EIA in the US, the UK and Europe

21st January 2014

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Peter Allcock

Experts from Atkins compare the different environmental legislative landscapes of the US, the UK and the EU, and the effects on environmental impact assessments (EIAs)

EIA continues to be an important issue across the world, with increasing pressure on public and private entities to reduce consumption, cut waste and halt irreversible impacts on natural resources.

Time and again, governments look to regulate the actions of organisations and individuals with the hope of changing behaviour to fall in line with the guidance of the moment and achieve targets set upon them. The process by which this guidance takes shape varies, as do the outcomes of such regulations. However, one area in which there seems to have been progression in the US and the EU is in requiring EIA in main stream developments.

Comparing EIA regulation

On January 1, 1970, the US government signed into law the National Environmental Policy Act (NEPA) with the intention of establishing a national policy for the “protection, maintenance, and enhancement of the environment” with regard to federal projects.

Specifically, federal agencies were to implement consideration of the environment into their decision-making protocol by way of preparation of an environmental statement that assessed both the potential impacts of a proposed project and those of reasonable project alternatives. NEPA also established the range of topics for analysis, the agencies that were expected to provide feedback into the process and the body that would oversee this effort.

NEPA was, and continues to be, broad level guidance that affects only a subset of projects (generally those funded by federal agencies). As such, many states have taken to implementing more restrictive environmental regulations. For example, the state of California implemented the California Environmental Quality Act (CEQA). While retaining the general principles of NEPA, CEQA introduced a legal requirement for all public and private planning applications go through a screening process and established more detailed thresholds by which to determine impact significance.

CEQA also established the need for analysis of cumulative impacts which had been largely silent in NEPA practice. CEQA documents are to be a source of public information for potential developments, supplying interested parties with detailed data and technical analysis of environmental impacts.

CEQA further emphasises the need for public participation, setting forth a number of opportunities for direct public input into the EIA process, as well as mandatory circulation (or consultation) periods. It should be noted however, that this has frequently been criticised as a hindrance to development as the EIA can be grounds for legal challenge, resulting in the loss of substantial time and money in the courts.

Due to the pioneering manner in which it set out to protect the environment, NEPA has frequently been used as a foundation of environmental regulation by other governments. This is true of the EU, which introduced Directive 85/337/EEC (the EIA Directive) as the foundation of environmental protection in 1985. The Directive set out a formal mechanism by which the potential impacts of a development project were analysed and, not surprisingly, mirrored the elements and underlying desire for protection of the environment found in NEPA.

The 1985 Directive has since been amended to: increase the type of projects that require EIA; establish screening criteria and the type of information required in EIA; and to bring the analytical standards more in line with the EU., Many of these changes have been paralleled by amendments to NEPA in the US. While still similar to NEPA, one notable difference in EU and UK EIA legislation is that there does not exist a single agency to oversee the EIA process, as well as the multiple and varied directives.

Similar to the way in which the EIA Directive was initially based on NEPA, it appears that the most recent draft of the proposed revised EIA Directive is closing in on the example set by CEQA by trying to create more practical and informative EIA documents.

This is particularly true with regard to:

  • the range of projects that require screening;
  • the need for project scoping and consultation, as well as established timeframes;
  • the need to renew EIA requirements with ever-changing infrastructure, technology, and social pressures; and
  • the quality of data considered necessary in an EIA.

At its root, EIA is as much a public information process as it is one to identify and mitigate the potential environmental impacts of development. However, it is often difficult to measure in a meaningful way if legislation has been transformed in a manner that advances both ideals evenly.

Although the US may have been the leader in establishing environmental regulation, guidance documents and the agencies to enforce them in the 1970s, arguably, they may be falling behind other countries particularly in the EU.

Time will tell as to whether the draft amendments (and future updates to EU Directives) will continue to mirror US laws, such as NEPA or CEQA, or take a track of their own from which others can learn.

While the legislative process may forever be in flux, the continued endeavor for environmental protection and a reduced footprint from developments is sure to remain, and this will keep us in the EIA sector happily in demand.

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