1. Amended EIA Directive Transitioning English Planning, DCO and more Regimes
Josh Fothergill
IEMA – Policy Lead
12 January 2017

3. Outline EWR Introduction EIA Directive Amendments
Current EIA Consultations
What? By when? How to Respond
(Some of) The Detail
Refreshments
Discussion 1 – Consultation Feedback
Discussion 2 – Practical Issues
Summary

4. EWR Project Introduction

5. EIA Directive Context

6. Revisions to EU EIA Directive (1985 – 2014)
Time-limit for transposition
85/337/EEC
3 July 1988
97/11/EC – Amendment
14 March 1999
2003/35/EC – Amendment
25 June 2005
2009/31/EC – Amendment
25 June 2011
2011/92/EU
Consolidation
No transposition required
2014/52/EU – Amendment
16 May 2017

7. Overview: Revising the EIA Directive
EC proposals for
revising EIA
Directive
EIA Directive
amendment
2014/52/EU
EC Public Consultation
2010
2012
2014
2013
2009
2011
2016
2017
EU EIA
Effectiveness
Review
New
EIA Directive
Proposal Revised by EU Parliament & Council
Member State
transposition
[by May 2017]
2011/92/EU

8. 2014/52/EU European Commission Goals
Core Rule:
Maintain the level of environmental protection established within the existing EIA Directive
Three Aims to drive Effective EIA:
Harmonisation between Member States
Efficiency to streamline multiple EU assessments & reduce burdens
Quality moving away from a purely procedural focus in EIA laws
Also: Improve consideration of Climate Change and Biodiversity in EIA

9. 2014/52/EU Significant Scale of Change

10. Challenges
Balancing the EC’s goals: Harmonisation, Efficiency, Quality
Lack of definitions in amended Directive (experts, health, reasonable alternatives) = Risk to Harmonisation
Changing words in legislation will not easily erode established culture in EIA practices = Risk to Efficiency
Adverse approach to amendment process by some Member States (monitoring, ecosystem services) = Risk to Quality

11. Transposition – EU Progress
EU Member States
Complete: Bulgaria, (Poland), Luxembourg, Cyprus, Slovenia
2017: UK, Sweden, Netherlands, (Poland)

12. Transposition - UK Progress
UK EIA Consultations
Scotland: Consulted to 31 Oct’16 on 8 of 11 EIA regimes
Wales: Consulted up to 11 Nov’16 on T&CP EIA (Wales) regime
England: Consulting on TCP & DCO closing 1st Feb
Northern Ireland: Consulting on Planning closing 9th Feb
Defra & others: Consulting on 6 EIA Regimes closing 31st Jan
Regulations will come into force 16 May 2017

13. Main Changes via 2014/52/EU A definition of EIA ES Content
Joint / Co-ordinated HD
Examination of ES and sufficient expertise in CA
Time limits
Decision Notice
Screening Revisions
Monitoring
New / revised topics
Penalties & Conflict Interest
Scoping Revisions
Transitional arrangements
Competent Experts

14. Ice Breaker My biggest concern is…

15. Completed UK EIA Consultations

16. Scotland closed 31 October 2016
Publish Consultation Analysis Report by January 2017.
Amend Regulations for Scottish EIA Regimes:
Planning;
Energy;
Marine Licensing;
Trunk Roads;
Transport & Works Projects;
Agriculture;
Land Drainage; and
Forestry
Publish Business Regulatory Impact Assessment
Regulations will come into effect on 16 May 2017.

17. Wales completed 11 November 2016 E
Proposed changes to how Environmental Impact Assessment applies to Town and Country Planning
20 page consultation document
No draft Regulations
Responses by 11/11/2016

18. Current UK EIA consultations

19. EIA Consultations 3x On-going, 2x Completed
On-going Consultations:
2014/52/EU new direction for a procedurally focussed Directive, 2014 brings Significant focus on Quality in EIA: /92/EU = No references to quality in pre-amble
- 2014/52/EU = 5 references to quality in pre-amble

20. Covers EIA for Planning Permission in England and DCO Documents:
Consultation Document
Draft 2017 T&CP (England) (EIA) Regulations
Draft 2017 The Infrastructure Planning (EIA) Regulations
Open until Wednesday 1st February (7 weeks)
9 Consultation Questions
Survey Monkey online response form
2014/52/EU new direction for a procedurally focussed Directive, 2014 brings Significant focus on Quality in EIA: /92/EU = No references to quality in pre-amble
- 2014/52/EU = 5 references to quality in pre-amble

