EIA Regulations are changing – What does this mean for you?

 

environmental impact assessment

The role of the Environmental Impact Assessment Directive (EIA) and how is it changing?

The core role of EIA is to maintain a level of environmental protection established within the current EIA Directive. The main aim is to drive effective EIA across the EU through three themes:

Harmonisation, efficiency and quality.
The EIA directive has been amended and codified a number of times since 1988. Several changes were made before adapting to the current Directive in 2014 which is required to be transposed by Member States on or before 16 May 2017.

Experts
The revised Directive introduces the need for EIAs to be produced by ‘competent experts’. The Directive does not however provide a definition for the term. It is for the LPA to decide whether the expert is competent or not.

Screening
Future screening requests require more specific information. At present, the information required is minimal, only requiring a plan, description of development and any other such information the developer wishes to provide.
Future screening requests now require the following:
• A plan
• Description of development
• Development proposal
• Sensitivities of proposed location
• Aspects of the environment likely to be significantly affected
• Description of likely significant effects from a list of species
• Any other information the developer wishes to include including mitigation
This can be considered as a ‘mini EIA’ at the screening stage as the results from other assessments, mitigation measures and avoidance measures are considered in this process. The 21-day time scale for receiving a screening opinion has been retained – the option to extend up to 90 days may be agreed in writing.

Scoping
The proposal for mandatory scoping was not implemented. A scoping opinion can be requested from the LPA, the EIA will need to be based on the response given. The Directive does not clarify at what stage an EIA is required or how much information should be provided to support the request.
A broader scope of issues to be considered under the new regulations:
• Impacts on biodiversity, climate change, and landscape
• Vulnerability to accidents and disasters
The provision of additional information will require local authorities to have the relevant expertise to assess the information provided and decide if the information is sufficient early on in the process. This imposes an additional burden on the role of the LPA.

Consultation time frame
Increased time frame from 21 to 30 days to consult and comment on any environmental information.
• What will changes to the screening and scoping requirements mean to you?
Developers and LPAs are likely to face practical consequences as there will be an inevitable delay in securing planning permission for an EIA development and furthermore, increased costs. The following will be enshrined in statute and an increased burden is imposed on both the LPA and developer: the need to submit a screening report, mitigation may be considered by the LPA, ES must be based on the scoping opinion and considered during determination. It has been argued that the changes are minimal and the impacts of the new regulations are minor.
• How is mitigation to be viewed in the new process?
There appears to more emphasis placed on mitigation particularly in the early stages. Mitigation will need to be imbedded into the design if to be taken into account in the screening process. Furthermore, the progress of mitigation will be monitored from screening through to ES and implementation to ensure that there are no breaches and no significant adverse effects. Developments which do not comply with the Directives will be subject to enforcement and monitoring action.
• How do planning consultancies need to adapt?
There is also a burden on consultancies to advise clients very early on about engaging an appropriate team who can assist in ‘designing out’ any impacts and appointing a competent expert to provide an ES. Greater input will also be required at the screening stage and someone must be appointed to monitor the commitments to mitigation to avoid breaches and enforcement action. Furthermore, clients must be advised about the transitional arrangements which are as follows:

Screening
Screened prior to 16 May 2017 – existing EIA Regulations apply
Screened on or after 16 May 2017 – New EIA Regulations apply

Scoping
Scoping request and ES pre 16 May 2017 – existing EIA Regulations apply
Scoping request and ES on or after May 2017 – New EIA Regulations apply

What legal challenges might arise from the amended regulations?

• Screening and scoping challenges
• JR of screening opinion and timing of challenge
• Enforcement action for failing to commit to mitigation measures

Relevant reading:
The Amending Environmental Impact Assessment

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