Arrested development in EIA?

18th June 2012


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Paul Suff reports on a discussion about the future of environmental impact assessment

Since its introduction in the late 1980s, more than 10,000 development projects in the UK have been subject to an environmental impact assessment (EIA), a systematic way of ensuring a project’s significant environmental implications are considered before it goes ahead. UK policymakers had initially expected “a couple of dozen” assessments a year, but now there are more than 500 annually.

Over the next decade much-needed infrastructure in the UK, including new power-generation plants, will be designed and constructed. Many of these projects will be controversial and EIA will be at the centre of the development process.

In May, the environmentalist and IEMA brought six experts together to discuss the role of environmental impact assessment and whether the existing EIA Directive (85/337/EEC) – and subsequent amendments, which were recently consolidated into a “new” Directive (2011/92/EU) – and its legal interpretation in the UK act as a barrier or an enabler for development.

Iterative process

Josh Fothergill, EIA policy lead at IEMA, chair, begins the session by asking for panellists’ views on current EIA practice. All agree that, while EIA in the UK retains its original remit to produce information to aid planning decisions and prevent damaging development, the process has evolved over the past quarter of a century, and not always in a way that has delivered improvement.

There is complete unanimity that EIA is a force for good. “EIA has, and always will be, a barrier to bad development,” asserts, Ross Marshall, head of the National Environment Assessment Service (NEAS) at the Environment Agency.

Stephen Tromans, a legal expert on impact assessment and regular contributor to the environmentalist, says:

“EIA is obviously not fulfilling its function if there is bad development, but I think it is increasingly being used to make development better,” he says.

Such an outcome is partly because developers are now far more receptive to incorporating the outcomes of the EIA process into project design. “It used to be the case that a developer would come up with a scheme, and want it assessed and an environmental statement produced simply to get it through the planning process,” comments Tromans.

“Now the approach is much more iterative, and there’s an acknowledgment that the scheme may evolve during the environmental assessment and could end up being very different to what was initially envisaged.”

Cara Davidson, from the environmental assessment team in the Scottish government’s directorate for local government and communities, also believes that EIA’s evolution into an iterative process, producing a comprehensive assessment of environmental impacts, means it increasingly plays a positive role.

Rob White, partner at Manchester-based NJL Consulting, has experienced the evolution of EIA, so that it is now increasingly used to refine the designs for developments. “Pre-1999, you’d just be given a project to EIA. These days there’s a greater appreciation that EIA can really enhance the project – reduce its impacts and improve how it will operate in the future.”

He says developers now know they cannot just walk in with a final design. “Increasingly, they see the value of EIA,” comments White. “Obviously they have an initial design but they are much more open to feeding back the outcomes of EIA into the design.”

“I’ve experienced a similar shift and it’s something we try to encourage our clients to consider,” explains Philip Rowell, a director at Adams Hendry, a consultancy based in Winchester. “It’s the iterative process that goes from identifying a potential issue to addressing it that is the real value of EIA,” he asserts.

Bigger and better?

One major change in EIA practice over the past two decades or so, which is causing some concern among practitioners and could hamper future infrastructure development, is the growth in the size of environmental statements (ESs).

“They’ve become bigger and more comprehensive,” says Tromans. “And, as a result, I wonder if they are now less useful.”

White says that last year he saw an ES for a relatively small wind farm that was 400 pages long. “I haven’t got time to read a statement that long and planners won’t either,” he concedes. “I think the more you put in an ES, the more there is to pick over, which raises the risk of a legal challenge.”

The size of many ESs raises questions about how accessible the information is to the reader, and puts at risk one of the main aims of EIA – to help decision-makers reach an informed decision.

Rowell agrees that lengthy statements can potentially damage the planning process. “Decision-makers will often, understandably, admit that it is difficult for them to read all the material in any detail to meet the timescale for making a decision.

“Often you get asked by a decision-maker for clarification on X, Y and Z. But really what they’re asking for is help with finding the answers in the document already produced.”

White agrees and says this can slow down the process. “You wait and wait for a response, and then get a last-minute one with lots of questions from someone who, quite patently, hasn’t read the document.”

Marshall is not surprised to hear that some decision-makers are struggling to understand complex environmental interactions, as he believes this is increasingly a challenge for environment professionals, particularly when they are faced with assessing large, complicated projects.

