On 12 March 2014, the European Parliament voted to adopt substantive amendments to the Environmental Impact Assessment (EIA) Directive 2011/92/EU. With aims of maintaining the level of environmental protection provided by the Directive, the changes seek to increase efficiency with other EU environmental assessments, aid harmonisation of practice between Member States and improve on quality by moving away from a purely procedural process.
The UK has until May 2017 to transpose the new Directive into UK law, a process requiring substantial changes to the current EIA Regulations. These are outlined below. The UK government has indicated that consultation will take place this summer; however, the EU Referendum could interrupt these plans.
- Substantial changes to ‘screening’ a project for EIA aim to strengthen the process and will require a more comprehensive, front-loaded assessment from developers, who will need to provide details of waste impacts, use of natural resources, resilience to climate change and proposed mitigation. Competent authorities will need to fully justify their decision, whether EIA is required or not.
- The scoping process will not significantly change, and will remain voluntary for developers, but the subsequent ‘EIA Report’ will be required to be based on the Scoping Opinion where one is requested. This could be problematic if further changes to a design results in the issue being ‘designed out’ when it still needs including in the EIA Report.
- Once submitted, and as is the case in current practice, LPA’s will need to examine the EIA Report and make reasoned conclusions. However, in future they will be required to have significant expertise to examine the EIA, or access to such expertise if it is unavailable in-house. The Directive also introduces new monitoring obligations, which can apply to both the implementation and management of the project, and financial penalties for infringements.
Since March 2014, local authorities, developers and their consultants have been encouraged to gradually adopt the amendments prior to transposition into UK law. However, areas of uncertainty remain for developers around additional topics which will need to be considered and how EIA obligations will be monitored and discharged. Who will be responsible and what are the cost implications for the developer? Developers could end up paying twice for specialist expertise if the authority cannot process the EIA application in-house.
The amendments strengthen existing legislation in an attempt to ensure a high level of protection of the environment and human health; however, developers and competent authorities need to be aware of future requirements, adapting sooner rather than later, in an area which attracts a high level of legal challenge.
In the event of an out vote, the impact on EIA practice is likely to be minimal in the immediate aftermath. A withdrawal agreement would need to be negotiated so the UK would not instantly leave the EU, by which time the Directive would have been transposed into national legislation and become operative law.