In 2014, the European Parliament adopted further amendments to the 2011 Environmental Impact Assessment (‘EIA’) Directive, aiming to
‘simplify the rules for assessing the potential effects of projects on the environment’. Despite the United Kingdom’s pending exit from the European Union, the requirement to transpose the Directive into national legislation by May 2017 remains (
my colleague Liz Evans has covered in detail in a previous post why).
In the last few weeks, both Scotland and Wales (
NLP’s summary can be found here) have started their respective consultations on transposing the Directive into their own Regulations, and environmental practitioners are awaiting consultation on how the Directive will be transposed into English legislation.
Over the coming weeks, as consultation continues, NLP will look at various elements of the Directive, and what implications they are likely to have on EIA.
One of the changes proposed by the Directive that has the potential to have a considerable impact on how EIA is undertaken throughout the UK is the requirement that, where a scoping opinion is issued by a determining authority, an EIA ‘report’ (the revised name for an Environmental Statement in the Directive) shall be
“based on that opinion, and include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects of the project on the environment”.
Although voluntary, the current process of EIA scoping is a very valuable tool when undertaking assessments, as it allows developers to agree what topics should be assessed and how assessments should be undertaken. The scoping process is a non-binding tool, which allows for discussions between consultants and the determining authority to continue to engage on methodologies beyond issue of the opinion and as a scheme evolves in design.
Common practice sees a request for a scoping opinion detailing a scheme in a ‘worst case’ scenario. Should design changes prior to submission of an EIA report affect how a methodology has been agreed in the scoping opinion, the non-binding nature allows flexibility of approach, and the current process allows an EIA report to explain any changes.
Whilst the Directive will allow revised Regulations to retain the voluntary nature of the EIA scoping process, does it allow retention of the flexibility for developers and consultants to amend their methodologies as a scheme evolves, if a scoping opinion has already been issued? On first view it would appear not, and it would suggest that a developer would have to seek a further scoping opinion (or multiple) to agree any changes. Given the statutory five-week process for issue of an opinion under the current Regulations, this could potentially lead to lengthy delays before submission.
This amendment also potentially shifts the focus of the EIA scoping process from that of a helpful guide for methodologies within an EIA report, to a procedural set of handcuffs for a proposed development.
If this is the case, does the Directive discourage the voluntary scoping process? Seemingly it does, however not seeking a scoping opinion could delay the determination of an application post-submission, presenting potentially bigger risks for a developer. The absence of a scoping opinion prior to submission gives no certainty to the content of an EIA report, and could delay the decision-taking process.
This certainly appears to place increased importance on the timing of seeking a scoping opinion. Scope too early and the opinion might be out of date by the time of submission, but scope too late and the opinion might arrive too late to robustly include its requirements.
Additionally, from a determining authority’s point of view, there is the potential that mandatory implementation of scoping opinions could result in authorities taking a more risk-averse approach and asking for more information at the scoping stage than would otherwise be needed to consider the significant effects of a development.
By way of example, we have reviewed the Welsh consultation on its changes to the EIA Regulations which suggests amending (increasing) timescales for issuing scoping opinions to address this Catch-22 situation. Whilst this might allow a determining authority sufficient time to consider a development and provide a proportionate response, it doesn’t necessarily address the issue of how to amend a methodology as a scheme evolves, between the time of the scoping opinion being issued and the EIA report being submitted.
It is hoped that the Regulations, when they do come into force, will clarify the implications of an EIA report being robust for submission but not meeting the requirements of an issued scoping opinion, in order to avoid delays to schemes post-submission. It is also certainly hoped that the Regulations allow the scoping process to retain its flexible and iterative nature rather than be bogged down in procedure which would restrict any assessment work.
Are there any obvious solutions to this conundrum? Perhaps we could be heading down the route of scoping opinion addendums that could be issued quickly by determining authorities to update their scoping opinions? We do know the EIA process does like an addendum...
