#5272 - Environmental Impact Assessment - Environmental Law

Components of process:

• Screening = what activities should be subject to EIAs?

• Scoping = what impacts should be assessed in an EIA?

• Preparation of the EI statement (EIS).

• Public Participation.

• Ultimately deciding if project should proceed.

EU Framework.

• Directive 2011/92/EU on the assessment of environmental effects of projects (EAD). Passed under Art 191(1) TEU competence.

• Art 2(1) – MS adopt all measures necessary to ensure that, before they consent, projects likely to have significant effects on the enviro by virtue of nature, size or location are only made subject to some form of consent and an assessment of its effects.

• Art 3 – Generally the EIA will identify, describe and assess the direct and indirect effects on human, animal and plant life, natural enviro + cultural heritage.

• Art 1(2) – Project = the execution of construction works or of other installations or schemes AND other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources.

• Aannemersbedriff – directive has wide scope and purpose; courts will return to ensuring projects likely to have significant impacts on the enviro will need EIA.

• Wells (2004) – Art2(1) also used in general application beyond scoping. Q of whether new set of conditions was a development consent. ECJ – where new conditions replace the very substance of the consent they will count as new consent.

• Commission v. UK (2006) – 2(1) also requires that whenever consent is given for something which likely to… there will be an EIA. Thus where there is a multi-stage development consent such as in the case of conditions being put onto development consent there must be an EIA at each point where the consent is given – e.g. where the auth eventually okies the development post conditions.

• Barker (2006) – outline planning permission for a large entertainment complex – doesn’t matter when you consider doing an EIA (outline planning permission or for each individual project) so long as this complies with 2(1) likely to have a significant…

Screening (should we do one?):

• Art 4 – (2) need for EIA of projects listed in annex II to be determined case by case or by thresholds/criteria of MS or both.

(3) Annex III selection criteria to be regarded either way. (4)Determination made by the competent authorities under (2) must be available to public.

Annex I must have EIA (inc. nuclear power, motorways, etc.). Annex II lists projects which are, depending on circs, likely to have significant effect on enviro (e.g. agriculture, tourism).

• Aannemersbedriff – MS setting threshold for dyke size to extent that no dykes considered likely… has exceeded limits of discretion to fix threshold unless all those projects, viewed as a whole, can be regarded as not likely… All projects under threshold must be unlikely…

• Mellor (2009) – EIA must obviously be accompanied by info making it possible to see that it was based on adequate screening and that it complied with MS rules. Does not follow that the reasons for not giving an EIA must be included. But JR generally needs to have reasons so as to judge the legality of them. Thus under Directive no need to give reasons but if requested required under admin law.

Scoping (what effects should be considered?):

• Art 5(2) – MS must take all necessary measures to supply developer with opinion on which impacts to assess if requested.

Info Required in EIA:

• Art 5(1) – MS shall ensure developer supplies appropriate info specified in annex IV so far as they think it is relevant to the project. See annex (inc. description, alternatives…).

• Art 5(3) – Info necessary: description, remedies to significant effects, data required to analyse main effects on enviro, main alternatives + reasons for choice, non-technical summary of above.

Public Participation:

• Art 6(1) – MS to ensure auth concerned due to enviro duties given opportunity to express opinion on info in EIA and consent. MS to designate auths to be consulted and Art5 info to be forwarded to those + arrangements to be made for consultation.

• Art 6(2-4) – 2. Public shall be informed early in decision making procedures in 2(2)/ as soon as info can be reasonably be provided of: request for consent, fact that EIA needed, details of auths responsible for decision, possible decisions, indications of availability of info in 5, details of arrangements for public participation.

3. MS shall make available in reasonable time: info in 5, advice of auth, etc.

4. Public to be given early opportunities to participate and are entitled to express opinions.

• Art 7 – process for consulting other MS when trans-boundary.

