The Beginning of the End of Environmental Impact Assessments
The Levelling-Up and Regeneration Bill, published on 11 May 2022, contains substantial changes to the environmental assessment legal framework. These changes are of interest to both the private and public sector, as it affects both Environmental Impact Assessments (EIA) and Strategic Environmental Assessments (SEA).
In this article, we summarise the proposed changes and assess the issues identified.
Changes to the environmental assessment legal framework
The Bill proposes a new system of Environmental Outcomes Reports (EOR) that will replace the environmental assessment regulations in the UK, which were derived from the EU regulations. This is a continuation of the UK’s divorce from EU environmental regulations that started with Brexit, which is confirmed by the Policy Paper ‘Levelling Up and Regeneration: further information’ as the government provided that the new system of EORs will “introduce a clearer and simpler process where relevant plans and projects (including Nationally Significant Infrastructure Projects) are assessed against tangible environmental outcomes set by government, rather than in Brussels.” At least, the Bill’s Explanatory Notes provide that this new system will still retain “the UK’s obligations under the UN Aarhus and Espoo Conventions”.
The change to environmental assessments will affect EIAs and SEAs. The EIA is a tool that helps decision-making authorities to understand the environmental baseline, environmental impacts and mitigation measures of an individual project before the project is granted planning permission. Instead, the SEA is used to gather environmental information and impacts that would be caused by governmental plans and programs before they are issued.
The new system of EORs proposed in the Bill is based on an outcomes-based approach. Clause 116 of the Bill gives the Secretary of State (SoS) the power to determine “outcomes relating to environmental protection” and Clause 117 gives the SoS power to require an EOR for a “proposed relevant consent or a proposed relevant plan.” In other words, the environmental effects of an individual project or governmental plan/program now will be benchmarked against the environmental outcomes determined by the SoS, instead of international environmental standards.
According to the Explanatory Notes, having specific environmental outcomes will “allow decision-makers and local communities to clearly see where a plan or project is meeting these outcomes and what steps are being taken to avoid and mitigate any harm to the environment.”
The core requirements of an EOR are set in Clause 117(4). In summary, the EOR is a written report that assesses: (a) extend which the consent/plan would impact the delivery of the environmental outcomes, (b) steps for carrying out mitigation, remediation or compensation, and (c) proposals how to monitor the impact of the consent/plan on the delivery of a specified environmental outcome, and how to monitor the steps mentioned in (b). According to the Explanatory Notes, these core requirements are based in the reporting stages of the Environmental Impact Assessment Directive (85/337/EEC) (Article 5 and Annex 4) and the Strategic Environmental Assessment Directive (2001/42/EC) (Article 5 and Annex 1).
Clause 127(3) provides that the EOR regulations may “amend, repeal or revoke existing environmental assessment legislation”, which gives the SoS the power to replace the current EIA/SEA regimes.
Finally, there are some safeguards in place, which theoretically should prevent a misuse of the new system of EORs. First, Clause 116(5) provides that the SoS must take into consideration the government’s Environmental Improvement Plan (EIP) (within the meaning of Part 1 of the Environment Act 2021) before making any EOR regulations. Second, Clause 125 provides that the SoS must carry out a consultation before making any EOR regulations. For EOR regulations related to determining specified environmental outcomes or related to the amendment, repeal or revocation environmental assessment legislation, the Sos must consult the public. For EOR regulations related to any other matters, the SoS is only obliged to consult public authorities. Third, Clause 120 regulates on the non-regression and compliance with international obligations, and in particular Clause 120(3) creates a duty on the Secretary of State to ensure that the new system of environmental assessment does not reduce the overall level of environmental protection.
Are there any issues with the current version of the Bill?
While the Bill sets out an interesting system to replace the EIA and SEA, it still has some limitations.
I. Gaps allowing regression in environmental protection
We have concerns regarding the impact of the Bill on the compliance with international environmental obligations.
There is a safeguard in Clause 120(1) providing that the environmental protection should not go down, but the way this clause is worded does not cover international obligations. Clause 120 provides that:
120 Safeguards: non-regression, international obligations and public engagement
(1) The Secretary of State may make EOR regulations only if satisfied that making the regulations will not result in environmental law providing an overall level of environmental protection that is less than that provided by environmental law at the time this Act is passed.
(4) In this section—
“environmental law” means environmental law (within the meaning of Part 1 of the Environment Act 2021), whether or not the environmental law is in force.”
The Environment Act 2021, s.46 defines environmental law as “any legislative provision” that is concerned with environmental protection and is not an excluded matter. As it covers only legislative provisions, then a literal interpretation would only cover national UK law.
It could be argued that Clause 120(2) should fill this gap as it regulates on the compliance with international obligations. However, again the wording of the Clause makes it a very narrow protection. Clause 120(2) provides:
“(2) EOR regulations may not contain provision that is inconsistent with the implementation of the international obligations of the United Kingdom relating to the assessment of the environmental impact of relevant plans and relevant consents.”
