Tuesday, May 16, 2017
10 Key Points:
Today is transposition day for the new EIA Directive, however the legislation necessary to transpose the Directive into Irish law has not yet been adopted. The Department of Housing, Planning, Community and Local Government has issued a ‘Key Issues Consultation Paper’ and is inviting interested persons to make submissions by 23 May 2017. The proposed approach is to adopt legislation necessary to transpose the mandatory obligations under the EIA Directive, and to leave over other discretionary measures for consideration at a later stage.
Notwithstanding the absence of national transposition legislation, the provisions of the new Directive may be deemed to apply from today, 16 May 2017, under the principle of direct effect, and for that reason applicants and decision-makers should aim to comply with the new Directive from today.
The new Directive is stated to apply (subject to national legislation) to:
Various proposals and amendments were discussed during negotiations, including the following suggested additions to the Annex I and II list of projects:
Open-cast mining; construction of lines for long-distance railway traffic and of airports; gold mines which use processes involving cyanide ponds; peat extraction, where the surface of the site exceeds 150 hectares; unconventional gas exploration and extraction; overhead, underground or combined overhead and underground electrical power lines, and/or upgrading of such lines, and construction and/or modification of substations; theme parks and golf courses planned for areas of water shortage or at high risk of desertification or drought
Wild capture fishing activities; Research and exploration of minerals and extraction of minerals by marine or fluvial dredging; demolition of projects listed in Annexes I or II.
Ultimately, however, no changes were made to the Annex I and II lists of projects in the new Directive. Some mention of other classes of project can be found in the new recitals, for example Recital (12) refers to projects in the marine environment, and requires that EIA and screening determinations should take into account the characteristics of those projects with particular regard to the technologies used (for example seismic surveys using active sonars) and specific reference is made to the Offshore Petroleum Safety Framework Directive 2013/30/EU. It will have to be seen what role the recitals will play in due course when interpreting the scope of EIA project classes under Annex I and II.
#3 New Definition of EIA
The only new definition is of EIA, which is defined as a process consisting of:
As noted above, other definitions were proposed and discussed during negotiations, some of which might have brought welcome clarity to the Directive. For example:
None of these proposed definitions were included in the new Directive, however, there are echoes of these proposals in the recitals. For example Recital (16) refers to the protection and promotion of cultural heritage comprising historical sites and landscapes, and provides that “it is important to address the visual impact of projects, namely the change in the appearance or view of the built or natural landscape and urban areas, in environmental impact assessments.”
#4 Screening determinations:
Annex II lists the project types for which EIA may be required, depending on a number of factors such as the size, nature and location of the project. Member States may set national thresholds and/or assess such projects on a case-by-case basis. In Ireland, we apply both approaches so that, where a project falls within a class listed in Annex II but is below the national threshold, unless the likelihood of significant effects can be excluded, the relevant competent authority must carry out a screening exercise to determine whether the proposed project, on its own or in combination with other projects, is likely to have a significant effect on the environment.
One of the more significant changes introduced by the new Directive is the addition of Annex IIA, the information which a developer must provide to the competent authority to inform a screening determination. Annex IIA information includes the following:
the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.
2. A description of the aspects of the environment likely to be affected by the project.
3. A description of any likely significant effects, to the extent of the information available on such effects at that time, including:
Annex IIA requires information on the physical characteristics of the whole project and Recital (22) to the Directive provides that EIA and screening procedures should take account of “the impact of the whole project in question, including, where relevant, its subsurface and underground, during the construction, operational and, where relevant, demolition phases.” The new Directive confirms that the screening information (and subsequent determination) should include and take account of any mitigation measures proposed by the developer, and the cumulative impacts of the proposed project with other existing and/or approved projects.
Annex IIA provides that the Criteria set out in Annex III shall be taken into account when compiling the Annex IIA information. Annex III sets out the criteria to determine whether Annex II projects should be subject to EIA.
There is some concern that the more formal screening process could result in competent authorities carrying out a ‘mini-EIA’ before the full EIA, and certainly during negotiations it was proposed that the Annex IIA information should be provided in summary format only, that the amount of information should be kept to a minimum and limited to the key aspects that allow the competent authority to make its decision on whether EIA should be required. It was also proposed that the Commission would be granted the delegated authority to amend Annexes IIA, III and IV as required from time to time, for example to adapt to scientific and technical progress, however these proposals were not included in the new Directive.
Other proposals to ensure public participation during the screening process were similarly dropped from the final draft, on the basis that it would be impractical to require public participation within the intended time-limits for screening. Instead, the new Directive requires that members of the public are informed of the screening determination, which must state the reasons for the decision.
