This article considers the new EIA Directive 2014/52/EU which needs to be transposed in the UK by 2017, and some of its implications for the decommissioning of UKCS assets. Since a decommissioning programme will typically need to be developed up to three years before decommissioning activities take place (or five years in the case of installations derogating from the OSPAR Convention) the changes are likely to affect owners of offshore oil and gas installations seeking approval for decommissioning programmes.
Decommissioning activities and projects
The licensing of projects for the extraction of petroleum and natural gas for commercial purposes and pipelines for the transport of oil and gas has been subject to the EIA process for many years. Whilst some installations coming forward for decommissioning will have been subject to the EIA process during licensing, other will not.
The EIA Regulations that licence the construction of UKCS facilities do not explicitly provide that the process of seeking approval for the decommissioning plan is an activity to which the EIA Directive applies. To date, DECC has advised that applications under the Petroleum Act 1998 should be accompanied by ‘an environmental impact assessment’ before approval of a decommissioning programme can be given by the Secretary of State for Energy and Climate Change.
Decommissioning plans and EIA
Although the European Commission sought to explicitly include “demolition” in the definition of an EIA project during the progress of the draft Directive 01192/EU, the text adopted by the European Parliament does not change the definition of “project”. It does, however, specify that information on demolition phases and demolition works is required where projects are subject to EIA.
There is no doubt that a demolition project can require EIA where it meets the EIA Directive thresholds. The purposive approach to the interpretation of European directives suggests that decommissioning should be regarded as demolition. In other cases the ECJ has concluded that where multi-stage consents are required the EIA process may be required for stages that have not previously been assessed.
Marine licencing and EIA
The decommissioning process involves a number of distinct stages and activities, including wells abandonment, topsides removal and substructure removal. Some of these activities will require a marine licence from the Marine Management Organisation (MMO) under the Marine and Coastal Access Act 2009.
Under the Marine Works (Environmental Impact Assessment) Regulations 2007 (as amended) the MMO is prevented from granting a licence for a regulated EIA activity until the EIA process has been completed.
But the fact that some activities may be subject to the EIA process under another jurisdiction does not avoid the need for the whole project to be considered to determine whether the EIA process should be undertaken.
Environmental Impact Assessment Reports
The newly termed “environmental reports” (no longer environmental statements) will also need to report on resource efficiency and sustainability, biodiversity protection, climate change and consideration of the vulnerability of projects to major accidents and/or natural disasters, including flooding, sea level rise and earthquakes; all of which could be particularly relevant to offshore oil and gas decommissioning programmes.
The increasing focus on habitats and species is emphasised through the requirements for specified measures to avoid, prevent, reduce and, if possible, off-set significant adverse effects on the environment.
The increasing extent of economic development activity within the Marine environment is also reflected through recognition that EIA should take into account the technologies proposed to be used as part of the regulated activity, e.g. seismic surveys using active sonar.
Currently, only those alternatives considered by a developer are required to be outlined in an Environmental. Consideration of alternatives for decommissioning activities in the UKCS is not required save in respect of OSPAR Decision 98/3, which prohibits the dumping and leaving wholly or partly in place of offshore installations unless derogation can be granted to provide for the option of leaving jacket footings or concrete structures in specified circumstances. Such exceptions can only be granted if a comparative assessment and consultation shows that there are significant reasons why an alternative disposal option is preferable to complete removal.
Screening and Scoping
The screening process is strengthened to ensure that it is only those projects that are likely to have significant effects on the environment that are subject to EIA.
Other changes to be introduced include:
- a greater focus on the scoping process;
- a requirement that the experts involved in the preparation of an EIA report should be qualified and competent;
- the need for the decision-maker to ensure that it has sufficient expertise in the relevant area to undertake the examination required and to satisfy itself that the information provided by the Developer is complete and of a high level of quality.
- a requirement that mitigation and compensation measures are proposed and implemented
- a requirement that appropriate procedures are introduced for the monitoring of significant adverse effects on the environment resulting from the construction and operation of any project.
Directive 2014/52/EU will require changes to be made to the existing UK regulatory and policy approach to EIA. Changes to the scope of Environmental reports, consideration of alternatives, mitigation, compensation and monitoring will have implications for resourcing the preparation of decommissioning programmes for activities in the UKCS that are relevant now.
DECC’s Offshore Environment Unit will be concerned with implications across a range of regulatory regimes, so active engagement at both sector and project level can influence those aspects of the Directive’s transposition that lie within the discretion of the Government.