because no alternative solutions exist /7//19/.

The requirements for the impact assessment in accordance with Article 6 of the Habitats Directive are outlined in the Administrative Order on Impact Assessment Offshore /12/.

Annex IV of the Habitats Directive includes strictly protected species, for which the establishment and implementation of a strict protection regime is required within the whole territory of Member States. The requirements for the assessment of the impact on strictly protected species in accord-ance with Article 12 of the Habitats Directive are outlined in section 8 of the Administrative Order on Impact Assessment Offshore /12/.

Birds Directive

The Birds Directive /20/ aims to conserve all wild birds in the EU by setting out rules for their protection, management and control. EU Member States must take actions to maintain or restore populations of endangered species to a level that is in line with ecological, scientific and cultural requirements, while taking into account economic and recreational needs.

The Birds Directive establishes a network of Special Protection Areas (SPAs) for those bird species covered by Annex 1 of the directive, including all the most suitable territories for these species.

Since 1994, all SPAs have been included in the Natura 2000 network.

Further, Annex 1 of the Birds Directive lists the bird species that should be subject to special conservation measures and may not be affected (either physically or through disturbance) by, inter alia, the construction or operation of an infrastructure project such as NSP2.

The Birds Directive is implemented in Danish law through, inter alia, the Act on the Continental Shelf and Certain Pipeline Installations in the Territorial Waters /7/ and the Administrative Order on Impact Assessment Offshore /12/.

Marine Strategy Framework Directive

The Marine Strategy Framework Directive /22/ (MSFD) aims to achieve “good environmental sta-tus” (“GES”) of EU marine waters by 2020 and to protect the resource base upon which marine-related economic and social activities depend. The MSFD takes the obligations of the EU and EU Member States under UNCLOS into account. When applying or interpreting the MSFD, UNCLOS must thus be considered.

Originally, the EU Commission has issued a set of detailed criteria and indicators in 2010 to help Member States implement the MSFD /23/. These criteria and indicators were repealed in 2017, when the EU Commission issued revised criteria and methodological standards on GES of marine waters, as well as specifications and standardised methods for monitoring and assessment /24/.

The MSFD is implemented in Danish law through the Marine Strategy Act (lov om havstrategi) /25/.

The Marine Strategy Act provides the overall framework for the strategies that should be prepared under the Directive in order to ensure that GES is achieved or maintained in Danish waters. Under the Act, the Minister for Environment and Food has authority to develop and implement the indi-vidual parts of the marine strategies.

In accordance with the MSFD and the Marine Strategy Act, in 2012 the Danish authorities prepared an overall marine strategy for Danish waters for 2012-2018, including the Baltic Sea and the waters around Bornholm (the “Danish Marine Strategy”). The Danish Marine Strategy applies to all Danish waters, including the seabed and the subsoil, in the TW and EEZ. However, the Danish Marine Strategy does not apply to Danish waters one nautical mile from the baseline, to the extent such waters are covered by the Water Planning Act (lov om vandplanlægning) /31/ and measures under an adopted Natura 2000 pursuant to the Environmental Objectives Act (miljømålsloven) /30/. The first part of the draft second volume of the Danish Marine Strategy, which covers the years 2018-2024, was in public consultation from November 29, 2018 to February 21, 2019 /26/. After the consultation deadline, the Ministry of Environment and Food makes a decision on the first part of the Danish Marine Strategy vol. II, which thereby replaces the Danish Marine Strategy vol. I from 2012.

The Danish Marine Strategy involves an assessment of GES in Danish waters with a definition of GES at regional levels based on the 11 qualitative descriptors for determining GES in Annex 1 of the MSFD.

Further, the Danish Marine Strategy involves an integrated assessment and classification of the environmental status of Danish waters, based on the Baltic Marine Environment Protection Com-mission (also known as the Helsinki ComCom-mission or HELCOM) HOLAS assessment (see section 10).

The classification scheme for the environmental status used in the Danish Marine Strategy is either

“good” or “not-good” in accordance with the classifications in the MSFD. In order to achieve “GES”, both ecological and chemical statuses must be good /27/.

Following the Danish Marine Strategy, the Minister for the Environment and Food adopted a pro-gramme of measures for the Kattegat Sea in 2016, and six areas have been designated in the Kattegat /28/.

The Danish Marine Strategy vol. I was supplemented in 2017 with a programme of measures con-taining existing initiatives and 20 new initiatives to achieve the environmental targets for the Dan-ish marine environment. Of relevance to NSP2, one of the new initiatives is the appointment of an inter-ministerial working group that is charged with the task of examining whether there is a need to designate additional marine protected areas in the central Baltic Sea and the North Sea (in addition to those already designated in the Kattegat). If need be, the working group is to make recommendations for how such areas should be designated. The working group will base its work on sound analysis and involve stakeholders in its work before it comes with its recommendations.

The working group is expected to report its results in 2019. According to the draft Danish Marine Strategy vol. II (proposed environmental target 6.9), the need for additional protected areas or other initiatives in the Baltic Sea and the North Sea is assessed.

The MSFD in relation to NSP2 is addressed in section 10.

Water Framework Directive

The Water Framework Directive (WFD) has a number of objectives, such as preventing and reduc-ing pollution, promotreduc-ing sustainable water usage, environmental protection, improvreduc-ing aquatic eco-systems and mitigating the effects of floods and droughts /29/. The WFD sets out clear deadlines for each of the requirements under the Directive up to 2027, including achieving the environmental objectives of good ecological status and good chemical status of surface waters, including coastal waters, as defined by the baseline plus one nautical mile; the objective of good chemical status for territorial waters (12-nm area); as well as the objectives of good quantitative status and good chemical status for groundwater.

The WFD is implemented in Denmark by the Act on Environmental Objectives /30/ and the Act on Water Planning /31/.

The proposed NSP2 route will not cross the Danish TW, i.e. the routing is outside the 12-nm de-limitation. An assessment in relation to the WFD is undertaken in section 10.

Maritime Spatial Planning Directive

The Maritime Spatial Planning Directive creates a common framework for maritime spatial planning in Europe /32/. While each EU country will be free to plan its own maritime activities, local, regional and national planning in shared seas is made more compatible through a set of minimum common requirements.

In Denmark, the Maritime Spatial Planning Directive is implemented by the Act on Maritime Spatial Planning /33/.

In January 2017, the DMA began preparing a maritime spatial plan for Denmark. The work is expected to continue until March 2021, when the maritime spatial plan for Denmark enters into force. According to the DMA, a draft maritime spatial plan will be subject to a strategic environ-mental assessment and be submitted for public consultation for six months. There is currently no draft maritime spatial plan published. On this basis, no detailed consideration can be given to a maritime spatial plan for Denmark in this EIA. Furthermore, there are no rules in Danish planning law that establish a requirement for the bundling of infrastructure.