“If the people who are doing this every day are struggling, heaven help Joe Bloggs, the solitary planner left in a local authority planning department who gets an EIA once every three or four years,” he says.

“Yes, they can argue that they’re short of resources but that doesn’t help you when you’re trying to get consent,” adds White. “Delay is the biggest cost for a developer.”

Tromans believes the answer is to produce a simple document explaining what the development is and listing the “pluses” and “minuses”.

“Although we need to retain all that good technical information, it needs to be distilled down in some way to make it more accessible,” he explains. “At the moment, even non-technical summaries are too technical!”

Davidson would like to see better signposting in documents. “Accessibility is about reducing the length of statements, but we should also make them easy to navigate.”

There is an acknowledgment among the panellists that improving accessibility should not be confined to decision-makers alone, but should make the information penetrable for all stakeholders, including local communities.

As David Hinde, senior environment adviser at the Highways Agency, points out, the government’s localism agenda could alter who makes planning decisions, as local communities are given more power to agree or reject developments.

“Will they sufficiently understand EIA?” he asks. “It’s not clear if they are going to receive any support from people who do understand its role.”

Davidson agrees the user-friendliness of environmental statements is a challenge, particularly as the audience for these documents gets broader.

“We need to ensure the statement does the job of informing not only the decision-makers but the public as well. How you manage that is a key challenge for EIA going forward,” she acknowledges.

Marshall, however, fears that many stakeholders will pay only lip service to an environmental statement.

The head of NEAS explains that, while working in the power sector, he did some research to see how many people were reading the statements his company was preparing for wind farm projects in Scotland.

“It was before widespread use of the internet and the largest number I could find for one project was six,” he recalls. “Yet that wind farm attracted letters of objection from 300 people, all claiming to have read the ES. So do people actually read them or do they go on their innate view and oppose a development simply because they don’t like wind farms?”

The panel also notes that the scope of EIA is slowly expanding, which is not assisting in producing “slimmer” environmental statements.

“EIA has increasingly become a ‘coat hanger’ upon which to hang other regulatory and society issues,” warns Marshall. “So, rather than having a separate climate change assessment, we’ve brought that into the EIA process, as well as compliance with the Habitat Directive and the Water Framework Directive. And, if I wasn’t here today, I’d be in Birmingham discussing how we bring ecosystems services into EIA.

“It’s become a ‘catchall’ for other contentious issues. Too often now, I have to remind people that EIA is principally concerned with providing decision-makers with accessible information on the significant effects of a development. That’s the bedrock of EIA and we must be careful about expanding that remit.”

Legal confusion

Some projects, particularly large ones, often trigger more than one set of EIA regulations and, therefore, several consenting bodies and practitioners would like to see more harmonisation.

“There is too much inconsistency,” says Hinde. “Although the Town and Country Planning [EIA] Regulations have recently been updated, other legislation hasn’t. It all feels rather bitty. And that doesn’t help the quality of EIA.”

“That’s a very good point,” acknowledges Rowell. “There are projects covered by two or more sets of regulations, all subtly different, that are being considered by different decision-makers. Which one do you follow? It would be much better to have a single set of EIA-related regulations.”

Rowell uses the example of the marine environment, where there is both the Marine Management Organisation (MMO) and the local planning authority (LPA), to illustrate the overlap. “While the LPA is concerned with the Town and Country Planning Regulations, the MMO is looking at the Marine Works Regulations,” he says.

“Certainly in the transport sector EIA regulations haven’t been updated,” says Hinde. “On more than one occasion we’ve had to go Department for Transport lawyers to ask for clarity.

“Interestingly, they respond by advising that you should be following the regulations because they transpose the Directive. However, case law has highlighted the fact that some regulations are now dated. So, is it the Directive we should fall back on?”

Legal expert Tromans advises: “The courts would probably say that if there is no argument about the Directive being transposed correctly you should look at the domestic regulations. However, where it is argued that there has been incorrect transposition, you should go back to the Directive.”

“We often go back to what the Directive says to avoid any confusion,” says Rowell.

Marshall explains that NEAS operates an internal screening role for Environment Agency projects to determine which EIA regulations apply. “Like the overlap between the MMO and the LPA, we often have to balance the demands of the Land Drainage [EIA] Regulations, which are a very strange interpretation of environmental impact assessment, and those of the Town and Country Planning [EIA] Regulations.”

Davidson says the Scottish government recently consolidated, updated and replaced the EIA regulations that apply to planning applications in Scotland, with the aim of clarifying the legislation.

