Review of the EU Directive on Environmental Impact Assessments (EIA)

A review of the EU Directive on Environmental Impact Assessment (EIA) has been finalised and has been cautiously welcomed by the profession. Whilst the directive had been revised previously it has now been updated to include new technical areas and to include additional steps intended on making it more robust. In particular one of the most significant changes includes a more standardised approach to deciding when an EIA is needed (screening), a requirement to use “competent experts” for EIAs and requirements for monitoring after development takes place. Disappointing shale gas exploration was not added to the project types listed in annex I of the directive which are subject to automatic EIA. Those in annex II are screened to see if they will have significant environmental impacts and have not been amended.

The new directive that will have to be adopted by 2017 will add a new annex, IIa, listing the information developers must provide for EIA screening. The competent authority, usually the local planning authority, must use this information to decide if an EIA is needed.

In recent years EIA case law has focused on the requirement in the directive on consideration of ‘cumulative’ impacts and ‘alternatives’ assessments. And whilst it was hoped that further clarity would be provided in the updated Directive it is likely that case law will continue to determine how alternatives are considered and how other projects / schemes are included within the cumulative assessments.

There was also an initial requirement for those carrying out the EIA to be ‘professions although the revised directive now refer to “competent experts” for the developer and “sufficient expertise” for the competent authority. How that will be applied and tested will I’m sure be borne out in the courts.

The revised directive also set post-development monitoring requirements for significant impacts. These must be proportionate to the impacts and therefore there will be longer term post planning obligations to implement the mitigation and take remedial actions if the anticipated results don’t appear.

Additional technical areas to be assessed within the EIA now include Biodiversity, climate change including greenhouse gases and natural resources although what these cover and assessment methodologies will have to be defined by member states.

It was hoped that there would be a formal requirement to have joint consideration of EIAs with assessments under the Birds and Habitats Directives although the new directive only considers this “where appropriate”.

As with the last revision and with the associated regulations most of what happens to define industry practice will come out of the courts – and let the games commence!