On 14 April 2014, the Council of Europe adopted a directive amending the EIA Directive 2011/92/EU with a view to strengthening the role of EIA (EIA Directive 2014/52/EU). It will of course be for the UK Parliament to see to the transposition of the Directive but a number of significant changes will be required.
In order to establish whether EIA is required, developers will need to submit a screening report: the new Article 4(4). Member states may set thresholds or criteria to determine when projects need not undergo such a determination or shall in any case be subject to a determination. A new Annex IIA to the Directive prescribes what information the developer is to submit in order for there to be a determination as to whether EIA is required. A description of the project is required to include a description of the physical characteristics of the project and, where relevant, of demolition works and a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected. A description of the aspects of the environment likely to be significantly affected is required. A description of any likely significant effects, to the extent of the information available on such effects, of the project resulting from the expected residues and emissions and waste and the use of natural resources, in particular soil, land, water and biodiversity, is required.
Article 3, which defines the effects which EIA shall identify, describe and assess is amended: EIA assessment shall now address the direct and indirect significant effects on a project on population and human health; biodiversity; land, soil, water, air and climate; material assets, cultural heritage and the landscape and the interaction between these factors. A new Article 3(2) provides that the effects on those factors shall include the expected effects deriving from the vulnerability of the project to risks of major accidents and/or disasters that are relevant to the project.
As to the EIA assessment itself, environmental statements are to be replaced by EIA reports. EIA reports are to include at least:
- A description of the project comprising information on the site, design, size and other relevant features of the project.
- A description of the likely significant effects of the project on the environment.
- A description of the features of the project and/or measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment.1
- A description of the reasonable alternatives studied by the developer, which are relevant to the project and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the project on the environment.
- A non-technical summary of the information above.
- Any additional information specified in Annex IV of the Directive relevant to the specific characteristics of a particular project or type of project and to the environmental features likely to be affected.
Annex IV sets out additional information that must be provided by the developer where EIA is required in relation to specific characteristics of a particular project or type of project and the environmental features likely to be affected.
A description of operational energy use is also required [Annex IV(1)(c)] and information as to the nature and amount of waste likely to be produced during construction and operation [Annex IV(1)(d)]. There must also be assessment of the cumulative effects with other existing and approved projects, taking into account any existing environmental problems relating to areas of particular environmental importance likely to be affected or the use of natural resources.
EIA reports must be prepared by “competent experts”, a term left to be defined by member states. It will be interesting to see how Parliament defines this key term. The recital to the Directive records that “experts involved in the preparation of environmental impact assessment reports should be qualified and competent. Sufficient expertise, in the relevant field of the project concerned, is required for the purpose of its examination by the competent authorities in order to ensure that the information provided by the developer is complete and of a high level of quality.”
Where the competent authority produces a scoping opinion (whether at the request of the developer or otherwise), a developer will have to use the response as the basis for their EIA report [new Article 5(1)]. That could substantially increase the significance of a scoping opinion, and the difficulties if such opinion is ill considered. Member states are empowered to require competent authorities to give a scoping opinion whether or not the developer requests that they do so.
Article 8(a) requires all design modifications, mitigation and monitoring proposals relating to significant adverse effects to be incorporated in a development consent (new Article 8a) and, importantly, requires Member States to ensure that developers comply with those obligations when the development goes forward [Article 8a(4)]. A new Article 10a requires states to lay down rules on penalties applicable to infringements of the national provisions adopted pursuant to the Directive, such penalties to be effective, proportionate and dissuasive.
States must also endeavour to coordinate EIA assessment with other assessments required by EC legislation such as assessments under the Habitats Directive and designate an authority for that purpose [new Article 2(3)]. The wording of this provision is relatively weak but developers and prospective objectors alike might welcome better coordination of the various processes.
Member states have three years to implement the new Directive i.e. until 16 May 2017.