Josh Fothergill, FIEMA, CEnv, explores some strategic questions we should all ask of the UK government’s Environmental Outcomes Reports consultation, which are not immediately apparent from reading the consultation itself.
Last Friday, the Department for Levelling Up, Housing and Communities (DLUHC) published their long-awaited proposals to replace Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA). This is the first time the government has openly engaged on their proposal for Environmental Outcomes Reporting (EOR), although the bare bones of the approach has been available for some time within the government’s Levelling Up and Regeneration Bill (LURB), introduced to the House in early May 2022.
So what is the point of a blog on how to engage with this consultation? Surely, it is simply a case of:
- here’s the weblink
- review the 26 consultation questions
- reference specific LURB Clauses / Consultation Paragraph Numbers in your response,
- DLUHC would prefer you to use the online Citizen Space rather than written responses, and
- do not miss the 9 June deadline!
Job done, easiest and the most admin-oriented blog I have ever written…
But there is far more than meets the eye to this consultation and a lot at stake. The stakes are not whether EIA and SEA survive in England, although that is a consequence and an issue you may wish to consider in your response to the consultation. The real stakes are whether the proposals for EOR do actually offer significant improvements to environmental assessment and consequential support of ‘environmental outcomes’, or whether they carry a not insignificant risk of generating chaos, which could in fact delay much needed infrastructure towards net zero and cause unintended harm to the environment.
The government promised a white paper on the future of environmental assessment in their August 2020 Planning White Paper. Unfortunately, the latter was not well received and during the related fall out, the anticipated debate on the future of environmental assessment in the UK got parked and eventually shelved. Instead, we were somewhat surprised by EOR proposals appearing in last May’s LURB with no one in or out of government able to determine quite what the concept was:
- A rebranding of EIA and SEA?
- A wholly new approach untested elsewhere, or
- Something other / in between?
Behind the scenes, since the summer of 2020 DLUHC has been approached by myself, by IEMA, and I am sure by many other environmental assessment professionals to offer to engage, provide advice, data, test concepts. Bar the odd very outline and vague documentation and on-going promises of engagement workshops and discussions ‘coming soon’ we find ourselves with 12 weeks to respond to an oven ready EOR proposal, rather than a debate.
I therefore want to use this blog to explore some strategic questions we should all ask of the EOR consultation, which are not immediately apparent from reading the consultation itself. The four questions below, and my related perspective on each, are intended to help frame your thinking when considering the development of the future EOR system. I hope they prove useful not just for environmental professionals, but also for developers, environmental organisations, planners, engineers and other interested parties as you scroll down the EOR consultation’s HTML pages.
1) Is the consultation overly optimistic about EOR success?
The consultation document sings the praises of what EOR will deliver, but this is by no means guaranteed. The challenges environmental outcome reporting seeks to address have little difference to what the existing EIA and SEA are already tasked to deliver. So, how are the government so confident their untested and still to be fully conceived EOR approach will so profoundly outperform its well-established stable mates?
An example: The consultation claims inevitable success of improving the consideration of reasonable alternatives by plan-makers and project proponents. This is a laudable aim. It is also clear that further clarification on plan-level environmental assessment reasonable alternatives would certainly help de-risk legal challenge opportunities that exist as a result of the limited wording of the SEA Regulations. When we look to the project level, however, establishing a EOR system that makes a developer consider reasonable alternatives early and effectively sounds good on paper, but is far harder to achieve in practice. To do this would mean fundamentally changing the open approach to making a planning application. Unless the future regulations will direct council planning officers to reject any EOR application that has not already given due early and effective consideration to reasonable alternatives – akin to the NSIP pre-application test – then the proposed expectation on developers is likely to be no more effective than the current well established EIA approach.
2) Has sufficient quality evidence been gathered?
Linked with the above is an amazingly thin veneer of questionable ‘evidence’ upon which both the government’s hopes for the success of future EOR performance and criticism of the familiar EIA & SEA systems rely. Perhaps as a result of a lack of interest in engaging with the efforts from IEMA, and others, to provide advice on existing challenges and benefits of the current approaches, the consultation lacks credible evidence to back up its critique of the systems it seeks to replace. Whether EIA and SEA has succeeded, or failed, in the UK over the past 35 years is somewhat beside the point here (although I would tend toward the mass of academic research that indicates EIA is a positive influence, with SEA having in most instances covered itself in less out and out glory). The issue we need to consider is, if you have not gathered evidence of what you see as the failings within the existing system, how do you know you have understood the causes and thus developed the right solutions in your proposals for EOR?