As this clause only refers to international obligations related to the “assessment” of environmental impact, then it is restricted only to obligations that regulate the process for environmental impact assessment. Thus, international obligations that regulate on environmental water or air standards would not be covered as these standards are not specifically part of the “assessment” of environmental impacts.
At first sight, the wording of the clauses above seems problematic and might become a loophole that could allow regression in environmental protection.
II. Heavy dependence on the environmental outcomes
At this stage, it is not possible to determine how effective the new system will be as the environmental outcomes have not been created yet.
As Dr Rufus Howard, impact assessment lead at the Institute of Environmental Management and Assessment (IEMA), provided for ENDS report, “If we’re measuring against environmental outcomes, the assessment will be limited to how these environmental outcomes are conceived”.
The government seems to be introducing this new system in order to speed up the environmental assessment procedures. It is well known that George Eustice, SoS for DEFRA, declared that the EIA regime was “clunky, cumbersome and involves a lot of consultants”.
Given this motivation, the main concern is whether the environmental outcomes will set a benchmark lower than the current benchmark set by the environmental legislation. There are some safeguards in place to prevent this, but as provided above we also have concerns regarding these safeguards.
III. Problematic delegation of power to the SoS
Clause 127(3) provides that the EOR regulations from the SoS can amend, repeal, or revoke existing environmental assessment legislation. The Explanatory Notes provide that this is necessary to “ensure that where an Environmental Outcomes Report is prepared, where appropriate, this is capable of meeting the requirements of existing environmental assessment so as to avoid duplication.”
However, there are two issues with this clause. First, the delegation is not only for statutory instruments, but for all environmental legislation including statutes. Considering the importance of the environmental assessment procedures, we believe this delegation of power to revoke statutes is not adequate. Second, this delegation of power seems unnecessary, because the Clause 127(2) already gives the SoS the power to modify, omit and/or disapply the existing environmental assessment regime such that the EOR replaces or is treated as complying with that regime.
IV. Lack of environmental baseline for EORs
It seems that the EOR is being treated like a simplified environmental assessment report. Clause 117(4) provides that an EOR should only include an evaluation of environmental impacts, mitigation measures and monitoring proposals. The Bill has no reference to the elaboration of an environmental baseline before the preparation of the EOR.
One of the initial steps for preparing an EIA is gathering information to elaborate an environmental baseline, which shows the current status of the environment before any development takes place, such as the type and number of species present in the area to be developed. Without a baseline it is not possible to clearly determine what the environmental impacts from the development are.
While it is possible to gather some baseline information from secondary sources, such as scientific literature, it is normally not sufficient as it is unlikely to find comprehensive information for the specific site where the development will take place. In that regard, we do not understand why the Bill does not consider the preparation of an environmental baseline as one of the core requirements of an EOR.
V. Compliance with the EIP is not possible as it has not been published
The EOR regulations must take into consideration the EIP, but the firs EIP has not been published yet.
The Environment Act 2021 requires the government to have an EIP always in place, which will set out the steps needed to improve the natural environment and measures to meet the its targets. The government has adopted the 25 Year Environment Plan, published on January 2018, as the first interim EIP. However, the Environment Act came in force on November 2021, so the provisions of the 25 Year Environment Plan cannot be entirely aligned with the Environment Act 2021.
DEFRA’s Consultation on Environmental Targets provides that the first review of the EIP will be completed by January 2023, which is still far away in time. Considering the importance of the EIP as a safeguard against the misuse of the new system of EORs, we consider that the government should do its best to accelerate the process to complete the first review of the EIP.
The Bill proposes a new system of EORs that will replace the current EIA and SEA. The new system is based on an outcomes-based approach. The SoS is given the power to establish environmental outcomes and to determine which relevant plans or developments require an EOR. After the SoS issues EOR regulations, then the environmental outcomes will become the environmental benchmark that individual projects or governmental plans/programs need to comply with before being approved by the government. The Bill gives the SoS additional powers, including the power to revoke existing environmental assessment legislation. As well, some safeguards were introduced including the duty of the SoS to take into account the EIP, carry out consultations and ensuring the overall level of environmental protection will not be reduced.
However, there are still concerns regarding this new system of EORs. First, there are gaps in Clauses 120(1) and (2) that could allow regression in environmental protection. Second, the new system of EORs is heavily dependent on the environmental outcomes. Third, the delegation of power to the SoS to revoke environmental assessment legislation seems problematic. Fourth, an environmental baseline is not required in an EOR, even though it is an important first step in any environmental assessment. Fifth, while a safeguard is that the EOR regulations should take into consideration the EIP, the first amendment of the EIP has not been published yet.
Author Stefano DAmbrosio-Nunez Solicitor Planning and Environment Team