During our discussions on my previous blog, where I was privileged to learn from a lot of people who, unlike me, actually know stuff about planning law, I realised that I, and many others, were not too sure about the difference between an Environmental Impact Statement (EIS) and an Environmental Impact Assessment (EIA).
Many people in Ireland, including a number of State and semi-State bodies, think of an EIS as the final document that is produced from the EIA process, and the Government, more specifically the DCENR, has done little to disabuse this notion. I have learnt that the EIS is the impact statement that must accompany the application for planning permission, whereas the EIA is the process that must be carried out by the Planning Authority (or some other designated public authority) before that planning permission can be legally granted.
When I learnt that information, my next question was what is the difference between the two, both substantively and methodologically? Even those who know something about planning law were not too sure on these details. I decided to investigate the matter myself.
In trying to answer these questions I decided to look ahead and consider the latest EIA Directive (2014/52/EU) rather than looking back at the currently transposed Directive (2011/92/EU). Although Ireland does not have to transpose the 2014 Directive until 2017 (and they will inevitably be late in doing that) the 2014 Directive goes some way to explaining this conundrum. The current muddling between an EIS and the EIA is largely as a result of the faulty transposing of the 2011 EIA Directive. The 2014 Directive describes an identical procedure (from a structural point of view) as the 2011 Directive, just with more detail and definition.
As the 2014 Directive does make things clearer when considering the difference between an EIS and EIA, we can only hope that the Irish lawmakers get it right for a change, and sooner rather than later.
Are there any definitions?
The previous EIA Directive (2011/92/EU) did not help matters as neither an EIS or an EIA was defined in the definitions section (Article 1). This was also true of its predecessor, Council Directive 85/337/EEC of 27 June 1985. They all speak about an environmental impact assessment without ever defining what is meant by that.
The latest EIA Directive 2014/52/EU, which seeks to amend the previous Directive rather than replace it, adds another definition to the mix. Its Article 1 says :
“Directive 2011/92/EU is amended as follows:
(1) Article 1 is amended as follows:
(a) in paragraph 2, the following definition is added:
‘(g) “environmental impact assessment” means a process consisting of:
(i) the preparation of an environmental impact assessment report by the developer, as referred to in Article 5(1) and (2);
(ii) the carrying out of consultations as referred to in Article 6 and, where relevant, Article 7;
(iii) the examination by the competent authority of the information presented in the environmental impact assessment report and any supplementary information provided, where necessary, by the developer in accordance with Article 5(3), and any relevant information received through the consultations under Articles 6 and 7;
(iv) the reasoned conclusion by the competent authority on the significant effects of the project on the environment, taking into account the results of the examination referred to in point (iii) and, where appropriate, its own supplementary examination; and
(v) the integration of the competent authority’s reasoned conclusion into any of the decisions referred to in Article 8a.’;
What this does clarify is that the EIS (now called an ‘environmental impact assessment report” in the 2014 Directive) must be lodged by the developer with the application for planning permission. A competent authority (in this country a Council and/or An Bord Pleanala (ABP)) must then carry out the process called an “environmental impact assessment” which will consist of an examination of the developer’s EIS, along with the following information:
a) additional information provided by the developer in terms of Article 5(3);
b) any relevant information as a result of (public) consultations under Articles 6 and 7;
c) where appropriate, its own supplementary examination.
Article 3 of the previous (2011) Directive said that:
“The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 12, the direct and indirect effects of a project on the following factors:
(a) human beings, fauna and flora;
(b) soil, water, air, climate and the landscape;
(c) material assets and the cultural heritage;
(d) the interaction between the factors referred to in points (a), (b) and (c).”
The 2014 Directive has replaced that with a bit more detail:
“Article 3 is replaced by the following:
1. The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:
a) population and human health;
b) biodiversity, with particular attention to species and habitats protected under Directive 92/43/EEC and Directive 2009/147/EC;
c) land, soil, water, air and climate;
d) material assets, cultural heritage and the landscape;
e) the interaction between the factors referred to in points (a) to (d).
2. The effects referred to in paragraph 1 on the factors set out therein shall include the expected effects deriving from the vulnerability of the project to risks of major accidents and/or disasters that are relevant to the project concerned.’ “
As Article 3 of this 2014 Directive refers to the “environmental impact assessment” (“the EIA”) as opposed to the “environmental impact assessment report” (“the EIS”), this must mean that Article 3 is describing the process that must be carried out by the Planning Authority after receipt of the EIS with the planning application from the developer but before it makes a decision whether to grant or refuse planning permission, as clearly this decision must be informed by the EIA process.
Paragraphs 30-33 in the Preamble to the 2014 Directive would seem to confirm this interpretation of Article 3, namely that the “environmental impact assessment report” is what we used to call the EIS (prepared by the developer) and the “environment impact assessment” is the process carried out by the Planning Authority once they receive the EIS with the planning application, along with the extra information from the developer, the public, and as a result of their own investigation:
“(30) In order to improve the quality of an environmental impact assessment, to simplify the procedures and to streamline the decision-making process, the competent authority should, where requested by the developer, issue an opinion on the scope and level of detail of the environmental information to be submitted in the form of an environmental impact assessment report (‘scoping’).