An example: The EOR consultation proposes enhancing monitoring against outcomes, for mitigation success and to enhance baseline, amongst other things. This is an area that the EIA and SEA Regulations strengthened in 2017, but still does need further development to reach across into the consent and enforcement process – beyond environmental assessment – to ensure delivery. The consultation document, however, laments the failings of SEA monitoring, which I would agree are often limited; but, it does not seem to ask the Why? behind this practice challenge. Is it simply the SEA Regulatory legal requirements on monitoring – yes they do exist – are ignored by public sector plan-makers who feel they don’t need to comply? Or could it be that often the key environmental challenges of a plan relate to allocated sites and thus monitoring consequences (effects / outcomes) is not really viable until those sites seek and gain consent, which can often take many years after the plan is adopted. In the interim the plan’s monitoring of outcomes / effects in relation to consequences from such sites is likely to remain limited whether EOR Regulations or SEA Regulations are the order of the day.
3) Will the threat of legal challenge actually be reduced?
The EOR consultation is correct that current environmental assessment regimes, EIA in particular has generated a volume of case law over its 35 years of practice. The question here again is Why? Is it because EIA and SEA are simply badly written legislation - perhaps due to their European origins? Or could it be that those wishing to see a development consent refused will seek to use the complexity of development-environment interactions as a useful route to challenge? The benefit of the EIA and SEA Regulations is that they have been through their ‘teenage kicks’ when it comes to legal challenges. The majority of case law on EIA and SEA is now settled, as noted by the highly respected planning lawyer Neil Collar at Scotland’s EIA conference in 2022, and in a subsequent blog post.
Both the LURB itself and the secondary regulations to implement EOR into every English consent regime will provide new areas for those who seek to challenge consents. I am pretty sure nobody intended to leave legal cracks in either the EIA or SEA Directives, or the implementing UK regulations, but we still lived through the development of EIA case law on: outline and reserve matters (eventually becoming subsequent consents), the need for the courts to develop the ‘Rochdale envelope’, and multiple other seminal cases. While the development of EOR can seek to avoid cracks in the legislation that can be pried open into legal challenges, no system is perfect. In fact, if put before a judge it would likely be found to be Wednesbury unreasonable to assume legislation implementing EOR would be unlikely to present opportunities for new legal challenges.
An Example: Clause 139(7)(d) of LURB provides the power to descope environmental outcomes were an adequate assessment has been, or will be, delivered elsewhere. This may or may not be a good idea in terms of effective practice, as effects and understanding certainly change as further detail emerges between Plan and Project, but that is not the issue. Determining what is considered to be an adequate assessment is a subjective judgment, and thus could easily form the basis of a future route to legal challenge within the draft EOR primary legislation. The LURB could still be altered, or EOR’s implementing regulations could seek to cover over this crack with further explanation on what this means and who can make this judgment, but whether this will be sufficient to remove that risk is hard to define, and it by no means the only risk residing in the draft primary legislation we have available to us.
4) Does the UK risk being left with an incoherent and dysfunctional system of environmental assessment?
The consultation is clear that DLUHC only has the mandate to draft the initial primary legislation – LURB, which is then amended through the parliamentary process – and defines the subsequent detail of just two sets of consent related EOR systems. This poses significant risk. From my own engagement across the UK, I understand that none of the administrations in Scotland, Wales and Northern Ireland see replacing EIA and SEA as a priority on their own environment and sustainability to-do lists, let alone across their wider legislative and policy agendas. As such, there is a well recognised risk that England – and UK wide regimes where Westminster has jurisdiction – will progress with the EOR system and the other UK nations will not.
