#17715 - Environmental Assessment Notes - Environmental Law

Environmental Assessment Notes

What is environmental assessment?

Fisher, Scotford and Lange (2019) define environmental assessment (EA) as a decision-making tool by which the potential environmental impact of a project can be assessed.

• In turn, this assessment can be taken into account in making a decision about whether that project can go ahead, and if so, on what basis.

All forms of EA are concerned with the process by which decisions are made, not their eventual substance.

• This begs the question, what is the value of a framework which does not mandate direct substantive consequences?

  • Holder and Lee (2007) offer the best answer to this question: they understand the conceptual premise of environmental assessment to be “that introducing information about the effects of development into a decision-making process encourages an informed choice to be made between environmental and other objectives, possibly resulting in less environmentally harmful decisions”

    • BUT: this would suggest that EIA is merely a tool: there is now a rich body of literature emerging which contests this view, asserting that that EIA is a process intended to bring about more profound changes in attitude by instilling environmental values in the decision-making culture or through wider social learning

      • BUT: to what extent are these aims inconsistent? Do they not actually support and reinforce one another?

When the first form of EA was introduced, the American judge Leventhal (1974) described it as “setting the law ablaze” - in saying this, he referred to the impact that EA had upon the nature of administrative decision-making processes.

What are the different types of environmental assessment?

Broadly speaking, there are two types of environmental assessment:

1. Environmental Impact Assessment (EIA) – since 1985, the EIA Directive has required and EIA to be carried out for all public and private projects that are “likely to have a significant effect on the environment’ before they are granted development consent by a public authority

2. Strategic Environmental Assessment (SEA) – in 2001, the SEA Directive was introduced, which requires assessment of the effects of certain plans and programmes on the environment

Per Fisher, Lange and Scotford (2019), there are some important differences between EIA and SEA:

• Identification of and Debate as to Alternatives – SEA is less quantitative than EIA and more focused on identifying and debating alternatives.

  • A comprehensive SEA regime should apply to all strategic decision-making and require the decision-maker to identify both (a) the objects of their strategic decision making, and (b) their SEA objectives

    • The decision-maker must then identify the most environmentally sustainable alternatives, achieving strategic objective by carrying out assessments of different alternatives

• SEA More “Upstream” – SEA was introduced to remedy the fact that EIA occurred to close to the end point of decision-making, and thus SEA represents an opportunity for environmental factors to be considered “upstream” in the decision-making process

What is an EIA?

Sadeleer (2002) has said that the EIA forces “truly revolutionary changes upon the traditional administrative process”

• Further, it gives “rise to a dynamic which informs administrators, project initiators and third parties and provides them with an opportunity to require fuller integration of environmental concerns into the decision-making process”

NOTE: EIA is heavily integrated into the planning process

EIA as a Process

EIA refers to a systematic decision-making process in which information is collected about the possible environmental impacts of a project and, on the basis of that information, the potential impact of that project on the environment is then assessed (Fisher, Lange and Scotford, 2019)

There are a series of steps involved in the EIA process:

1. Screening – at this stage, a decision is made about which activities should be subject to an EIA

2. Scoping – here, a decision is made about which impacts of a project should be subject to an EIA

3. Preparing an Environmental Impact Statement (EIS)/ Environmental Statement (ES) – composing such a statement involves a series of different steps, including: describing the project and environmental baseline; identifying and predicting the impacts from a project; evaluating their significance; and assessing whether these impacts can be mitigated, or potentially whether alternatives can usefully be considered.

4. Public Participation – members of the public have the right to see and comment on the ES here

5. Making a Decision – here, a final decision is made about whether or not the project should go ahead

   • Importantly, most EIA systems only require the EIS to be taken into account, and does not dictate what the final decision will be.

Historical Development

EIA originated with the National Environmental Policy Act 1969 (NEPA), in the US – this was passed in light of the flourishing of environmental politics in the 1960s.

• Very quickly after the creation of NEPA, other jurisdictions introduced EIA into their law, including: Canada (1973); Australia (1974); West Germany (1975); and France (1976).

• In Pulp Mills (Argentina v Uruguay) the ICJ said that it could now be considered that there was “a requirement under general international law to undertake an environmental impact assessment”

  • However it noted that the scope and content of this form of EIA was not determined, as was to be left to each individual Member State.

Nature and Purpose of EIA

There is disagreement as to the purpose and nature of an EIA:

• Benson (2003) – views EIA in bureaucratic terms: EUA is seen as a rational and systematic process, perhaps also as holistic, proactive, anticipatory and integrated

• Saarikoski (2000) – views the EIA in deliberative terms: EIA has lost its credibility as a process driven by experts in which the public can only react to ready-made repots such as environmental statements

• Carpenter (1999) – views EIA in scientific terms: he focuses on the bi-geo-physical consequences of man’s activity in relation to the environment.

These different understandings lead to disagreement as to which actors should be involved in the EIA process and to what degree they should be involved

NOTE: these differing conceptions show that EIA is a social practice (rather than a mere set of procedures)

Limits of EIA

Fisher, Scotford and Lange (2019) identify three limitations of EIA:

1. Limits of Scientific Knowledge

• EIA is oft viewed as useful as it is a way of collecting, collating and interpreting information. However, the information base is often deficient and there is no realistic means of improving

  • Lawrence (1997) has argued that uncertainty is inherent in EIA

    • EIA usually involves complex processes and systems, which generate counterintuitive, acausal behaviour, are characterized by multiple interactions and feedback/feedforward loops, involve diffused authority and are often irreducible

2. Too Much Faith

• There is a danger that too much faith is placed in EIA as a decision-making tool, which potentially leads to too much weight being given to and ES (and what might be flawed information)

  • Tribe (1972) argues that EIA is useful because it distils a complex problem into an easy solution

    • BUT: this is problematic where it encourages distillation even where this is not possible, to the detriment of the analysis as a whole

3. EIA Not Binding

• Just because decision-makers have to take the ES into account, does not mean that they will make decisions which will avoid these impacts

How does the EIA Directive work?

The Directive

Despite opposition to the Directive from Member States (for fears it would lead to an overly rigid system and a growth in litigation), Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment was passed under (then) Articles 100 and 235 EC.

• NOTE: while the fundamental motivation for the Directive was environmental protection, one of the bases for harmonisation was the common market competence

  • The harmonising of this area of environmental regulation was a means of maintaining the common market by ensuring that competition was not distorted by different Member States having different EIA regimes

The EIA has undergone a range of amendments – it is not static (Fisher, Scotford and Lange, 2019)

• 1997 – addressed the perceived weakness of the directive by (a) widening its scope to apply to more projects, (b) considering the transboundary effects more fully, and (c) requiring the developer to provide more comprehensive information

• 2003 – made sure the Directive was consistent with Aarhus

• 2009 – made changes to Annex I and II, by adding projects relating to the transport, capture and storage of CO2

• 2011 – codified the Directive and earlier amendments

• 2014 –revised the Directive after a significant review

The Basic Obligation

Article 2(1) sets out the basic obligation under the EIA Directive:

“Member States shall adopt all necessary measures to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effect on the environment. Those projects are defined in Article 4”

When in doubt about the interpretation of the EIA Directive, one should always return to Article 2(1) – the courts regularly do this.

Article 1(2) defines project in the...