New Environmental Impact Assessment Directive comes into force

Angus Walker picture-13This entry analyses the new environmental impact assessment directive.

Background

The idea of requiring decision-makers to take the environmental impacts of projects into account has existed for a while. The first European Union directive dealing with so-called environmental impact assessment (EIA) came into force in 1985.

The main requirement was that the developers of projects above certain size thresholds had to produce a statement of the predicted effects of their projects on the environment and how they would be mitigated (the environmental statement, or ES).

That directive has been amended three times:

  • In 1997 it was amended to take into account the Espoo convention on assessing transboundary effects;
  • In 2003 it was amended to take into account the Aarhus convention on public participation in environmental decision-making;
  • In 2009 it was amended to add carbon capture and storage to projects that must or should be assessed.

Those were stand-alone directives, though, and the whole lot was consolidated into a new directive in 2011. That coincided with the 25th anniversary of the original directive coming into force and the EU decided to conduct a review of it.

After some toing and froing the new EIA Directive finally came into force on 15 May 2014 as directive 2014/52/EU. It can be found here.

There's no need to get too excited about it yet, because member states have three years to implement it in their own countries, i.e. by 16 May 2017. Nevertheless it is useful to be aware of what is coming up.

The new directive

The EU guidance lists seven things that the new directive does differently:

  • Simplification: EIA procedures must be simplified by member states;
  • Timeframes: these are introduced for some stages e.g. screening decisions;
  • Screening: asking whether EIA is required is simplified;
  • Reports: environmental statements are renamed EIA reports and must be made more understandable;
  • Quality and content: EIA reports are to be improved and conflicts of interest avoided;
  • Decisions: application decisions must be clear and transparent and timeframes may be introduced (i.e. optionally);
  • Monitoring: projects with significant effects on the environment must be monitored

The new directive is actually rather hard to follow, because it is set out as a series of amendments to the 2011 directive. They also have a habit of replacing a whole paragraph when only a couple of words have changed. Never fear, though, because I have created a tracked-change version of the 2011 directive so that all the amendments can be seen clearly. If you would like a copy of this, pleaseThis email address is being protected from spambots. You need JavaScript enabled to view it..

Analysis

I proffer the following comments on reading through the changes to the directive.

For a start, 'environmental impact assessment' is actually defined, when perhaps surprisingly it wasn't before. It is now a process of:

  • Preparing an EIA report;
  • Consulting on it;
  • Examining the report and consultation responses;
  • Issuing a decision based on these;
  • Ensuring that mitigation etc. measures are implemented.

The exemption that was at article 1(4) where Acts of Parliament are exempt from EIA has been removed, although possible exemption from public consultation has been retained at article 2(5). This will have implications for organisations such as Network Rail, who rely on 19th century railway acts to upgrade their network.

Article 2(3) requires governments to consider integrating EIA and other environmental directives (especially habitats and birds) into a single assessment process.

For Annex II projects (i.e. those that only require EIA if significant effects on the environment are likely), governments can set out criteria in advance that will exempt projects without them having to seek screening opinions, a bit like permitted development.

When it comes to EIA Reports, the wording about alternatives has been tweaked. It now says

'a description of the reasonable alternatives studied by the developer, which are relevant to the project and its specific characteristics', instead of 'an outline of the main alternatives studied by the developer'.

I'm sure that will cause a lot of debate as to what the changes mean, which is my way of saying I don't quite know what they mean.

EIA Reports must be prepared by 'competent experts', but the original proposal of a register of such experts has been dropped.

Providing information electronically is now mandatory instead of just when 'appropriate'.

Public consultation on EIA Reports must be at least 30 days (this will probably mean tweaking the minimum length of 28 days for representation periods for Planning Act 2008 projects).

There is a new article 8a on what decisions on applications requiring EIA should contain. Probably the most important change is article 8a(4), requiring governments to ensure that mitigation etc. measures are actually implemented and that monitoring is carried out. That extends the life of EIA beyond decision-making.

There are more duties on decision-makers to inform various bodies after making a decision.

There is a new article 9a about conflicts of interest, particuarly where the developer and decision-maker are the same - there should be a separation of functions.

Finally in terms of the main articles, there is a new article 10a about imposing penalties for breach of the directive, that should be 'effective, proportionate and dissuasive'.

Then there are the Annexes. The types of project listed at Annexes I and II are unchanged. The selection criteria for Annex II projects at Annex III have been changed, however, and a new Annex IIA has been added setting out what information developers should provide if seeking a screening opinion. The list of contents of an ES - now an EIAR - has been tweaked, and now includes, among other things:

  • Demolition, where relevant
  • More on the operational phase
  • More on the production of waste, a description of the baseline and what would happen to it if the project wasn't built
  • Vulnerability to accidents and disasters

All in all, EIA Reports are going to get bigger rather than smaller. 

That is a brief initial analysis, and you should read the detail if you want to know precisely what the changes are. Having said that, I don't see an obvious correspondence between the changes and some of the EU's list of main differences, e.g. making EIA Reports more understandable, but time will no doubt tell.