TEP's Ian Grimshaw discusses recent legal developments broadening the scope for when environmental impact assessments (EIAs) should be undertaken
European rulings have made clear that developers and consent authorities should take a wide-ranging and comprehensive view of a project when considering whether EIA applies.
One such case involved the Madrid ring road development, which comprised a series of highway projects installed in phases. Each project was part of an overall proposal, but individually they fell below thresholds by which EIA could be deemed to be necessary. Together, the composite parts created a large highway scheme which would have satisfied criteria making EIA necessary and requiring a presentation of anticipated effects. The courts ruled the approach taken had circumvented this and that splitting a project into phases and not preparing EIA was inappropriate.
A further example concerned a project to build a 220kV overhead electricity line connecting the Italian and Austrian electricity grids. The length of line in Austria fell below the minimum length to trigger EIA being required and the competent authority deemed it a non-EIA development. However, the length of the line in Italy was over the EIA threshold and an environmental statement had to be prepared for the consent application.
The courts determined that the EIA should have considered the whole line. Its total length clearly exceeded the threshold and an environmental statement should have been prepared for the whole project and used in each country. This would have meant each competent authority was aware of the effects of the whole scheme when making a decision on its acceptability.
What’s in a project?
In another ruling, the European courts made clear that planning authorities should take a broad view when considering what should be included in the definition of a project.
Referring to airport development, it noted that: “works to modify airport with a runway length of 2,100m or more thus comprise not only works to extend the runway, but all works relating to the buildings, installations or equipment of that airport where they may be regarded, in particular because of their nature, extent and characteristics, as a modification of the airport itself.” (Abraham [2008] EC,R. 1-1197).
The ruling emphasises the need to be inclusive and comprehensive in considering the nature of the effects from a project. The project comprises not just those works that meet or approach a threshold in the Schedules of the EIA Regulations, but also all related works, notwithstanding that some of these would not otherwise comprise EIA development. The totality of the development needs to be assessed.
Application of these principles in the first instance is fairly straightforward, but there are a number of projects where there may be related developments. A new scheme may be proposed where some reliance is placed on separate infrastructure improvements undertaken by others which may not be deemed EIA development.
Cumulative assessment would generally seek to capture the “in-combination effects”, but there could be instances where works which are not otherwise EIA development could be construed as part of the EIA project and require an environmental statement.
The recent ruling and planning guidance change in England requiring that demolition has to be screened for EIA may now result in new importance being placed on what will the land be used for after demolition. Could it be the case that a comprehensive EIA for demolition would also need to consider future site use? Where future development is uncertain or a site is cleared for speculative development, a fairly broad spectrum of potential effects may be required.
How big a footprint?
Further questions may arise in future, in particular related to sustainability assessments. The effects of a project are generally considered based on its spatial characteristics, however sustainability assessments typically consider the sourcing of materials and the notion of carbon footprint is now considered mainstream.
In the not-too-distant future, a decision may need to be taken as to how far an EIA needs to consider activities whose indirect effects may be experienced remote from the site of the project itself.
Furthermore, these types of decisions will not be restricted to sourcing materials for construction. If, for example, a new biodiesel plant is proposed, to what extent should the EIA consider how the materials for fuel are obtained? The effects experienced close to the plant may be very similar with regard to transport and emissions. Reusing old cooking oil from local fast food outlets may be considered a positive benefit. However, importing oil derived from plants grown on land that could be used for feeding a local population clearly presents a different type of effect. In a liberated market economy, there may be options for both to be used at different stages in the project’s life.
At a time where developers are nervous of the risk posed by projects and extremely wary of uncertainty, keeping assessments at a level they feel is appropriate and proportionate is likely to be particularly important. However, where the line should be drawn when considering effects will continue to require the exercise of some judgement.
This article was written as a contribution to the EIA Quality Mark’s commitment to improving EIA practice.
Ian Grimshaw is a director and founder of TEP. [email protected]
