Thursday, 24 April 2014

Implications of the Revised EIA Directive

Written by Tom Wells
Associate Director, Environmental Planning & Assessment

On 14 April 2014, the Council of the EU approved changes to 2011/92/EU on the assessment of the effects of certain public and private projects on the environment (‘the EIA Directive’). Tom Wells, who heads up CBRE’s Environmental Planning & Assessment team, summarises the stand-out changes.

Competent experts
Under revisions to Article 5(3), EIA reports (the new term for environmental statements) must now be prepared by “competent experts”.  However, a definition is not provided so it will therefore fall on Member States to draw their own conclusions.

Screening – is EIA required?
Developers will need to submit a screening report that is compliant with the newly introduced Annex IIA. This requires more detailed consideration of the likely environmental effects of a scheme, with some likening it to a mini-EIA.

Competent authorities will need to provide an enhanced explanation of their screening decisions stating which developer-proposed design and mitigation measures must be included as part of the scheme for it  not to be considered as being ‘EIA development’.

Scoping – what needs to be considered?
If developers request a scoping opinion from the competent authority, the EIA Report will be required to be based on the response. This raises questions over the timing of such a submission as making it too early could risk the scope being extended beyond what’s reasonably required to assess significant environmental effects, either as a result of risk-averse or poorly considered responses. This is of course if a formal submission is made at all!

‘New’, and amended, topics
New topics include: human health, land, and biodiversity, as well as consideration of vulnerability to accidents and disasters. Amended topics include: resource efficiency, climate change and cumulative effects, which will be limited to existing and/or approved projects.

The changes address what is arguably the biggest flaw in the existing regime: the absence of mandatory monitoring for significant adverse effects. This will arguably provide substantial new data on the efficacy of EIA, ensuring future practice is driven by real world feedback.

Interactions with other EU legislation
A key aim of the revision is to improve how EIA interacts with other assessments required by EU legislation (e.g. those required under the Water Framework Directive and Habitats Directive). The wording of Article 2 is weak, however, requiring only a member state to “endeavour to coordinate assessments”.

Member States have up to three years to transpose the changes into domestic law. Even then, many projects will continue to be assessed under the existing Directive because the transitional rules allow any project scoped before transposition to be exempt from the new requirements when the application is submitted.

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