European Scrutiny Committee Contents


4 Environmental impact assessments

(34379)

15627/12

+ ADDs 1-2

COM(12) 628

Draft Directive amending Directive 2011/92/EU of the assessment of the effects of certain public and private projects on the environment

Legal baseArticle 192(1) TFEU; co-decision; QMV
Document originated26 October 2012
Deposited in Parliament1 November 2012
DepartmentCommunities and Local Government
Basis of considerationEM of 6 December 2012
Previous Committee ReportNone
Discussion in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information awaited

Background

4.1 EU legislation governing the carrying out of environmental impact assessments on public or private projects likely to have a significant environmental effect has been in place for 25 years, and the measures in question were recently consolidated into Directive 2011/92/EU,[16] which establishes a procedure for identifying whether or not a project is likely to have such an effect (and hence be subject to an assessment), and for identifying what the assessment should cover.

4.2 Developments of the kind listed in Annex I to the Directive which are considered likely to have significant effects require in all cases a mandatory environmental impact assessment, whereas, in the case of those listed in Annex II, where the effects depend upon their nature, scale and location, a Member State may determine through case-by-case examination, and/or by reference to thresholds or criteria established by it having regard to the conditions set out in Annex III, whether the proposed development is likely to have significant effects and should therefore be subject to environmental impact assessment. Those effects include the impacts on humans, fauna and flora; soil, water, air climate and the landscape; material assets and cultural heritage; and the interaction between all of these.

4.3 Where a project is subject to such an assessment, the Directive lays down a number of detailed conditions. In particular:

  • A Member State must ensure that a developer supplies the information set out in Annex IV, where it concludes this is relevant to a given stage of the consent procedure and to the project concerned, including its site, design and size; the measures being taken to address significant adverse effects; the data needed to assess the project's main effects; and an outline of the main alternatives studied by the developer and the principal environmental reasons for his choice.
  • The Member State must ensure that authorities having specific environmental responsibilities can express their opinion on the information supplied by the developer and on the request for development consent.
  • The public must be informed of a request for a development consent; if the project is to be subject to an environmental impact assessment; the nature of any decisions; an indication of the availability (including the timing and location) of information supplied by a developer; and of the opportunities for public participation, with the latter having to be early and effective, involving the right to express comments and opinions, and being allowed sufficient time to participate in the various phases.
  • The development consent procedure must take into account the information gathered and the consultations held, and any decision on that consent must be made available to the public, including its content and justification; the main reasons for the decision; and a description of any measures which must be taken to offset major adverse effects.
  • A Member State must also ensure that those with a sufficient interest (or maintaining the impairment of a right) have access to a review procedure before a court or other independent body in order to challenge the substantive or procedural legality of decisions, it being for that Member State to determine what constitutes a sufficient interest or impairment, and at what stage challenges may be made.

There are also provisions governing the action to be taken when a project is likely to have significant effects on the environment in another Member State.

The current proposal

4.4 The Commission says that, although the content of the legislation has not changed significantly over the years, there have been considerable changes in the policy, legal and technical context, and that a number of shortcomings have been identified in the Directive. It also says that, whilst all Member States have fully complied with it, the number of projects subject to assessment and the standard of assessment varies, and should be harmonised.

4.5 It has therefore proposed a number of changes, which it says seek:

  • to correct perceived shortcomings in the existing process by amending the procedure for determining whether projects should be subject to a full assessment, in order to focus the need for environmental impact assessment on a smaller number of projects where it is clear that there are significant environmental effects; improving the quality of the assessments; and ensuring that the Directive is applied consistently between Member States and in relation to other EU legislation, notably the Strategic Environmental Assessment Directive;
  • to reflect ongoing environmental and socio-economic priorities by streamlining the process and reducing burdens on business; and
  • to amend the text to incorporate relevant European case law.

4.6 The proposal also introduces a number of detailed changes to the existing Directive. Thus:

  • in order to establish whether an assessment is required for an Annex II project, the developer would be required to provide detailed information about the project, including that specified in a new Annex IIA;
  • where a project is to be subject to an assessment, mandatory "scoping" would be introduced, under which the developer would be required to prepare an environmental report, the contents of which would be determined by the competent authority, and would have to include a wider range of issues in order to assess the proposed development, including a risk assessment of its vulnerability to man-made and natural disasters; and
  • mandatory assessment and reporting would apply, not just to the proposed development as at present, but to reasonable alternatives; there would be a new requirement to monitor for an indeterminate period significant adverse effects identified through the assessment process; and accredited experts would have to be used by a developer to prepare the environmental report, and by local authorities to verify it.