This poses problems at the internal ‘borders’ of the UK and certainly for a development that crosses those borders. However, perhaps such cases are relatively few and far between and it does not matter if England gambles on the EOR experiment and others don’t, if it is a huge success they may follow along eventually. But what of the majority of current EIA Regulatory systems that exist outside of DLUHC’s remit. These are far less frequently applied than English Planning or Nationally Significant Infrastructure Project EIA, but they do outnumber the regimes with DLUHC’s remit, with four under DFT, five under DEFRA and six under DESNZ. The government can seek to bring in the EOR system all at once, but this is by no means guaranteed as departments have their own priorities and resource constraints. As such, we could easily see EOR in planning and for NSIP while transport and works, pipeline, marine, agriculture and multiple other sectoral regimes remain with EIA. This may only be for a few years, but we must also consider the forthcoming election, and whether the wider political spectrum is sold on EOR.
An Example: I was IEMA’s head of environmental assessment policy when the last round of EIA Directive changes were implemented into across the UK’s current EIA Regulations. For me there are clear lessons to be learned from this. Firstly, it worked very well as everyone had to change at the same time, but this was because EU law compelled it. Oddly as an independent nation, the same compulsion both across our nations – due to devolution – and across UK government departments – due to competing priorities - cannot be guaranteed.
Secondly, despite having a predefined script to work off (transposing the wording of Directive 2014/52/EU into their existing EIA Regulations) there was considerable divergence between the draft consultations – e.g. around sufficient expertise and competent experts. It took considerable hard work from consultees, including IEMA, to steer these conversations back towards the same script. EOR, however, have no defined script. Each department will only have the content of Part 6 of LURB and the DLUHC concepts set out in this consultation to guide them, giving a more or less free hand to define the detail of their EOR systems in their manner.
In my view, it will take considerably greater engagement, and lots of hard work, to get even close to generating a comparably aligned EOR approach across the English consenting regimes to which EIA is now more or less uniformly applied. If this is not achieved, the result risks being a spectrum of EOR with similar, but different, processes and requirements depending on the specific consent your development requires. This sounds like a risky plan both for efficiently consenting developments that require multiple consents and also for ensuring environmental outcomes are defined, assed and considered in a consistent manner.
The four strategic questions above don’t fall neatly into a response proforma but present different lenses to view the EOR consultation. There are certainly other issues that readers may wish to consider when engaging with the EOR proposals:
- Are there risks of regression from current EIA and SEA systems that pose risks to the UK-EU trade deal?
- Could EIA or SEA reform achieve the same goals in a shorter time or with fewer risks?
- Could piloting and a phased approach to EOR role out (as applied to Biodiversity Net Gain) provide a practical approach to ensuring effectiveness when implementing this novel and untested solution?
I, for one, see some potential for EOR to help reinvigorate plan-based environmental assessment. I retain doubts, however, as to whether the top-down nature risks failing to learn from the mistakes of a one-size-fits-all ‘objective led’ SEA system that was established in the UK via guidance in 2004, rather than having a clear regulatory basis. This is especially concerning as many of the most effective and influential UK SEAs I am aware of have applied more open methodologies – that stretch beyond objective (outcome) led approaches – to get to the heart of the real environmental issues and influence each plan can have.
Perhaps I am being too conservative, but I’d really like to see a more developed EOR approach piloted in parts of England, or perhaps a launch focused on reinvigorating English SEA, before widespread adoption of this novel solution. The UK’s plan-making and consenting system simply has too many environmental, economic and sustainability priorities to risk launching an EOR system that purports to be oven-ready, but turns out to be half-baked. Perhaps I am wrong and the very same sustainability priorities demand we must change track and place our faith in the government to deliver an effective EOR system straight off the bat.
From my experience of environmental assessment practice, policy and capacity building, it will be no easy task to implement an EOR system that truly delivers demonstrable environmental improvements, efficiencies and significantly reduced legal challenges. We should therefore put due time and proactive input into responding to the EOR consultation’s 26 questions to ensure our passion, knowledge and professional experience is heard in this debate.
IEMA: The above blog is the personal opinion of the author. In terms of the IEMA response to the reforms, the Institute will prepare a formal response over the coming weeks. The consultation runs for three months and IEMA will be consulting members on the EOR reforms over April and May. For more information or to get involved in IEMA’s official response to the EOR consultation, please email [email protected].