Key Contacts: Alison Hardiman – Consultant | Alice Whittaker – Partner and Chairperson | Rachel Minch – Partner | Leonora Mullett – Partner |
Following on from our notes on the EU Simplification Agenda and Simplification for Nature Restoration Projects, we are now looking specifically at the issue of how to tier environmental assessments at plan and project level in accordance with the requirements of EU law.
The EU has spearheaded a transition to plan led development which means that programmes of development including renewable energy, nature restoration and other EU based targets require an environmental assessment under the terms of the SEA Directive at plan level and then (with the exception of renewable energy projects within renewables acceleration areas or grid infrastructure areas under RED III), the full suite of project level assessments arising. There will likely be an appropriate assessment at both stages also.
It is noted that within the EU Commission’s Proposal for a Regulation on speeding-up environmental assessments that Article 4 sets out the following proposal:
‘Article 4: Streamlining of environmental assessment procedures
This provision aims at streamlining the various environmental assessments procedures that may be required by EU legislation for a same plan, programme or project.
This provision ensures that in the case of plans, programmes, or projects for which there is an obligation to carry out assessments of the effects on the environment or a screening arising simultaneously from Directive 2001/42/EC, Directive 2011/92/EU, Council Directive 92/43/EEC, Directive 2009/147/EC and Directive 2000/60/EC. Member States apply coordinated or joint procedures fulfilling all the requirements of those Union legislative acts.
This responds to concerns by stakeholders that length in authorisation procedures are very different between Member States due to the fact that some Member States combine environmental assessments procedures to the maximum extent possible whilst some others require one assessment process to be finalized before the following one is performed.’
This proposal suggests that resolving the legal complexity of what is entailed at different levels of environmental assessment can be resolved by requiring different practices within Member States rather than by clarifying the different legal obligations within EU law regarding the different assessments. EU law is, however, difficult to interpret in this regard and it is difficult to achieve legal certainty as regards the level of detail required at plan level and the extent to which gaps in data that can be deemed reasonable and acceptable. The appropriate level of assessment regarding likely cumulative and transboundary effects is specifically unclear.
Furthermore as regards a call to ‘combine’ procedures in order to mitigate the long length of authorisation procedures, reference can be made to Case C-671/16 Inter-Environnement Bruxelles and Others which found that “an environmental impact assessment report completed under the EIA Directive cannot be used to circumvent the obligation to carry out the environmental assessment required under the SEA Directive in order to address environmental aspects specific to that directive.”
SEA Directive and EIA Directive Environmental Assessments
AG Campos Sánchez-Bordona noted in Case C-24/19 A and Others regarding the SEA Directive,
“Although the word ‘strategic’ does not appear in its title or its text, the directive is usually known as the ‘Strategic Environmental Impact Assessment Directive’ because it places such an assessment at a higher (more strategic) level than that provided for in the EIA Directive.”
The Directives specify the requirements of the environmental assessment required under each of these Directives and their text is closely aligned.
It requires close analysis of the respective texts of the two Directives to establish a picture of the legal requirements under each and furthermore, to determine how they can most effectively be applied.
Within the SEA Directive, the environmental assessment is defined in Article 5 as follows:
- … an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex I.
Similarly, Article 5 of the EIA Directive defines the scope of the EIAR. It requires project details (a key difference) but thereafter requires its likely significant effects on the environment, a description of reasonable alternatives considered and the main reasons for the options chosen and additional information specified in Annex IV.
In the SEA Directive Annex 1 in turn details the nature of the ‘information referred to in Article 5(1)’. It includes the following subsections which help to explain the tendency to conduct ‘EIA style’ environmental assessments at SEA level:
- the likely significant effects on the environment, including on issues such as biodiversity, population, human health, fauna, flora, soil, water, air, climatic factors, material assets, cultural heritage including architectural and archaeological heritage, landscape and the interrelationship between the above factors;
- the measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme;
The contents of Annex IV EIA Directive closely mirror these subheadings. In particular, sub paragraph 4 of Annex IV – which can be referred back to sub paragraph (f) above – states:
‘A description of the factors specified in Article 3(1) likely to be significantly affected by the project: population, human health, biodiversity (for example fauna and flora), land (for example land take), soil (for example organic matter, erosion, compaction, sealing), water (for example hydromorphological changes, quantity and quality), air, climate (for example greenhouse gas emissions, impacts relevant to adaptation), material assets, cultural heritage, including architectural and archaeological aspects, and landscape.’
Article 12(2) provides that Member States shall ensure that environmental reports are of a sufficient quality to meet the requirements of the Directive.
A 2025 study to inform a report on the application and effectiveness of the SEA Directive reported that: “The assessment of cumulative and synergistic effects emerges as a widespread methodological challenge.” It is noted that over one-third of MS reported particular difficulties in this regard. The conclusions of the report recognised a need for methodological guidance on this subject.
EU Commission Guidance on the implementation of the SEA Directive, published shortly after its adoption, anticipated the difficulty in compiling comprehensive data at strategic level, noting:
“many uncertainties exist, and insufficient or missing data and inadequate knowledge may make it difficult to decide whether significant effects are likely. Nevertheless, it is assumed that a rough estimation of the effects should always be possible.”
Habitats Directive: Plan and Project level AA
Article 6(3) Habitats Directive refers equally to ‘any plan or project’. Without the benefit of separate plan and project level Directives, any difference must be read in based on the appropriateness of differentiation between plan and project level proposals.