21. Consultation Document No Draft Regulations
Open until Tuesday 31st January (nearly 7 weeks)
18 Consultation Questions
Dedicated online response form via consultation webpage
2014/52/EU new direction for a procedurally focussed Directive, 2014 brings Significant focus on Quality in EIA: /92/EU = No references to quality in pre-amble
- 2014/52/EU = 5 references to quality in pre-amble

22. Covers EIA for Planning in Northern Ireland Documents:
Consultation Document, which includes
Draft 2017 Planning (EIA) (Northern Ireland) Regulations
Open until Thursday 9th February (8 weeks)
14 Consultation Questions
Copy of Response Form included in consultation document
2014/52/EU new direction for a procedurally focussed Directive, 2014 brings Significant focus on Quality in EIA: /92/EU = No references to quality in pre-amble
- 2014/52/EU = 5 references to quality in pre-amble

23. Transposing 2014/52/EU into England & UK wide EIA Regimes
Changes in two main formats:
Areas with little discretion
Areas where Member States have some flexibility
Also: Opportunity for wider changes and improvements to both Regulations and Practice
2014/52/EU new direction for a procedurally focussed Directive, 2014 brings Significant focus on Quality in EIA: /92/EU = No references to quality in pre-amble
- 2014/52/EU = 5 references to quality in pre-amble

24. Areas of little discretion
Extending the specified content submitted alongside a screening request
New topics / changes to terminology
Human Beings > Population & Human Health
Climatic Factors > Climate Change
Flora & Fauna > Biodiversity
Additions to existing Schedule 3 (screening criteria) and 4 (ES content)
Approach: Generally using ‘copy out’, plus DCLG intend to update guidance
2014/52/EU new direction for a procedurally focussed Directive, 2014 brings Significant focus on Quality in EIA: /92/EU = No references to quality in pre-amble
- 2014/52/EU = 5 references to quality in pre-amble

25. Areas with more potential for flexibility
Co-ordinated / Joint approach to HRA (and possibly SEA, IED, WFD, etc)
Scoping (mandatory / voluntary)
Competent Experts & Sufficient Expertise
Time limits (screening and consultation)
Format of consultation (electronic / non-electronic)
Penalties and Conflict of interests
2014/52/EU new direction for a procedurally focussed Directive, 2014 brings Significant focus on Quality in EIA: /92/EU = No references to quality in pre-amble
- 2014/52/EU = 5 references to quality in pre-amble

26. Screening (Article 4)
Developer - Enhanced screening request submission (Annex 2A report) is embedded in Regulation 6 draft T&CP Regs.
Screening Opinion
Increased emphasis on measures to avoid / prevent effects at screening stage.
Relevant results of any preliminary assessments.
Up to 90 days for determination – LOTS OF VARIATION…
C/A to publish determination with reasons.

27. Scoping (Article 5-2)
Option to make scoping mandatory – Not UK approach
Scoping remains:
Where requested by developer, a LPA will issue opinion on scope and level of detail for ES.
LPA consult developer and authorities before it gives opinion.
New element:
Environmental Statement must be “based on” scoping opinion where provided.

28. ES = ‘based on’ Scoping Opinion
Concerns raised as risk to iterative and proportionate EIA.
DCLG and NI consultations attempt to address in draft Regs:
“based on the most recent scoping opinion or direction issued (so far as the development remains materially the same as the proposed development which was subject to that opinion or direction)”
What does this mean?
Can a 2nd / 3rd scoping opinion be requested?
What % of development must remain ‘materially the same’ AND who makes this judgement?

29. Criteria for Assessment (Article 3)
Identify significant adverse effects including new / reframed topics:
Population and Human Health [was: human beings];
Biodiversity [was flora and fauna];
Climate [was climatic factors];
Land;
Risks of major accidents and natural disasters.

30. Environmental Statement / EIA Report (Article 5)
Information to be provided:
Likely significant effects.
Measures to, prevent …and if possible, offset likely significant adverse effects.
‘Reasonable’ alternatives .
Integrated consideration of other relevant assessments.

31. ES Quality (Article 5-3a)
Competent expert
EIA Report prepared by competent experts.

32. EIA Experts – 2014/52/EU
Pre-amble (Para 33) Experts involved in the preparation of environmental impact assessment reports should be qualified and competent.
Article 5(3).In order to ensure the completeness and quality of the environmental impact assessment report:
(a) the developer shall ensure that the environmental impact assessment report is prepared by competent experts;

33. ES Examination (Article 1 & 5-3b)
Sufficient Expertise
LPA must have access to sufficient expertise to examine the ES’s for completeness and quality.
Use the results of examination to come to it’s own reasoned conclusions on project’s significant effects.

