Assessing the mood for EIA directive reform
Implementation of the environmental impact assessment (EIA) Directive (85/337/EEC) across the EU has not been at all straightforward.
The European Commission has repeatedly brought proceedings against member states in order to ensure proper transposition of the Directive into national laws and proper implementation of its requirements.
Also, interpretation of the Directive has proved contentious. Typical problems in transposition have been inadequate screening procedures for Annex II projects, failure to cover all project categories, and poor public participation processes.
While it is likely that problems will continue, there are some hopeful signs that national governments have now, at least in most respects, implemented the EIA Directive as required. It is also fairly clear that the Directive is itself having a positive effect on environmental law across the EU.
A 2009 report by the commission on the application and effectiveness of the Directive found that:
“The objectives of the EIA Directive have generally been achieved. The principles of environmental assessment have been integrated into the national EIA systems.
"All member states have established comprehensive regulatory frameworks and implemented the EIA in a manner which is largely in line with the Directive’s requirements; in many cases, member states have built on the minimum requirements of the Directive and have gone beyond them.
"As a result, environmental considerations are taken into account in the decision making process, which has become more transparent.”
The case for change
Despite its positive findings, the 2009 report notes a number of continuing concerns with the Directive.
Of particular interest is that member states are still repeatedly exceeding the limits of their discretion when establishing EIA thresholds.
The commission suggests a simplification of the Annex III criteria and the creation of pan-European thresholds to limit future deficiencies.
There are still cases where cumulative impacts are not adequately taken into account.
In terms of the direct and indirect costs of the EIA regime, a report submitted to the commission in February 2008 highlighted a number of areas of potential concern.
These include delays resulting from a lack of timetables for stages of EIA; project size thresholds being set too low by national authorities leading to unnecessary EIAs; and authorities lacking the necessary skills and resources, leading to delays in the process.
Also, over-implementation of the Directive, or “gold-plating”, was seen as fairly common in many member states.
Quality control of EIAs is another potential problem. As the obligations in the Directive are essentially procedural, they can be satisfied by environmental documentation of widely differing quality.
To ensure environmental information is of a uniform and high quality the commission has put a number of potential solutions forward.
These include the accreditation of consultants undertaking EIA; the use of independent external review; and mandatory scoping.
Variations in the approach to whether alternatives must be considered are also viewed with unease by the commission, as are problems arising from “transboundary” EIA procedures.
The general lack of consideration of climate-change impacts in EIA is also highlighted as an issue that needs to be tackled.
The next step
It appears that momentum is developing for a general review of the Directive. In June 2010, the commission launched a public consultation covering a broad range of issues.
The Committee of the Regions, the EU body that seeks to involve regional and local authorities in the European decision-making process, issued an Opinion in April 2010 calling for a number of changes, including more formal links between the EIA Directive and the Habitats Directive (92/43/EEC), and a better methodology to determine climate-change impacts.
And, in November, the commission and the then Belgian presidency of the EU held a joint conference to discuss the EIA Directive’s future with member states (the papers and outcomes from the conference, including commissioner Janez Potonik’s address can be found here).
Expect further developments in 2011.
The Competition and Markets Authority (CMA) has published a new 'Green Claims Code' to ensure businesses are not misleading consumers about their environmental credentials.
In Elliott-Smith v Secretary of State for Business, Energy and Industrial Strategy, the claimant applied for judicial review of the legality of the defendants’ joint decision to create the UK Emissions Trading Scheme (UK ETS) as a substitute for UK participation in the EU Emissions Trading Scheme (EU ETS).
In R. (on the application of Hudson) v Windsor and Maidenhead RBC, the appellant appealed against a decision to uphold the local authority’s grant of planning permission for the construction of a holiday village at the Legoland Windsor Resort.
In R (on the application of National Farmers Union) v Secretary of State for the Environment, Food and Rural Affairs, the claimant applied for judicial review of the Secretary's direction to Natural England concerning badger culling.