The screening determination is based on the criteria set out in Annex III of the Directive. Some changes to Annex III under the new Directive include:
Consideration of the size and design of the whole project
The environmental sensitivity of the area, with regard to
The type and characteristics of the potential impacts
Finally, the new EIA Directive permits member states to set de minimus thresholds below which projects will not require EIA, or screening for EIA. The Department in the ‘Key Issues’ paper has indicated that it does not intend to transpose this provision in the national legislation at this time. Arguably, this may result in Ireland having a more onerous EIA regime than applies in other parts of the EU.
Screening determinations must be made within 90 days of receipt of complete information under Annex IIA, unless the period is extended by the competent authority giving reasons.
#5 Scoping opinions:
A scoping opinion sets out the scope and level of detail required in the EIA report. The new Directive permits member states to provide for mandatory scoping, however the Department does not intend to implement this provision. There is no obligation for public participation however the scoping opinion must be made public and the competent authority is permitted to take into account any unsolicited submissions or observations made by members of the public.
During negotiations on the new Directive there were proposals for developer-friendly provisions which would have limited the ability of competent authorities to revisit the scoping opinion or require additional information, unless there were exceptional circumstances justifying such a requirement. The scoping opinion must have regard to the list of information in the (amended) Annex IV, which sets out the minimum information to be provided in the EIA Report.
There is no time limit under the new Directive for the delivery of scoping opinions.
#6 Quality of EIA:
Developers must ensure that the EIA report is prepared by competent experts. Recital (33) provides that experts involved in the preparation of EIA reports should be qualified and competent. During negotiations on the draft Directive it had been proposed that the EIA report should be prepared by accredited and technically competent experts, but this was deemed impractical.
Competent authorities must have, or have access to, sufficient expertise to examine the EIA report. The competent authority may seek any supplementary information that it requires which is directly relevant to reaching a reasoned conclusion on the significant effects of the project on the environment. Recital (33) provides that “sufficient expertise, in the relevant field of the project concerned, is required for the purpose of its examination by the competent authorities in order to ensure that the information provided by the developer is complete and of a high level of quality.”
A practical suggestion which was discussed during negotiations on the draft Directive was for member states to establish panels or committees of technically competent and independent experts (subject to appropriate guarantees of competence and impartiality) to assist the competent authorities prepare screening decisions and assess applications. There is no reason why member states could not adopt such an approach to ensure access to independent and competent experts on a shared services basis, notwithstanding that it isn’t an obligation under the Directive.
The new Directive requires competent authorities to put in place the necessary administrative measures to avoid conflicts of interest, including appropriate separation between potentially conflicting functions. Competent authorities are required to demonstrate that they have performed their duties in an objective manner, and are not in a situation giving rise to a conflict of interest.
Earlier legislative proposals suggested that potential conflicts could arise where there is a relationship of dependence between the competent authority and the developer, or any links or sub-ordination between them. This could arise, for example, where the competent authority had commissioned the project to be carried out by another body or agency.
It has always been a requirement of EIA to ensure that a proposed development is assessed by reference to alternatives, and the new EIA Directive clarifies that this requirement relates to the reasonable alternatives studied by the developer, which are relevant to the project and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the project on the environment.
A new article 8a specifies the information which must be included in the competent authority’s decision.
2. A decision to refuse consent shall state the main reasons for the refusal.
Competent authorities must take into account “the results of consultation and the information gathered pursuant to Articles 5 – 7” in the development consent procedure. Under the current Directive competent authorities must only ‘consider’ this information.
The decision should refer to the mitigation measures relied upon, and any post-consent monitoring required to ensure the mitigation is implemented. The parameters, duration and scale of monitoring should be proportionate to the level of potential risk to the environment. Existing monitoring arrangements under other EU and national legislation may be used, as appropriate, so as to avoid duplication.
The new EIA Directive leaves open the question of the efficacy and enforcement of mitigation measures. Proposals discussed during negotiations included provision for remedial or compensatory measures to be carried out if monitoring revealed unanticipated significant adverse environmental effects, however those provisions were excluded from the final Directive. Their echo is found in recital (35), which provides
“Member States should ensure that mitigation and compensation measures are implemented, and that appropriate procedures are determined regarding the monitoring of significant adverse effects on the environment resulting from the construction and operation of a project, inter alia, to identify unforeseen significant adverse effects, in order to be able to undertake appropriate remedial action. Such monitoring should not duplicate or add to monitoring required pursuant to Union legislation other than this Directive and to national legislation.”
Member states must ensure that national legislation imposes penalties for non-compliance with the Directive, and such penalties must be effective, proportionate and dissuasive. The Department’s ‘Key Issues’ paper suggests that adequate provisions exist currently in the Planning and Development Act 2000, as amended, but that is perhaps a more nuanced question, particularly where legislation identifies an offence but there is in practice no enforcement body or mechanism.
#10 Joint and Co-Ordinated Procedures
In an attempt to streamline the EIA Directive with other EU Directives on environmental protection, and reduce regulatory burden, the new EIA Directive provides that:
The EU Commission is obliged to adopt Guidance for member states on the implementation of these procedures, but no such guidance has been published to date.