34. Sufficient Expertise – 2014/52/EU
Pre-amble (Para 33) 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.
Article 5(3).In order to ensure the completeness and quality of the environmental impact assessment report:
(b) the competent authority shall ensure that it has, or has access as necessary to, sufficient expertise to examine the environmental impact assessment report;

35. Variation in Approaches Competent Experts [Article 5(3)(a)]
Between Member States
Poland: Focus on EIA Co-ordinator + link with a degree of broad relevance to IA
Lithuania: Broader approach including: topic leads, not linked to having a degree
Within UK
Scotland and Defra (et al): copy out of Article 5(3) = developer led
DCLG, Wales and Northern Ireland: Competent Experts to be assessed by competent authority = e.g. LPA led
DCLG, Defra (et al) and Wales: Competent Expert = Sufficient Expertise
IEMA request since 2014: Consistent across all EIA Regimes…

36. IEMA Position A Competent Expert in Co-ordinating UK EIA would be…
Standard Practice: Individual that can demonstrate all of following:
Full membership relevant prof. body / Registered EIA Practitioner status;
Experience of leading substantive components of EIA process;
Evidence of on-going CPD relevant to coverage of Schedule 4 (Annex IV)
Good Practice: Standard + working in EIA Quality Mark registrant
Best Practice: Good + individual has Principal EIA Practitioner status

37. Consistent Approach to CA Sufficient Expertise [Article 5(3)(b)]
All regimes promoting the same line:
“At present most decision makers either have persons with sufficient expertise within their (planning or wider) teams to examine the ES, or could readily access such expertise”
Does this Government perspective align with your experience?

38. Decision Notices & Public Info (Article 8a & 9)
Up-to-date reasoned conclusion.
Any environmental condition attached to decision, a description of any features of project and/or measures to avoid, prevent or reduce and, if possible offset significant adverse effects…as well where appropriate, monitoring measures.
Summary of consultations.

39. Monitoring (Article 8a-1b&4)
Monitoring what?
Just significant adverse effects on environment?
Also including implementation and success of measures to avoid, prevent, reduce, offset significant adverse effects?
Proportionality – nature, location, size, significance.
Use of existing monitoring requirements to avoid duplication.

40. Member views on transposition challenges & opportunities

41. “Much of this is already good practice”
“Avoid undue burden”

42. “An opportunity to EIA streamline in practice”
“How will x,y,z… work in practice?”

43. Changes simply apply existing Good Practice…
The changing requirements can raise standards…
How do we avoid:
Eroding existing environmental protection?
Bumps in the road?
Missing wider opportunities for improvement?

44. Avoiding undue Burden
The changing requirements will add / extend tasks…
How do we enable this efficiently?
Local Authority - Process changes (screen, scope, examination)
Developer - Topics (CC & Health) and Monitoring

45. Opportunity to… Streamline EIA
Amendments provide context for a change in EIA…
Recognise EIA regulations acting alone could backfire
Co-ordinated / Joint EIA and other assessments
EIA Report ‘based on’ scoping opinion
Limiting assessment only to significant effects
But… Is there a need for Govt support capacity building?

46. Develop a culture of proportionate assessment across the EIA community

47. How will xxxxxxx work in practice?
Competent Experts
Screening
Scoping
Monitoring
We’d like to see: draft EIA Regulations with the consultation

48. Guidance will be crucial Provides further impetus to continue to work together

49. Q&A
Josh Fothergill E:
@jfothergilliema

50. Refreshments

51. Discussion 1 Feedback on Consultations, e.g. Screening
Co-ordinated HRA process
Developments triggering Multiple EIAs
Competent Experts
Penalties
Specific issues: Afforestation Thresholds, Marine works public participation, Agri Regs definitions, etc

52. Discussion 2 Implications for EIA Practice, e.g.
Screening: more info and use of mitigation
New Topics (Health, Climate, Disaster risk)
ES ‘based on’ Scoping Opinion
Schedule 4 additions: Reasonable Alternatives
CA drawing own reasoned conclusions on significant environmental effects
Monitoring
Inconsistencies across UK EIA regimes

53. Summary & IEMA 2017 IA Plans

54. Impact Assessment Network

55. Thank You
Josh Fothergill E:

56. BREXIT & EIA in the UK EIA basis in international law / finance:
Rio Declaration on Environment & Development
The Espoo Convention
The Aarhus Convention
Equator Principles
UK EIA Regulations presumably sit within the PM’s “Great Repeal Bill”