After conducting an extensive review of existing procedures, the European Commission has published a draft amending directive that points to significant changes to the EIA process.
Many of these changes appear likely to impose increased assessment burdens on promoters of energy projects, create conflicts with existing procedures and subtly change the nature of EIA from a procedural mechanism to one that imposes duties on competent authorities to influence the nature of the final consenting decision. There are inevitably concerns that the changes could increase the scope for legal challenges to the grant of planning consent.
Some of the more significant changes are summarised below.
- A mandatory screening process for Annex II projects will be introduced. At present developers do not always need to seek a screening opinion where the development clearly does not fall within the scope of Annex II and/or falls below the relevant thresholds.
- Whereas the system now assumes that the screening process will take place before an application for substantive consent is made, the draft directive provides scope for screening to take place afterwards.
- The period for decision making on the screening opinion will be extended beyond the three weeks currently permitted to three months. The new schedules for deciding whether an EIA is necessary will also cut across the existing processes for deciding such consents as planning permissions and development consent orders.
- The decision on the mandatory screening opinion must also be accompanied by the adoption of a mandatory scoping opinion. Applications for scoping opinions, are currently optional.
- In determining a scoping opinion, the competent authority will be required to determine certain prescribed matters including identifying environmental features likely to be significantly affected, the nature of information and bodies to be consulted. However,the proposals introduce the requirement that the authority must determine the reasonable alternatives to the project to be assessed, rather than only those which the developer has identified.
- It is not clear from the draft directive where the limits of studies of alternatives lie. Should studies be limited simply to variants of the scheme proposed by the developer or is a wide ranging exercise that includes a “do nothing” scenario and the examination of different technologies, scales and locations required? The latter exercise would be hugely onerous. It is foreseeable that objectors will latch on to the duty to identify alternatives in an attempt to influence the decision making framework.
- Environmental statements will have to be prepared on behalf of a developer by accredited and competent experts and verified, on behalf of the competent authority, by such experts or a committee of national experts. The developer will also be prohibited from using the same experts that the authority has used in order to make a determination on the scoping opinion.
- The information for inclusion within the environmental statement will be expanded. Apart from the amending directive giving greater detail on what is required and interactions with other sources of impacts on the environment, there are notable additional topics on which information will be required, such as human health (an SEA but not EIA requirement at the moment) and climate change.
- The amending directive has added time frames for the EIA process: consultation must last not less than 30 days and not more than 60 days (or 90 days in cases of high complexity). These consultation periods significantly extend the minimum periods under the existing framework. There are also targets for completion of the EIA process within three months (or six months in special cases) and a requirement to verify that the environmental information is up to date before a consent is granted, in particular, in relation to mitigation and compensatory measures. Again these periods do not sit well with the existing structure of relevant consenting procedures.
- The draft directive appears to make a subtle change to the EIA mechanism by introducing the requirement that, if the EIA process points to significant adverse effects, the competent authority, “in close co-operation” with the prescribed consultees and the developer must consider whether both the environmental report and the project should be modified to reduce these adverse effects and whether additional compensatory or mitigation measures are necessary. Given the broad purpose and intent of EIA directives, we expect that objectors will apply pressure to competent authorities and their consultees to use this duty to secure significant changes to applications.
- Furthermore, where development consent is granted, the competent authority will be required to ensure that the development consent includes a measure to monitor the significant environmental effects in order to assess the implementation and the expected effectiveness of mitigation and compensation effects and identify any unforeseeable adverse effects. Such obligations will add major costs and the monitoring provisions may carry with them requirements to modify the project, or its manner of operation,if any adverse impacts are created.
- Greater precision and detail will be required in giving reasons for making decisions, which is also likely to create fertile ground for challenges.
We understand that the amending directive is proposed to come into effect in 2014. However, there is a sting in the tail for developers who are promoting projects before its introduction. The new requirements will apply to applications that have not been finally determined before the amending Directive takes effect. As a result, there is a retrospective threat to development and extra costs will inevitably be incurred in order to secure compliance.
Developers will therefore need to take early account of the proposed changes when preparing to make major applications as the changes will influence both the content of environmental statements and the EIA process. We are also not aware of any direct consultation by the government on the proposed changes, but, given the potential impacts and uncertainties, there seems to be a clear case to make urgent representations.