Adam Boyden, from Nicholas Pearson Associates, examines the findings of the EU's last five year review on the Environmental Impact Assessment (EIA) Directive
With the EU due to present proposals for a new EIA Directive in September, it seems timely to look at the last review of the Directive. This involved a review commissioned from consultants by the European Commission (EC), and a report from the EC outlining the strengths and weaknesses of the Directive and the main areas where improvements were needed.
EIA legislation has since been consolidated by combining Directive 85/337/EEC and its three amendments into a single Directive 2011/92/EU. In the UK, the EIA regulations have been amended to consolidate amendments and take account of case law (the Baker and Mellor cases). IEMA also prepared a special report examining these and other issues arising from practice.
The EC report
The commission’s report confirmed their view that although the benefits of EIA cannot be expressed in monetary terms, they clearly outweigh the costs.
It identified two major benefits from EIA. First, that environmental considerations are taken into account as early as possible in the decision-making process. Second, that by involving the public the EIA procedure ensures transparency in decision-making and, as a consequence, social acceptance.
Notwithstanding the progress made over the last 20 years, the EC expressed ongoing concerns over improvements needed to ensure EIA is effectively implemented.
Screening
Problems were identified with member states’ inconsistent use of exclusive thresholds when screening out Annex II projects and in addressing cumulative effects. The EC called for the screening process to be simplified and clarified, through actions such as: detailing the Annex III selection criteria; establishing EU-wide exclusive thresholds; and considering a simplified assessment procedure for smaller projects.
IEMA’s report noted that the ineffective application of screening requirements is the most common area of legal challenge in UK EIA practice, and that we lack any accurate information on the number of screening decisions made each year.
Recent updates to EIA regulations require local authorities to:
- explain their screening opinions when asked;
- made changes in relation to changes and extensions to projects; and
- allow anyone to request a binding screening direction from the secretary of state.
Improvements to the consistency and quality of the EIA screening process would therefore appear to be needed by all parties involved in EIA.
Quality:
Environmental statements (ES):
The EC noted that quality control in EIA is crucial for its effectiveness, and should be ensured, for example, through:
- the accreditation of EIA consultants;
- independent external ES review;
- the use of issue- and project-specific guidelines;
- making the scoping process mandatory; and
- updating Annex IV (information required in an ES).
The consultants also suggested requiring an independent ES review to be published alongside the ES.
IEMA’s report also calls for the effective use of scoping to improve ES quality. It found that scoping reports are becoming too long and unfocused, and called for improvements from practitioners and for better engagement during scoping. IEMA’s new EIA Quality Mark accreditation scheme also aims to drive up the quality of EIA practice.
The benefits of scoping, as identified in the Department for Communities and Local Government’s “Evidence review of scoping” report, include shorter ESs and reduced delays in decision making.
Local authorities often request an independent ES review, and some require applicants to cover the costs. While mandatory scoping may be one option, it seems improvements to ES quality will mainly come from practice, with help from good guidance.
Alternatives:
The commission found that the assessment of alternatives is a difficult issue, as some member states require developers to consider specific alternatives, and some require only that the ES reports any alternatives considered.
IEMA’s report noted that ESs should be more transparent about the way EIA has influenced project design to avoid negative impacts through the consideration of alternatives.
The EC concluded that it may be necessary to make the assessment of alternatives a legal requirement, or to specify the range of alternatives that must be studied. Such changes could help make EIA more of an iterative design tool.
Monitoring:
The commission was concerned about the lack of provisions in the Directive relating to monitoring the significant environmental effects of the implementation of projects, and to EIAs’ duration of validity.
The report states these could be addressed by introducing new provisions and the consultants suggested a requirement for monitoring as in the SEA Directive.
Discussions at an IEMA EIA Quality Mark workshop confirmed that an additional requirement for an ES to report the monitoring activities proposed to manage the effects of development is a fairly popular idea with practitioners.
Public participation:
Some gaps are apparent in how member states allow the public early and effective opportunities to participate in environmental decision making. This could be addressed by requiring public and stakeholder consultation at EIA screening or scoping stages, and by establishing minimum timeframes for the public to respond.
Other Directives:
The commission concluded there is no case for merging the EIA and SEA Directives, with many member states wanting each process to remain distinct. However, improved guidance may be required where overlaps occur.
Examining the Integrated Pollution Prevention and Control Directive, the EC noted that it may be useful to harmonise the thresholds and criteria defining projects that fall under the directives and to streamlining information requirements.
The EC report states it is clear that the requirements of Art.6 of the Habitats Directive are not always considered fully in EIA. Biodiversity could be expressly reflected in the Directive, and a single assessment procedure for projects falling under both directives could be established.
EIA was also criticised for not expressly or adequately addressing climate change, cumulative effects or adaptation issues. The Commission noted that Annexes I and II could be updated to require specific project types to assess climate change impacts.
Overall, the commission concluded: “The momentum is there to step up the Directive’s minimum requirements and improve the Directive”.
We shall see whether the commission will follow this up with any proposals for real improvement, in the near future.
This article was written as a contribution to the EIA Quality Mark’s commitment to improving EIA practice.
Adam Boyden, MIEMA CEnv, is an associate at Nicholas Pearson Associates [email protected]