Decision Making and Challenges to Decisions:

• Art 8 – Results of 5, 6 and 7 must be considered in consent procedure.

• Art 11 – MS must ensure public having sufficient interest or maintaining the breach of a right have access to review procedure in court...

Direct Effect?

• Luxembourg v. Linster (2000) – case where directive provided no rights and so no DE.

AG Leger - Minimum enforceability possible instead of max under DE. Rather than substituting EU rule for MS rule they will merely seek to exclude MS rule.

ECJ – art 249 (now art?) sets out binding nature of directives, it is incompatible with this to exclude any possibility to rely on them. Thus directive may be taken account of in MS court to check MS is keeping within its limits. (Focus on obligations of MS over the indiv rights – thus EIA falls into exclusion cases rather than traditional substitution cases).

• Wells (2004) – Q of whether forcing EIA on individual via challenge of auth’s decision not to require EIA is horizontal? Mere adverse repercussions on the rights of third parties, even if they are certain, do not justify preventing an individual from invoking the provisions of a directive against the MS concerned. Thus not horizontal review, MS merely required to nullify the unlawful consequences of a breach of EU law. (Here court seeking to ensure effectiveness of directive).

UK Implementation.

• TCP(EIA)Regs 2011

• Reg 3(4) – PP not to be granted to application to which this section applies unless first taking enviro info into account.

• Reg 3(1) – 3(4) applies to: apps for permission for EIA development received by auth after commencement, apps for permission for EIA development lodged by authority pursuant to planning reg 3 or 4 , every subsequent app in respect of EIA development? ? ?

• Reg 2(2) – EIA development is either Sch I, or Sch II that is likely to have significant effect…

• Reg 4(2) – a. developer may decide by self to do EIA. b. LPA undertakes screening opinion.

• Reg 4(3-4) – SoS may decide to direct as EIA development.

• Berkeley (2000) – CA said that although an EIA should have been done here, since it would make no difference to do one at this stage in terms of the result, there wouldn’t be one. HL – The cornerstone of the regime is provision by developer of an EIS setting out data necessary to identify main effects of development on enviro. It is about provision of the info and doc not the result of that on the development. (Note again emphasis on art 2(1)). Necessary for public to take part. BUT substantial compliance would be enough, but it must in substance be an EIA – an EIA by any other name will do as well, here not such.

• Belize Alliance – EIA contained factual errors, inadequate? Court – The procedure laid down for an auth by statute and is binding upon decision maker. The merits of the decision itself are down to judgement and thus are not binding (reviewable?) except in so far as unreasonable. Court must defer to authorities in substantive decisions.

Lord Walker Dissent – EIA so flawed that the substantive decision could not be said to comply with regs. Thus court may enter into factual review.

Screening (Should we have one?):

• Two steps: (1) Whether Sch I or II, (2) If Sch II, whether likely to have significant impact on the enviro.

• Goodman v. Lewisham (2003) – Whether Sch I or II is a question of law and so if an auth reaches an understanding of those expressions which is wrong as a matter of law, then the court must correct that error.

• Jones v. Mansfield (2003) – auth deciding if likely to have significant effect – decision as to whether it is likely to have significant effect on enviro is one involving the exercise of a judgement or opinion – thus Wednesbury review.

• Bateman - ?? Question of significant effect becomes a legal question and so court has more intensive review for some issues in screening??

• Jones – court required that the decision maker had sufficient info on which to base the decision (to assess this court must use more intensive review than Wednesbury).

• Gillespie (2003) – More intensive review also to be used where deciding whether an auth can take account of possible mitigation measures in deciding if EIA is needed (screening). Court did not just say that LPA can decide on basis of mitigating factors unless Wednesbury – they said that mitigating factors should not be a consideration in the decision on an EIA unless remedial measures are modest in scope, or so plainly and easily achievable, that the LPA can properly hold that the development would not be likely to have significant effects. Laws LJ – such easy remedial measures are unlikely...