Changes afoot for Environmental Impact Assessments

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Proposed changes to the Environmental Impact Assessment Directive received approval from the European Parliament in March 2014 (the EIA Directive 2014), with the stipulation from the EU Commission that they should take effect in member states by 2017 at the latest. While criticised by some commentators as an example of a further regulatory ‘creep’ into domestic planning law from Europe, the proposals nonetheless include numerous changes with key consequences for any party to development projects.

Submission of an environmental statement and undertaking of an environmental impact assessment (EIA) is an important part of the grant of planning permission by any local planning authority (LPA) – the overall aim being to ensure adverse environmental effects of major projects are prevented, reduced or offset. While LPAs previously had a general responsibility to consider environmental implications, only since the late 1980s has there been a formal requirement for EIAs prior to the grant of permission for certain projects.

EIAs are now always required for developments of particular types and capacity, such as waste water treatment plants, iron and steel works, railway lines and express roads, groundwater abstraction schemes, or pipelines for the transport of gas, oil or chemicals. In all other instances, the need for an EIA depends on whether the development is “likely to have significant effects on the environment by virtue of factors such as its nature, size or location”. Ultimately, there is an overriding obligation for an EIA where a development will have a significant impact, even if the likely effects will not necessarily be adverse. The developer must then prepare an environmental statement describing:

  • the development, including information on the site, size and design
  • the main likely effects of this on the environment, as evidenced via supporting data
  • measures envisaged to avoid, reduce or remediate significant adverse effects
  • key alternatives considered and the main reasons behind the choices made
  • other aspects of the development as ‘reasonably required’ to assess environmental impact.

The statement must be submitted along with representations made about the development’s environmental effects – be these comments from a body formally required to and invited to make representations or any other party. Developers must also fulfil certain publicity obligations, including ensuring publication of relevant information in local newspapers and that any determined EIA application is available for public inspection.

The extensive nature of these requirements on developers has been clarified under the EIA Directive 2014, which sees the introduction of a definition outlining the whole process comprising:

  • preparation of the EIA by the developer
  • consultation with relevant authorities, the public and other member states (when appropriate)
  • examination of the EIA by the local planning authority
  • the making of a decision on the project’s significant impacts on the environment
  • integration of this decision into that of whether development consent is granted or refused.

A number of other key changes have also been introduced:

  • Introduction of a ‘one-stop shop’ so that all consents derived from EU law must be decided by the same authority at the same time
  • Extension and alteration of the list of what effects are to be assessed in any EIA to include biodiversity, climate change, human health, and resource efficiency. Descriptions will also be required of operational energy use and the waste (including types and quantities) likely to be produced during construction and operation.
  • The need for applicants to assess a range of alternatives within the EIA if they have been considered at any stage, including alternative designs, locations, technologies, development scales and any ‘do nothing’ consideration
  • Addition of a more prescriptive list of information to be provided in the screening process – that is, where a developer has asked the LPA for its opinion as to whether an EIA is required. Information will now be required covering design measures and mitigation proposals. Alongside this, it appears a time limit of three months for the issuing of a screening decision will be introduced, with the setting of clearer selection criteria for screening thresholds
  • Where a developer seeks scoping guidance from the relevant LPA or Secretary of State regarding the extent of the environmental statement expected, the resultant EIA report will have to be based on the response received
  • Requirement for either the project promoter or the decision-maker to employ ‘competent experts’ to produce or verify the environmental statement respectively
  • Requirement for at least 30 days to be allowed for public consultation on an environmental statement, with the period of 60 days also applying as a possible long-stop
  • Introduction of a proactive approach to ensure mitigation, prevention, reduction and offsetting measures outlined in an EIA are actually implemented in practice, and significant adverse effects on the environment are monitored after development. To this end, EIA reports will need to clearly define monitoring arrangements to be implemented
  • An obligation on member states to introduce penalties in instances of non-compliance.

The changes undoubtedly go a long way to strengthen existing legislation and ensure consistency between member states. The transitional rules also mean any project scoped before the end of the three-year transitional period remains to be assessed under the existing legislation. However, for developers, the new requirements are likely to engender even further costs and potential delays to projects due to the EIA process resultantly becoming ever-more demanding. While scoping will not become mandatory (as initially proposed), the changes relating to scoping opinions raise concerns regarding the timing of a submission. For instance, if a formal submission is made too early, there is the risk of the scope being extended beyond that ‘reasonably required’ – be it because the response issued reflects a risk-averse approach or has just been poorly considered.

The Government has recently streamlined its online guidance on a range of environmental topics relevant to planning, including EIAs. This operates alongside the extensive documentation, reports and guidance issued by the European Commission. Nonetheless, the area can still present something of a minefield for the uninitiated. Developers, competent authorities and practitioners will need to be acutely aware of the future requirements, particularly considering the high level of legal challenge that exists in this area.