(31) The environmental impact assessment report to be provided by the developer for a project should include a description of reasonable alternatives studied by the developer which are relevant to that project, including, as appropriate, an outline of the likely evolution of the current state of the environment without implementation of the project (baseline scenario), as a means of improving the quality of the environmental impact assessment process and of allowing environmental considerations to be integrated at an early stage in the project’s design.
(32) Data and information included by the developer in the environmental impact assessment report, in accordance with Annex IV to Directive 2011/92/EU, should be complete and of sufficiently high quality. With a view to avoiding duplication of assessments, the results of other assessments under Union legislation, such as Directive 2001/42/EC of the European Parliament and the Council (15) or Directive 2009/71/Euratom, or national legislation should, where relevant and available, be taken into account.
(33) Experts involved in the preparation of environmental impact assessment reports should be qualified and competent. 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.”
So now that we know what the Planning Authority must consider when carrying out a proper EIA, the only question left is how does this differ from the content of the EIS (now called the “environmental impact assessment report”) and what is the methodology involved in compiling this EIS?
Article 5(3) of the previous Directive dealt with this aspect. Once again, this has been replaced by the 2014 Directive:
“(5) in Article 5, paragraphs 1 to 3 are replaced by the following:
‘1. Where an environmental impact assessment is required, the developer shall prepare and submit an environmental impact assessment report. The information to be provided by the developer shall include at least:
a) a description of the project comprising information on the site, design, size and other relevant features of the project;
b) a description of the likely significant effects of the project on the environment;
c) a description of the features of the project and/or measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment;
d) a description of the reasonable alternatives studied by the developer, which are relevant to the project and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the project on the environment;
e) a non-technical summary of the information referred to in points (a) to (d); and
f) any additional information specified in Annex IV relevant to the specific characteristics of a particular project or type of project and to the environmental features likely to be affected.
Where an opinion is issued pursuant to paragraph 2, the environmental impact assessment report shall be based on that opinion, and include the information that may reasonably be required for reaching a reasoned conclusion on the significant effects of the project on the environment, taking into account current knowledge and methods of assessment. The developer shall, with a view to avoiding duplication of assessments, take into account the available results of other relevant assessments under Union or national legislation, in preparing the environmental impact assessment report.
2. Where requested by the developer, the competent authority, taking into account the information provided by the developer in particular on the specific characteristics of the project, including its location and technical capacity, and its likely impact on the environment, shall issue an opinion on the scope and level of detail of the information to be included by the developer in the environmental impact assessment report in accordance with paragraph 1 of this Article. The competent authority shall consult the authorities referred to in Article 6(1) before it gives its opinion.
Member States may also require the competent authorities to give an opinion as referred to in the first subparagraph, irrespective of whether the developer so requests.
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;
b) the competent authority shall ensure that it has, or has access as necessary to, sufficient expertise to examine the environmental impact assessment report; and
c) where necessary, the competent authority shall seek from the developer supplementary information, in accordance with Annex IV, which is directly relevant to reaching the reasoned conclusion on the significant effects of the project on the environment.’.”
Mention is made of Annexure IV on a number of occasions, and the Directive makes it clear that the Planning Authority, in conducting the EIA, can ask for information specified in the Annexure that is not originally provided by the developer in their EIS, but that the Planning Authority needs in order to reach a “reasoned conclusion on the significant effects of the project on the environment”.
Annexure IV of the 2014 Directive is instructive in detailing what needs to be included in the EIS (now called the EIA Report, not to be confused with the EIA process!):
INFORMATION REFERRED TO IN ARTICLE 5(1)
(INFORMATION FOR THE ENVIRONMENTAL IMPACT ASSESSMENT REPORT)
1. Description of the project, including in particular:
a) a description of the location of the project;
b) a description of the physical characteristics of the whole project, including, where relevant, requisite demolition works, and the land-use requirements during the construction and operational phases;
c) a description of the main characteristics of the operational phase of the project (in particular any production process), for instance, energy demand and energy used, nature and quantity of the materials and natural resources (including water, land, soil and biodiversity) used;
d) an estimate, by type and quantity, of expected residues and emissions (such as water, air, soil and subsoil pollution, noise, vibration, light, heat, radiation) and quantities and types of waste produced during the construction and operation phases.
2. A description of the reasonable alternatives (for example in terms of project design, technology, location, size and scale) studied by the developer, which are relevant to the proposed project and its specific characteristics, and an indication of the main reasons for selecting the chosen option, including a comparison of the environmental effects.
3. A description of the relevant aspects of the current state of the environment (baseline scenario) and an outline of the likely evolution thereof without implementation of the project as far as natural changes from the baseline scenario can be assessed with reasonable effort on the basis of the availability of environmental information and scientific knowledge.
4. A description of the factors specified in Article 3(1) likely to be significantly affected by the project: population, human health, biodiversity (for example fauna and flora), land (for example land take), soil (for example organic matter, erosion, compaction, sealing), water (for example hydromorphological changes, quantity and quality), air, climate (for example greenhouse gas emissions, impacts relevant to adaptation), material assets, cultural heritage, including architectural and archaeological aspects, and landscape.
