09 May 2016

New approaches to Environmental Impact Assessment will be required

Environmental Impact Assessment Image 4 sm

The first EU Directive dealing with environmental impact assessment (EIA) came into force in 1985. The main requirement was that the developers of specified projects, or those above certain thresholds, had to produce a statement of the predicted impact of their projects on the environment and how any significant effects would be mitigated (the environmental statement, or ES).

That Directive has been amended three times; in 1997 to take into account of the Espoo Convention on assessing transboundary effects; in 2003 to add requirements of the Aarhus Convention on public participation in environmental decision-making; and in 2009 it was amended to add carbon capture and storage to the list of projects that should be assessed. These various amendments were consolidated into a new Directive in 2011.

In May 2014, a new EIA Directive entered into force (Directive 2014/52/EU). Member States have three years to implement it, i.e. by 16 May 2017. In the UK, it is anticipated that the Government will issue draft amendment EIA Regulations in the next 12 months to allow sufficient consultation prior to the 2017 deadline. However developers and their advisors are already considering its implications and some are ‘future-proofing’ their EIAs .

The new Directive
What will change? A number of tweaks to the Directive text will have implications for EIA practice. For a start, the output of the assessment will be presented as an 'EIA Report', rather than the previous 'Environmental Statement'.

One key change requires governments to consider integrating EIA and other environmental Directives (especially habitats and birds) into a single assessment process. EIA Reports must be prepared by 'competent experts', but the original proposal of a register of such experts has been dropped. Public consultation on EIA Reports must be at least 30 days (which is greater than the current UK position). Another interesting change will require governments to ensure that mitigation measures are actually implemented and that monitoring is carried out. That extends the life of EIA beyond decision-making. There is a new article on imposing penalties for breach of the Directive, which should be 'effective, proportionate and dissuasive'.

Then there are the Annexes. The key to EIA practice has been the Annexes I and II, which respectively define projects for which an EIA is mandatory, and those for which the developer should seek opinion as to whether an EIA is required – a Screening Opinion. Those Annexes are unchanged* but a new Annex IIA sets out the information developers should provide if seeking a Screening Opinion. In particular, impacts from waste or use of natural resources would have to be explained. In addition, specific consideration will need to be given to impacts of a project on, and its resilience to, climate change, and impacts on cultural heritage and soils. Information on risks from major accidents or disasters, cumulative effects with any existing or planned projects and any mitigation works which would reduce the environmental impacts would also need to be included. Competent authorities will need to provide enhanced explanation of their screening decisions and will have to state which developer-proposed design and mitigation measures must be included as part of the scheme, for it not to be considered as being ‘EIA development’.

The Directive inserts clearer requirements for the assessment of the impact of projects in a number of areas including biodiversity, climate change, landscape, disaster risks (which would include, for example, flooding), and human health. Key new issues of note are the need to integrate health impact assessment practice into EIA, and demonstration that climate change resilience has been incorporated into the scheme design. In many cases these aspects will already be assessed, but the change is likely to require increased rigor, and will open them to greater scrutiny. The effects of a development on local community health will be particularly important in the combustion, waste and chemicals sectors.

The Directive is aimed at ensuring a high level of protection of the environment and human health through the establishment of common minimum requirements for the assessment of the effects of certain projects on the environment during the consenting process. The amendments strengthen existing legislation in an attempt to achieve this aim, and developers, as well as competent authorities, need to be aware of future requirements in an area that attracts a high level of legal challenge.

In conclusion, EIA Reports are likely to get bigger rather than smaller.

* Whist the Directive has not introduced changes to Annex I and II criteria, in England, minor amendments to some Schedule 2 thresholds will be introduced from April 2015. The threshold for industrial estate development will be raised from the current 0.5 hectare to 5 hectares; the screening threshold for the development of dwelling houses will increase from 0.5 to 5 hectares (including up to 1 hectare of non-residential urban development) or 150 residential units or more; and the threshold for other urban development will raise from the existing 0.5 hectare to 1 hectare.

Taken From Issue 7 of AVERT - The IChemE Environment Special Interest Group >>> http://bit.ly/avert2015


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