Key Contact: Alison Hardiman – Consultant | Alice Whittaker – Partner and Chairperson | Rachel Minch – Partner | Leonora Mullett – Partner | Lee Boorman – Associate |
The EU Simplification Package with regard to EU Environmental Law was published in December 2025 and includes a Proposal for a Regulation on speeding-up environmental assessments.
The opening lines of this proposal state that ‘EU action is urgent to accelerate planning and permit granting procedures whilst ensuring high environmental standards’. A key stated objective is to bring ‘simplification, coherence and legal certainty for faster and better environmental assessments, providing a legal framework for all sectors.’
We note several topics arising that are deserving of particular focus and will publish a series of short notes on them over the coming weeks but in the first instance, wish to set the context in this document. It is particularly relevant to note the overlap in recent initiatives at EU and national level.
Context
Nationally, the Irish ‘Accelerating Infrastructure Report and Action Plan’ includes as the second of its four pillars ‘Regulatory Reform and Simplification’. Actions are identified to ‘simplify and streamline regulatory processes’ and the ambition identified is that the ‘era of slow, sequential approvals will be replaced with a system that works in parallel and at pace’ in parallel with the EU simplification agenda.
Like the EU proposal, this initiative is similarly focussed on reducing the onerous procedural requirements of environmental law that seem to give rise to slow and repetitive or awkwardly designed requirements that could be streamlined without compromising the objective of environmental protection.
While there has been commentary arising to the effect that ‘simplification’ of environmental law will inevitably lead to reduced protections, it does seem evident that the current procedural approach to these assessments leads to overly lengthy materials. It is also clear that a coherent legal framework for the development of infrastructure, including renewable energy infrastructure, with regard to the vital requirements of environmental protection, nature restoration and climate adaptation is absent.
The challenge arising is exemplified by the fact that the recently published Critical Infrastructure Bill, 2026 seeks to disapply article 15 Climate Action and Low Carbon Development (Amendment) Act 2021 but its projects will nonetheless remain subject to all climate protections required under the EIA Directive, the EU Climate Law and myriad international provisions. This non-coordinated approach is inherently problematic in terms of legal certainty for prospective developers, decision makers, and climate appropriate project design.
Legally certain measures that address the issue of overly complex regulatory processes is the intention at both EU and national level. But how to achieve this streamlining outcome without reducing environmental protection under the law? And how to ensure that reforms introduced now do not inadvertently lead to legal challenges arising from inconsistent requirements under various laws?
Legal Coherence
As with the approach taken within RED III, December’s proposed regulation proposes to achieve the objective of simplification of environmental law without amending the terms of the environmental Directives that underpin this body of law. This includes the SEA, EIA, Water Framework, Birds and Habitats Directives in particular.
The proposed Regulation outlines 16 Articles. The thrust of these is to streamline environmental assessment procedures so that they are carried out ‘in combination’ ‘to the maximum extent possible’ (Article 4), to define maximum timeframes for impact assessment under the EIA and SEA Directives (Article 7) and to mandate effective cooperation between Member States in relation to the assessment of transboundary assessments (Article 9).
This approach focuses on allegedly flawed implementation practices by Member States regarding the Directives without altering the requirements of the Directives themselves. A key exception to this approach is the proposed Article 8 on ‘Protected Species’:
‘This provision outlines that occasional harm to protected bird and other species during project activities is not considered deliberate be considered to be deliberate [sic] within the meaning of Directive 2009/147/EC and Directive 92/43/EEC if appropriate and proportionate mitigation measures are used and best technologies are considered, requiring Member States to monitor effectiveness and adapt measures to prevent significant impacts on species populations.’
The text of proposed article 8 reflects a comparable component of article 16b, RED III. It also recognises the extraordinary impact of the terms of the Birds Directive as interpreted by the CJEU in the 2025 decision Voore Mets, previously analysed by our team. It purports to limit the meaning of ‘deliberate’ under the terms of both the Birds and Habitats Directives as interpreted by the CJEU – subject to mitigation measures and adaptive management practices that are accepted as being ‘appropriate’, ‘proportionate’ and effective’ respectively.
Most recently, the EU Commission has announced that they will be carrying out a ‘stress test’ of the Birds Directive and Habitats Directive throughout 2026. The aims specified include to reduce unnecessary administrative burden and to focus on the appropriate assessment procedure for Natura 2000 sites under Article 6. Other topics to be explored are derogations and policy coherence. It is planned that a ‘report on the stress test’ will issue at the end of 2026 and that this report will help to inform whether changes in the legal framework (Birds and Habitats Directives) are necessary to meet simplification objectives.
It is assumed that an associated objective is to achieve a coherent legal framework where the Birds and Habitats Directives themselves reflect the interpretation afforded them within RED III and this proposed regulation once adopted.
Challenges
While there is significant concern regarding the risks of dilution of environmental protection that would arise from the reopening of the environmental directives, it is the case that inconsistencies currently arise as between legal obligations on Member States under a variety of directives and regulations that are hard to reconcile. This is reflective of multiple simultaneous ambitions at EU level regarding increased competitiveness, energy security, nature restoration and climate action across the region.
The water, transport and energy sectors all require the development of networks of infrastructure that is essential to the functioning of society. These underpin the delivery of housing. As we seek to transition to renewable energy across the EU, the question of grid and interconnectivity becomes centrally relevant. Twinned with these critical infrastructure challenges is the objective of nature restoration which also requires fit for purpose environmental assessment tests and legal alignment with essential land use considerations.
These ambitions require a major programme of infrastructure roll out. However, this cannot be successfully achieved without due regard for flood plains, biodiversity protection and enhancement, restoration of carbon sinks (forest and peat) and significant provision for climate action.
At this juncture, therefore, the simplification agenda must be targeted and effective. The outcomes must be legally certain rather than comprising mere guidance. The topics of policy coherence and scope for adaptation are centrally relevant and key issues that we have identified for specific attention in this regard include:
- Environmental assessment for nature restoration projects
- Hierarchy of environmental assessment: plan and project level
- Facilitation of networks of projects under the law
A series of notes on these specific issues will follow over the coming weeks.
Provision of legal clarity as regards how Member States and prospective developers can and should assess and mitigate environmental impacts while seeking to achieve ambitious and legitimate EU and national objectives will underpin the coherence and effectiveness of this evolving body of law.
Please do not hesitate to contact members of our team in Philip Lee for guidance as regards how best to comply with the requirements of the full body of environmental law in accordance with EU and Irish law during this time of ongoing reform and resulting complexity.