5. A description of the likely significant effects of the project on the environment resulting from, inter alia:
a) the construction and existence of the project, including, where relevant, demolition works;
b) the use of natural resources, in particular land, soil, water and biodiversity, considering as far as possible the sustainable availability of these resources;
c) the emission of pollutants, noise, vibration, light, heat and radiation, the creation of nuisances, and the disposal and recovery of waste;
d) the risks to human health, cultural heritage or the environment (for example due to accidents or disasters);
e) the cumulation of effects with other existing and/or approved projects, taking into account any existing environmental problems relating to areas of particular environmental importance likely to be affected or the use of natural resources;
f) the impact of the project on climate (for example the nature and magnitude of greenhouse gas emissions) and the vulnerability of the project to climate change;
g) the technologies and the substances used.
The description of the likely significant effects on the factors specified in Article 3(1) should cover the direct effects and any indirect, secondary, cumulative, transboundary, short-term, medium-term and long-term, permanent and temporary, positive and negative effects of the project. This description should take into account the environmental protection objectives established at Union or Member State level which are relevant to the project.
6. A description of the forecasting methods or evidence, used to identify and assess the significant effects on the environment, including details of difficulties (for example technical deficiencies or lack of knowledge) encountered compiling the required information and the main uncertainties involved.
7. A description of the measures envisaged to avoid, prevent, reduce or, if possible, offset any identified significant adverse effects on the environment and, where appropriate, of any proposed monitoring arrangements (for example the preparation of a post-project analysis). That description should explain the extent, to which significant adverse effects on the environment are avoided, prevented, reduced or offset, and should cover both the construction and operational phases.
8. A description of the expected significant adverse effects of the project on the environment deriving from the vulnerability of the project to risks of major accidents and/or disasters which are relevant to the project concerned. Relevant information available and obtained through risk assessments pursuant to Union legislation such as Directive 2012/18/EU of the European Parliament and of the Council (1) or Council Directive 2009/71/Euratom (2) or relevant assessments carried out pursuant to national legislation may be used for this purpose provided that the requirements of this Directive are met. Where appropriate, this description should include measures envisaged to prevent or mitigate the significant adverse effects of such events on the environment and details of the preparedness for and proposed response to such emergencies.
9. A non-technical summary of the information provided under points 1 to 8.
10. A reference list detailing the sources used for the descriptions and assessments included in the report.”
The amount and detail of information that needs to be provided in the EIS (“EIA Report”) is very detailed and very comprehensive. Now what needs to happen is that the 2014 Directive must be correctly transposed into Irish law and then, perhaps more importantly, it actually needs to be enforced by our Planning Authorities, rather than paying lip-service to it, which is the current situation.
The Planning Authority, in turn, needs to ensure that the EIS contains all the information it is supposed to contain, in the prescribed detail and quality. It needs to consider that EIS, and any other information as required by Annexure 4, plus the information put forward by the public, plus any information its own investigations have uncovered (most importantly the Inspector’s Report), before reaching a reasoned conclusion on the significant effects of the project on the environment. This entire EIA process must be properly completed before the Planning Authority is in a position to grant or refuse planning permission. What is clear from the Directive is that this cannot just be a box-ticking exercise. The Planning Authority cannot simply accept the EIS at face value. It must objectively assess and examine the EIS, including the sources of the information quoted in that EIS, as well as any other commentary and criticism applied to the EIS by the public and by its own inspectors.
What is also important is that even before the 2014 Directive is transposed into Irish law, an Irish court is entitled to rely on its contents in understanding and interpreting the current Irish law. This means that it can be used in argument before the Irish courts even now.
The 2014 EIA Directive seems to be mostly concerned with resource efficiency, climate change and disaster prevention, which are now better reflected in the assessment process.
Member States are allowed to simplify their different environmental assessment procedures.
Timeframes are introduced for the different stages of environmental assessments: screening decisions (determining whether as EIA is required) should be taken within 90 days (although extensions are possible) and public consultations should last at least 30 days. Members States also need to ensure that final decisions are taken within a “reasonable period of time”.
The grounds for development consent decisions must be clear and more transparent for the public. Member States may also set timeframes for the validity of any reasoned conclusions or opinions issued as part of the EIA procedure.
If projects do entail significant adverse effects on the environment, developers will be obliged to do the necessary to avoid, prevent or reduce such effects.
Member States must transpose the 2014 Directive by 16th May 2017 at the latest. Hopefully we will not need to wait that long or that, at the very least, the Irish courts will consider the 2014 Directive as an aid to interpreting the current Irish legislation, which is confusing to say the least.
Some commentators have criticised the 2014 Directive as a watering-down of the requirements placed on the developer as a result of pressure exerted on the EU Commission by big business interests, including the wind industry. I tend to agree with them but that is a topic for another day. For the purposes of this blog I was trying to understand the difference between an EIS and an EIA, and the 2014 Directive goes some way in clarifying that issue.