Nearly thirty years after implementation of European Council Directive 85/337 on the assessment of the effects of certain public and private projects on the environment (known as the Environmental Impact Assessment (EIA) Directive) the European Council and Parliament have adopted further revisions to strengthen the effectiveness of EIA in decision making on projects.
Directive 85/337/EC had been the subject of three amending directives and was codified in Directive 2011/92/EU in 2011. The recently adopted Directive 2014/52/EU makes amendments to the codified 2011 Directive and is required to be transposed by members states on or before 16 May 2017.
This article evaluates the likely changes to the EIA processes for the consenting of development projects within the UK. Developers of EIA projects that are not likely to be ready for submission until 2017 or later should take particular note of the following:
- The revised EIA Directive specifies the minimum requirements that EIA regimes in member states, including the UK, must meet by 16 May 2017. Any member state can impose more stringent requirements.
- The UK Government and the devolved administrations will carry out public consultations on the changes proposed to existing EIA provisions in England, Scotland, Wales and Northern Ireland. Developers, consultees, conservation groups and others will be able to make representations during the consultation processes in order to influence the content of the transposing regulations in each of the UK jurisdictions and the different consenting regimes.
- Developers who wish to use the existing EIA procedures should ensure that they have commenced the EIA process for their projects before 16 May 2017 by:
- submitting a request for a screening opinion; or
- submitting a request for a scoping opinion; or
- submitting an application for development consent accompanied by an environmental statement.
- The provisions of the revised EIA Directive will only apply to projects that enter the EIA process from 16 May 2017, unless member states introduce different arrangements.
Definitions and scope
The revised EIA Directive includes a definition of EIA. Whilst not introducing any new stages, the definition emphasises that EIA is a procedure intended to ensure that decision-makers have both full information with which to examine the environmental effects of a project and sufficient expertise to do so.
The documents in which developers present information on projects and their predicted environmental effects, currently called environmental statements (ESs) are to be re-named environmental impact assessment reports (EIA reports). The definition of EIA confirms that it is the role of the developer – and others – to provide information to enable the competent authority to undertake the examination of likely significant environmental effects.
Screening to determine whether projects listed in Annex II to the EIA Directive and exceeding thresholds/criteria determined by member states are likely to have significant effects and so require EIA is already mandatory. The European Commission was unsuccessful in seeking to introduce a requirement that the screening process should be undertaken for all Annex II projects, irrespective of size and location.
The revised EIA Directive:
- provides that member states may set thresholds or criteria to determine when projects need not undergo either a screening determination or an EIA, and/or thresholds or criteria to determine when projects shall in any case be made subject to an EIA without the need for a determination; and
- sets out in Annex III a detailed list of the information that a developer will be required to submit in support of any request for a screening determination.
Annex III is more detailed than the current screening request provisions in the UK. It specifies that consideration must be given to cumulation with "existing and/or approved projects". Within the UK current practice is to include within the identification and assessment of likely significant cumulative effects projects at scoping stage or not yet approved
Whilst it has been established for some time that mitigation measures can be taken into account in determining whether an Annex II development is likely to give rise to significant effects, this is now explicitly incorporated within the revised EIA Directive. If a decision-maker chooses to screen out of the EIA process development because of the proposed mitigation then the subsequent grant of any development consent will need to include provisions to secure the effective implementation of these mitigation measures.
The revised EIA Directive also provides that the screening determination must give reasons for the decision to require or not require EIA.
Currently, the scoping process through which a decision-maker can be asked to give an opinion on the content of an ES is discretionary. The scoping opinion is not binding on the decision-maker or developer. The European Commission had hoped that scoping opinions would be required in all cases.
Under the revised EIA Directive, where a scoping opinion is issued then the EIA report shall be 'based on' that opinion and include the information that may reasonably be required together with a reasoned conclusion on the significant effects of the project on the environment, taking into account current knowledge and methods of assessment. This considerably increases the influence of the scoping process. The consultations that will be undertaken prior to transposing the revised EIA Directive in the UK may seek feedback on the extent to which regulations or guidance should clarify the circumstances in which an EIA Report may not be based on all or part of a scoping opinion.
Environmental Impact Assessment Reports
The enhanced screening and scoping processes are intended to focus the use of the EIA process on developments that are likely to give rise to significant environmental effects and for the consideration to be of likely significant environmental effects rather than lesser effects. As the content of screening requests will be expanded so, too, will the information to be included in the new EIA Reports – to address climate change mitigation and adaptation, natural resources, population and human health matters, and disasters.
Specified measures to avoid, prevent, reduce and, if possible, off-set significant adverse effects on biodiversity should be included. Whilst consideration of alternatives will not be mandatory, where alternative designs, technology, location, size and scale have been considered then more information will be required than currently. Further information on the baseline scenario, including an outline of its likely evolution in the absence of the project, should also be considered.
The revised EIA Directive introduces a quality control mechanism, requiring that:
- EIA Reports be prepared by experts who are qualified and competent; and
- Decision-makers must ensure they have sufficient expertise to examine the EIA Report and satisfy themselves that the information provided by the Developer is complete and of high quality. This requirement, in particular, is likely to have resource implications.
It will be for member states to determine how to implement these requirements. Within the UK some professional institutes provide guidance on EIA methodologies. However, there are some topics for which no agreed methodologies exist. It will be a matter for the UK administrations transposing the Directive to consider how to consult on and take forward the revised requirements in this respect.
Other changes that will need to be transposed include monitoring of the effectiveness of mitigation measures for effects that are predicted to be significant and adverse. The UK will also be required to lay down rules on penalties applicable to infringements of the EIA provisions. Decision-makers will have a duty to consider whether an EIA Report is up-to-date before an application is determined. They will also be required to include within any consent a reasoned conclusion on the significant effects of the project on the environment, together with a description of the project and the proposed mitigation and monitoring measures. To encourage effective public engagement, as a minimum all relevant information must be made electronically available to members of the public.
The revised EIA Directive seeks to lighten unnecessary administrative burdens, make it easier to assess potential impacts and help maintain existing environmental safeguards. The changes reflect the growing awareness of ongoing environmental and socio-economic priorities and challenges, including the need to improve resource efficiency, take into account and mitigate for climate change, protect biodiversity and seek to prevent disasters. Its transposition in the UK will require some significant changes to the existing EIA process and the detail for much of this will be a matter for the transposing UK administrations – watch out for the consultations!