While AA is not referenced within the main text of the SEA Directive, Recital (10) states:
“All plans and programmes which are prepared for a number of sectors and which set a framework for future development consent of projects listed in Annexes I and II to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, and all plans and programmes which have been determined to require assessment pursuant to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild flora and fauna, are likely to have significant effects on the environment, and should as a rule be made subject to systematic environmental assessment. When they determine the use of small areas at local level or are minor modifications to the above plans or programmes, they should be assessed only where Member States determine that they are likely to have significant effects on the environment.”
It is standard practice for AA to be carried out in relation to such plans and this approach is endorsed within Case C-127/02 Waddenvereniging and Vogelsbeschermingvereniging, for instance, which described Article 6(3) as establishing
“a procedure intended to ensure, by means of a preliminary examination, that a plan or project which is not directly connected with or necessary to the management of the site concerned but likely to have a significant effect on it is authorised only to the extent that it will not adversely affect the integrity of that site.”
In terms of the level of certainty required, with reference to the precautionary principle, the CJEU determined that “a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have significant effects on the site concerned,” and “where doubt remains as to the absence of adverse effects on the integrity of the site linked to the plan or project being considered, the competent authority will have to refuse authorisation.”
The CJEU in Case C-254/19 Friends of the Irish Environment noted that “an assessment made under Article 6(3) of the Habitats Directive cannot be regarded as appropriate if it contains gaps and lacks complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt.”
EU Guidance on Articles 6(3) and 6(4) published in 2021provides some guidelines on the level of detail required in ‘strategic’ plan level assessments.
“The level of detail of the plan itself will determine the scope and extent of the appropriate assessment, but in all cases the assessment must aim to identify sensitive or vulnerable areas or other potential risks or conflicts with Natura 2000 sites so that these can be taken into account at later stages in the planning process.”
“The assessment should be proportionate to the geographical scope, to the plan’s level of detail and to the nature and extent of the likely effects. In some cases, it may not be possible to analyse in detail all the possible impacts on individual sites at this stage; however, sufficient analysis must be carried out” to identify the main impacts on Natura 200 sites, possible broad mitigation measures, alternatives and potential cumulative impacts.
“For strategic plans where it is not possible to identify effects on individual sites, the analysis should as a minimum focus on potential impacts and major risks; site-specific effects will then need to be analysed at project level. In such cases, the appropriate assessment should focus at least on determining the Natura 2000 sites that could be adversely affected as well as any EU protected habitats and species that could be affected (also outside Natura 2000), effects on connectivity, fragmentation and other effects at the network scale. This should serve to orientate the scope and focus of the assessment of individual projects.”
Helpful Distinctions within the Directives
Articles 4 and 5 of the SEA Directive do expressly envisage plans as forming part of a hierarchy. Specifically, Article 4(3) provides that, with a view to avoiding duplication of assessment, States shall “take into account the fact that the assessment will be carried out, in accordance with this Directive, at different levels of the hierarchy” and shall apply Articles 5(2) and (3) for that purpose.
Article 5(2) provides that the SEA Environmental Report shall include the information that “may reasonably be required taking into account current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision-making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment.”
Article 5(3) expressly permits “relevant information obtained from the environmental assessment of other plans and programmes and at other levels of decision-making”, to be used for the purposes of preparing the SEA Environmental Report.
Crucially, Case C-43/18 Compagnie d’entreprises CFE stated that “provided that the assessment of their effects has already been carried out, a measure does not fall within the meaning of ‘plans and programmes’ if it is part of a hierarchy of measures which have themselves been the subject of an assessment of their environmental effects and it may reasonably be considered that the interests which the SEA Directive is designed to protect have been taken into account sufficiently within that framework.”
As noted by the AG in Case C-24/19 A & others, the “SEA Directive and the EIA Directive complement one another: the former is intended to bring forward the environmental impact assessment to the strategic planning stage of the actions taken by national authorities. The study of the environmental effects required is, therefore, broader or more comprehensive than that relating to a specific project.”
Recital (32) of the EIA Directive provides that “with a view to avoiding duplication of assessments, the results of other assessments under Union legislation, such as Directive 2001/42/EC… should, where relevant and available, be taken into account.”
Conclusion
Based on the foregoing analysis, the call to carry out different assessments ‘in combination’ as the means of simplification of the process, as put forward in Article 4 of the Proposal for a Regulation on speeding-up environmental assessments, is queried. These assessments serve different functions and must comply with different legal tests. Accordingly, simply merging them negates the benefits of the plan led approach but also, is likely to lead to mistakes that give rise to grounds for legal challenge.
Rather, recognising that these assessments are designed to complement each other and that duplication or repetition of content is to be avoided can lead to shorted, more targeted project level assessments that flow from the plan level work done previously. EU Commission Guidance on speeding up of the permitting process for renewable energy infrastructure projects is helpful in this regard and promotes as best practice a more high level and strategic approach to SEA.
What is really needed to confer legal certainty on the approach is clarity within the wording of the SEA and Habitats Directives themselves but pending the outcome of the ongoing stress test, it is evident that the EU Commission is directing Member States towards a more sophisticated interpretation of these requirements, recognising that there is a hierarchy of environmental assessments within which different subject matter and levels of detail ought to be recognised by decision makers as being appropriate and sufficient.
This article was written with the assistance of Associate, Lee Boorman.
