The Scottish Government is consulting on transposing new European regulations on environmental impact assessment (EIA) into law.
The EIA Directive was amended in 2014 to place greater emphasis on challenges that have emerged since the original rules came into force around 25 years ago, such as resource efficiency, climate change, human health and disaster prevention. There are also new requirements on monitoring and enforcement.
The UK must go ahead with transposing the directive despite its vote to leave the EU, since the May 2017 deadline will be well in advance of any Brexit deal being finalised.
The consultation document states: ‘Following the EU referendum, the Scottish Government is committed to explore all options to secure Scotland’s interests and protect its relationship with the EU. The UK, and therefore Scotland, continues to be a member of the EU and as such is statutorily obligated to transpose the directive into Scottish legislation.’
Kate Bellew, senior conservation manager at the RSPB Scotland welcomed the fact that the Scottish Government has published the consultation despite the uncertainties raised by the referendum result.
‘We are pleased that the Scottish Government recognise the importance of the EIA in protecting Scotland’s environment and that they are therefore progressing with transposition of the updated EIA Directive. This consultation is a positive step and we look forward to working with the Scottish Government to improve the quality and transparency of decision-making,’ she said.
The communities department (DCLG) was also expected to consult this summer on transposing the amended directive in England and Wales. A spokesperson for the DCLG said: ‘We will announce the consultation in due course.’
Josh Fothergill, policy and practice lead at IEMA, said that the Scottish Government’s proposals largely mirrored those in the amended directive. One area where its proposals to go further is a new regulation requiring public bodies to share data that may help inform the EIA.
Under the proposals, there would be a formal engagement process between the developer, local planning authority and statutory consultees on the data public bodies hold that may be relevant to the EIA.
‘It’s effectively enabling the mining of public data and facilitating that in a regulatory process,’ Fothergill said.
There is wording in current EIA regulations that encourages this but is not often used in practice, he said. The new approach ties in with the Scottish Government’s efforts to make EIA as efficient and effective as it can be, he explained.
On monitoring, the Scottish Government states that ‘significant adverse effects on the environment’ should be monitored. Currently, monitoring is requested through planning conditions or under separate regulations such as those governing industrial emissions.
The amended directive introduces new obligations to monitor ‘significant adverse environmental effects’ of the project, which can apply to both the implementation and management of the project. The new monitoring requirement means that judgements on what is ‘significant’ are more important than previously, Fothergill said.
‘Practitioners are going to have to give greater thought to what they are calling “significant effects” and how they present that because of the monitoring requirements.
Other proposals in the consultation include:
- not to introduce a formal definition of a ‘competent expert’ through legislation. The directive introduces a requirement to employ 'accredited and technically competent experts' to produce and verify the EIA report. It has left the definition of ‘competent’ up to member states to decide.
- a coordinated approach to EIA and habitats regulations, where a single government body coordinates both assessments. The directive suggests an alternative option of two separate bodies undertaking this work.
IEMA is planning to hold workshops on the proposals in the consultation in early September.
