Background

A system of assessing the environmental effects of large projects before they were consented was first introduced via a European Union directive in 1985 - the Environmental Impact Assessment (EIA) Directive (85/337/EEC).

The regime applies to large projects of all types, not just nationally significant infrastructure projects, and so this blog entry is of more general application.

Before going any further, 'screening' is the part of the process where you can ask the body that will approve your application whether it thinks you are above the threshold that means you must undergo EIA.  'Scoping' is the part of the process where you can ask the body that will approve your application what areas should be assessed.

The EIA Directive has been amended three times:

  • by directive 97/11/EC, which implemented the UN Espoo Convention on EIA to require transboundary effects to be assessed, extended the projects covered, revised the 'screening' process and introduced minimum information requirements;
  • by directive 2003/35/EC (trivia note: directives from before 2000 have a two-digit year and those after have four digits, to maintain numerical order), which brought in the provisions of the Aarhus Convention on participation in environmental decision-making; and
  • by directive 2009/31/EC, which added carbon capture and storage projects to the list of those requiring EIA.

The whole lot was then consolidated into a new directive 2011/92/EU, which is the one currently in force, but appears to have been created just so that it can be amended more easily, given the review timings.

Review

The EU Commission decided that 25 years of operation was a suitable moment to review the whole process, and launched a consultation from June to September 2010, ending in a conference in Leuven, Belgium.

In December 2011, the Commission published a new draft directive, which it adopted (i.e. decided to seek to get passed) in October 2012. This proposes extensive changes to the 2011 directive, as follows:

  • including demolition as a type of project that can be subject to EIA (following a 2009 European Court case against Ireland);
  • reducing the ability of a state to avoid EIA for national defence purposes, to projects whose 'sole purpose' is national defence;
  • clarifying that the national legislative process can be used to avoid conventional EIA only if that process achieves the same effect (before, it was just assumed that it would);
  • introducing a one stop shop, so that all consents derived from EU law must be decided by the same authority at the same time;
  • extending the list of what effects are assessed to include biodiversity, climate change, disaster risks and the use of natural resources, but limiting this to 'significant' effects only;
  • changing the screening process by adding a more prescriptive list of information to be provided, introducing a time limit of three months and setting selection criteria for screening thresholds;
  • making scoping mandatory and setting out what the project promoter has to provide in more detail;
  • requiring either the project promoter or the decision-maker to employ 'accredited and technically competent experts' to produce or verify the environmental statement respectively;
  • requiring consultation on an environmental statement to be between 30 and 60 days;
  • requiring deadlines for consultation on transboundary effects to be introduced;
  • introducing much more detailed duties on the decision-making body as to how it has taken EIA into account in its decision, including on-going monitoring;
  • introducing more precise data requirements for member states to report to the EU on EIA projects; and
  • introducing the ability for the EU to vary the information requirements by delegated legislation (i.e. without requiring the whole directive amendment process).

The term 'environmental statement' is never mentioned in the current directive, but the new one calls it the 'environmental report', so I don't know if we will have to change our terminology in the UK. 'Environmental report' currently refers to the equivalent of an environmental statement for 'strategic environmental assessment' (i.e. the assessment of plans rather than projects).

As you can see, if adopted, the changes would require extensive amendments to the Planning Act and other regimes.  The Commission expects the directive to come into force in March 2014, once adopted by the EU Parliament and Council.  National legislation will then have a certain time to be amended to comply with the changes.

UK attitude

In December 2012, the Department for Communities and Local Government issued an 'explanatory memorandum ' on the proposed new directive.  This isn't a neutral document like the one that accompanies a Development Consent Order, however, but an analysis of whether the UK likes the proposals.  To sum up: 'we must also recognise that the European Union is engaged in significant regulatory creep and the domestic planning regime is increasingly subservient to European Union law.'  I get a feeling of frustrated impotence with the process.

For example, the UK is unhappy with the way the Commission has made the proposal: 'unusually for the Commission they did not share drafts of their proposal with Member States prior to adoption.'  Also, as you can imagine, the government doesn't like the last of the bullet points above.  The appointment of independent experts might add to the cost of projects, it says, although I suspect many professionals working in this area might quite like that provision.

I must agree that the changes above don't seem to fit in with the first of the Commission's own intentions for the new directive: "The proposal is intended to lighten unnecessary administrative burdens and make it easier to assess potential impacts, without weakening existing environmental safeguards."  However, the current EIA process could certainly do with making it 'easier to assess potential impacts'.

We shall see how effective the government is in getting some of the additional burdens watered down, but whatever they acheive there are likely to be extensive changes to EIA in the next couple of years.