The amended EIA directive - enshrining best practice?

26th September 2014


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Author

Christopher Hayes

Adams Hendry argues the revamped directive will not reinvent the wheel

The amended Environmental Impact Assessment (EIA) Directive (2014/52/EU) came into force on 15 May 2014.

Adams Hendry reflects on some of the amendments to the screening and scoping procedures and the introduction of EIA monitoring, and suggests they reflect existing best practice rather than a major step change in EIA practice.

Screening

Amendments to the screening process include the requirement for additional information to be submitted by the developer.

This additional information is set out in Article 4, Annex II.A and Annex III and in general consists of a description of the project, baseline, likely significant effects and relationship to the selection criteria set out in Annex III.

There have been media reports that the additional information requirements mean that promoters will effectively have to submit “mini EIAs” at the screening stage.

While the requirements of the amended directive go beyond the current regulations, there is clearly an argument that to demonstrate the likelihood of significant environment effects submitting the information specified in Annex II.A is advisable and best practice.

There are also advantages to considering the environmental implications of a project more thoroughly early in the process.

Early liaison with technical specialists could lead to design changes that avoid significant environmental effects, for example, limiting the need for costly mitigation. But in our experience this already happens more often than not.

Scoping opinion

The requirement for EIA reports to reflect scoping opinions, where they have been sought, seems a minor change, but does raise some interesting issues.

Development projects are often changed and refined during the EIA process.

Not all these changes will affect the scope of an EIA report, but there will be occasions where they prompt a reconsideration of the topics in the assessment or the EIA methodology.

In most cases, promoters already have the flexibility to decide to seek a new scoping opinion if things change, and this decision often comes down to practical matters such as time and cost constraints.

Under the amended directive, promoters and practitioners will have to consider carefully the timing of a formal scoping request; seeking an opinion too early could lead to multiple requests.

But again, arguably the practical effect of the change is limited, since to be of real value the content and timing of scoping requests requires careful consideration.

While it is generally accepted that there is clear benefit in seeking a scoping opinion - because it provides promoters and their advisers with confidence that their environmental report will cover the necessary issues and report the impacts correctly - will the amended directive actually discourage scoping?

Since the amended directive does not make scoping mandatory but does introduce a “binding” element, some promoters may choose to opt out of the process.

But this could be counterproductive, potentially increasing the likelihood that decision makers will have to seek further information and evidence in the determination period.

Monitoring

The amended directive introduces a requirement to ensure mitigation and compensation measures are implemented and that effects generated are monitored.

It is not clear how this provision will work in practice as it has been left to member states to sort out the details.

This requirement does raise questions about how often will monitoring be required to take place, what form of documentation will be required, how this information be reported to the relevant authority and what the consequences will be if the mitigation doesn’t meet the expectations of the EIA.

There are also the practical implications for the promoter/developer in undertaking monitoring and reporting. As well as their own costs, will they have to take on the cost the authority will incur when it has to review this information?

In its summary of the amended directive on its website, the European Commission explains that existing monitoring arrangements can be used to avoid duplication and unnecessary costs.

It could be argued that in England monitoring is already adequately covered by controls imposed by planning and consent mechanisms.

But in practice the imposition of conditions or the use of legal agreements is not consistent across local planning authorities or in the decisions made by other consenting authorities.

Furthermore, conditions and agreements may not always fully reflect the mitigation and compensation proposed in an Environmental Statement.

While the amended Directive will bring about changes in EIA practice when it is transposed into UK law, these changes mostly confirm what is already best practice.


This article was written as a contribution to the EIA Quality Mark’s commitment to improving EIA practice.


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