4.7 In addition:

  • a one-stop consenting process would be introduced for projects which require environmental assessments under more than one EU Directive;
  • time-frames would be established for the completion of the various stages of the environmental impact assessment (including at least 30 days for consulting the public about the environmental report provided by the developer); and
  • Delegated Acts, would be introduced, enabling the Commission to amend some aspects of the Directive without consultation and agreement with European States (for example, increasing the information to be provided at the screening stage).

The Government's view

4.8 In his Explanatory Memorandum[17] of 6 December 2012, the Secretary of State for Communities and Local Government (Rt Hon Eric Pickles) says the Government supports the Commission's intention to streamline the environmental impact assessment process, and to introduce provisions which will reduce the number of environmental assessments which are undertaken unnecessarily. He believes it is important that the focus should be on those projects which have the most significant impacts on the environment and human health, but cautions that the proposal needs to achieve an appropriate balance between protecting the environment and imposing burdens on developers and the competent national authorities, the Government's initial view being that it does not achieve this.

4.9 He also points out that the EU and Member States share competence in the field covered by the Directive, and that, although the Commission states that the proposal lays down general objectives and obligations, whilst leaving sufficient flexibility to Member States regarding the choice of measures for compliance and their detailed implementation, the UK considers that some of the changes should be left to Member State discretion. It also believes that the Commission should be held to account over its wider commitment to exempt micro-business from EU legislation (unless their inclusion can be explicitly justified), and it will therefore particularly consider in the Impact Assessment which it plans to conduct whether opportunities have been missed to avoid disproportionate impacts on Small and Medium Enterprises.

4.10 The Minister has the following more specific comments on individual aspects of the proposal:

  • although the Commission argues that the new screening process to assess whether an impact assessment is needed would not apply to small-scale projects (including those currently with Permitted Development rights), the proposal as drafted would require the screening of all projects regardless of their size: this has implications for the present screening arrangements in the United Kingdom, which differ according to the consenting regimes, with (for example) screening taking place for all major infrastructure projects and for offshore oil and gas projects, but applying in the case of smaller projects only to those above a specific threshold or situated in sensitive areas (such as National Parks and Areas of Outstanding Natural Beauty);
  • the amendments to the screening process for Annex II projects will require more detailed information about the impact to be provided up front, including the identification of mitigation measures:
  • the introduction of a one-stop shop for projects which require consent under more than one Directive may have significant implications for the way the consenting regimes operate in the United Kingdom: Northern Ireland still has a central planning system, whereas under the arrangements elsewhere, local authorities assess the environmental implications of a development as part of their consideration of whether the use of land is suitable for the proposed project, whilst the Environment Agency considers operational matters such as the control of emissions under their environmental permitting regime;
  • whilst the increase in the scope of issues to be considered in the environmental assessment may reflect some which were not included in the original Directive, it also has the potential to include areas where an environmental assessment would not be expected: also, it includes areas where agreement has not been reached on other Directives (for example, the draft Soil Framework Directive), and it misses the opportunity to clarify other issues, such as the meaning of material assets, which have been the subject of legal challenges;
  • enabling the Commission through Delegated Acts to amend the criteria used to specify the information to be provided for in the screening process, the criteria to be used for considering the likely environmental impacts, and the contents of the environmental report without consultation with Member States, would entail an element of competency creep, which is something the UK would want to resist;
  • the introduction of mandatory scoping would significantly increase the workload of competent authorities and introduce delays: in addition, the need to consider all reasonable alternatives relevant to the project (rather than, as at present, those alternatives considered by the developer) which would be a significant additional burden for developers and competent authorities;
  • whilst the requirement to use accredited and technically competent experts for the preparation of the environmental report and for verification by competent authorities is intended to improve the quality of the environmental assessment, it would add significant costs to the process (and the Directive already requires Member States to consult authorities with 'specific environmental responsibilities' who are qualified to comment on any aspect of the environmental information which they consider inaccurate or incomplete or of insufficient quality);
  • the establishment of timeframes for the completion of the screening, scoping and consultation stages of the assessment process present potential difficulties for the UK, as it has a number of consenting regimes, and the proposed 30-day limit is significantly longer than allowed for in some of the United Kingdom environmental impact assessment regimes, as, for example, under the Town and Country Planning regime in England: the proposal thus has the potential to lengthen the amount of time taken to complete the environmental impact assessment process, and, whilst there is normally nothing to prevent a Member State setting more stringent requirements than those in a Directive, the Government would want to seek clarification that setting shorter timescales would not put it in breach of the Directive or at risk of legal challenge;
  • on the other hand, the proposal has the potential to shorten the deadlines for larger projects, such as those which fall within the consenting regime for major energy infrastructure, and the Minister comments that it is unclear how this would make the process more efficient; and
  • whilst there is a new requirement for the monitoring of significant adverse effects, it is not clear what it would achieve in practice without a mechanism for reviewing the consent, and it would place another burden on developers as resources would be required to carry out monitoring.