The 2011 changes to the EIA Regulations across the UK included importing carbon capture and storage projects and a requirement to set out the negative reasons for determining screening – in England, also the right for members of the public to ask for a screening determination. Schedule II was also revised with regard to changes and extensions to developments.

While welcoming the consolidation of the main EIA Regulations, following numerous amendments since 1999, some of the new requirements present a challenge for EIA practitioners and project developers.

“I’m grappling at the moment with changes and extensions,” admits White. “We’ve recently been given the details of phase six of a development that wasn’t in the original application. An environmental impact assessment had been completed on phases one to five. Now, is phase six an extension or a new development? And do we have to re-EIA the whole development?” he asks.

“That’s going to be a really big issue,” agrees Tromans. “It’s got the potential to affect so many different types of development. It’s definitely going to give rise to more angst!”

Future challenges

The publication of the national planning policy framework (NPPF) for England, with its presumption in favour of sustainable development, might significantly impact EIA in the future, according to some panellists.

“I’m struggling to understand how the existing EIA process is giving decision-makers the right information about how a project will contribute to sustainable development,” argues Hinde.

Marshall foresees potential conflict between the pursuit of development to aid economic growth on the one hand, and addressing environmental concerns on the other. “There is a very strong drive for growth at the moment and the EIA process has to support that. If it is seen as a barrier, people will start asking whether it is needed,” he warns.

“Similarly, if people perceive environmental degradation as a result of growth they will ask questions. There’s a fine balance here for decision-making bodies and consultees to tread.”

White cautions against EIA practitioners acting as judges. “It’s not the role of environmental impact assessment to judge whether a project is or is not sustainable. I think it would be very dangerous if the concluding chapter of the ES includes this kind of judgment,” he warns.

“We may think a development will have adverse impacts, but it’s up to the decision-makers to judge whether it is good or bad.” He also believes it would be a backward step for EIA practice.

“It took time to educate clients that just because some ES chapters concluded with adverse effects didn’t mean that they wouldn’t get planning consent. Developers now accept that EIA needs to cover adverse as well as positive impacts.”

“I think there is always a tendency to focus on the significant adverse effects, but the Directive talks about significant effects, not just the adverse ones,” explains Rowell, “so there is nothing wrong with the environmental statement stating both. We’re talking about development, so you’re never going to have a completely positive assessment.”

“I get the feeling that too many stakeholders use the ES simply to pick up on the negative aspects,” Marshall says. “And they use the ES as a stick to beat the developer.”

“EIA isn’t a barrier to development if it is done rightly,” asserts Hinde. “It should prevent bad development, but what’s ‘bad’ to me might be regarded as ‘good’ by someone very interested in the economic growth agenda.”

10 more years

So, after a quarter of a century of environmental impact assessment practice in the UK and with a draft of the revised EIA Directive due in September, what changes would practitioners like to see over the next 10 years?

Davidson is less concerned with further changes in procedures, favouring instead a culture change among practitioners so environmental statements are more accessible.

Marshall agrees. “It’s not the regulatory process but the culture in which EIA takes place that needs to alter. Hopefully it will increasingly be used as a design tool as well as a mechanism for regulatory assessment and appraisal.

"So, we’re at the point where development should be designed around the environment rather than environmental aspects being retrofitted to a development.”

Roundtable participants

Cara Davidson is policy lead in the environmental assessment team which is part of the Scottish government’s directorate for local government and communities
David Hinde is senior environment adviser at the Highways Agency, where he is responsible for the agency’s design manual for roads and bridges, which includes impact assessment
Dr Ross Marshall, head of the national environmental assessment service, is responsible for the management of environmental risk, and its compliance and planning
Philip Rowell is a director at Adams Hendry Consulting, a Winchester-based company of chartered town planners and environment specialists
Stephen Tromans QC is a legal expert on environmental impact assessment. A second edition of his book Environmental impact assessment was published in February
Rob White is partner at NJL Consulting, where he leads the sustainability team. He has a wide range of experience of all the technical phases of the development process
The roundtable was chaired by Josh Fothergill, IEMA’s policy and practice lead on environmental impact assessment, a long-standing action area for the Institute

the environmentalist would like to thank everyone who took part. For further information on the points raised during the discussion, see IEMA’s special report, The state of environmental impact assessment in the UK, which was published in 2011.


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