4.11 The Minister also makes a number of comments on the Commission's Impact Assessment. He notes that this states that the chosen option would have high environmental and wider socio-economic benefits, but be likely to increase costs: in particular, it suggests that the costs for the mandatory assessment of alternatives and for monitoring would range between 5% and 10% of the baseline costs for developers, whilst those for adding the environmental issues to be assessed may range between 5% and 25% of those costs. However, the Commission believes that the benefits have the potential to outweigh administrative costs, and suggests overall that the amendments would lead to moderate savings based on a reduction in the number of environmental impact assessments being carried out.

4.12 The Minister says that the Government's initial examination leads it to believe that the proposals would increase burdens for developers and competent authorities (e.g. local authorities), and that these would relate, not only to actual cost, but also to the length of time taken for consent to be given. It does not therefore think that the burdens would be proportionate, and it also considers that the proposals would raise doubts in the minds of developers, especially those involved with large projects requiring long-term investment planning, about the future of the UK planning system.

4.13 So far as the UK is concerned, the Minister also points out that between 450-700 environmental impact assessments are carried out annually, with some 250-450 being handled through the planning regime in England (as compared with a total number of 500,000 planning applications in England each year — a figure which does not include smaller development granted consent under Permitted Development Rights, which the Government estimates to be that same order). He says that the majority of planning applications are for urban development schemes, and that other consent regimes have their own environmental impact assessment provisions, most notably for major infrastructure which is consented under the Planning Act 2008. However, at present, a combination of thresholds and screening criteria remove the majority of planning applications from the environmental impact assessment regime, and, where screening does take place, the process is normally completed within three weeks, with Commission research having found that an average of 2,745 projects are currently screened in the United Kingdom each year. As drafted, the Commission's proposal would bring all developments under the environmental impact assessment screening process, representing a significant additional burden for developers and competent authorities.

4.14 The Minister says that the Government intends to assess the costs of environmental impact assessment and the implications of the proposal for the UK, and that a full Impact Assessment will be provided. In the meantime, officials in both Scotland and Northern Ireland have drawn our attention to the interest which their respective Committees are likely to take in the proposal, and it would therefore be helpful if any such Assessment were to deal with these as well.

Conclusion

4.15 It is evident from the very full Explanatory Memorandum and initial Impact Assessment which the Minister has provided that this proposal gives rise to a number of concerns about both the extent to which its scope would be extended to small-scale projects, and the extent to which the additional information which would have to be provided in order to screen projects and carry out an assessment on them would place undue burdens on both developers and consenting authorities. It is also clear that there are significant differences between the view taken by the Commission on these issues and that of the Government.

4.16 We also note the Government's view that some of the proposed changes stray into areas which should be left to the discretion of Member States. We are therefore glad to see that it intends to provide, in due course, a full Impact Assessment, and although it so happens that the changes proposed seem to us to give rise more to issues of proportionality rather than of subsidiarity, we would be glad if the Assessment could explicitly address these two aspects. In the meantime, we think it right to draw the proposal to the attention of the House, and we propose to hold it under scrutiny, pending further information and receipt of the Impact Assessment.

4.17 However, we also note that, although the Explanatory Memorandum was deposited on 1 November (and should thus have been submitted to us by 14 November), it was not in fact signed by the Minister until 6 December, some three weeks later. This is a matter of more than usual concern, since, had it been necessary for the House to submit a Reasoned Opinion to the Presidents of the European Parliament, Council and Commission under Article 6 of Protocol No. 2 on the Application of the Principles of Subsidiarity and Proportionality, the late submission of the Explanatory Memorandum would have made it difficult, if not impossible, to meet the 24 December deadline for doing this, given the need for us to consider such an Opinion and to seek the approval of the House prior to it adjourning for the Christmas recess on 20 December. In the event, we do not consider that such an Opinion is necessary, but this does not detract from the fact that the late submission of the Explanatory Memorandum could have denied the House the opportunity to exercise one of the important rights conferred upon it by the Treaty of Lisbon, and we would like the Minister to explain why the Memorandum could not have been supplied earlier.




16   OJ No. L 26, 28.1.12, p.1. Back

17   The Minister has drawn attention to this Explanatory Memorandum in a written statement on 6 December 2012 (HC Deb, 6 December 2012 cols. 71-72WS), in which he encourages Members to examine this proposal carefully. Back


 
previous page contents next page


© Parliamentary copyright 2012
Prepared 2 January 2013