Which way forward for EIA
Environmental impact assessment has been a feature on the UK development landscape for almost twenty years. As EIA turns twenty, Erin Gill asks if it is coming of age or losing its way, as large-scale projects such as Crossrail and the London Gateway port project are scrutinised
Environmental impact assessment (EIA) as a legal requirement has been with us for almost twenty years. Although the concept dates back to the 1960s it wasn’t until the UK implemented the 1985 EU Directive on environmental impact assessment in 1988 that EIA became a regular and unavoidable feature on the landscape. As the 1990s progressed the EIA’s remit gradually expanded until, in 1999, a substantial widening took place with UK implementation of the revised EU EIA directive. Suddenly, many more development projects were considered worthy of assessment.
Today, EIA is undertaken annually on more than double the number of developments than was the case in the early 1990s. In 2005, 667 ESs were completed, compared to 322 ten years earlier (see chart below)1. Are too many EIAs being undertaken these days, or is the number of EIAs not the main issue facing the sector? As EIA turns twenty, is it coming of age or losing its way?
Number crunching
Data collected by the Department for Communities and Local Government (DCLG) confirm that the number of environmental statements (ESs) being produced annually shows no sign of dropping off. Although fewer ESs were produced in 2003 and 2004 compared with preceding years – 583 in 2003 compared to 674 in 2002 – this dip was short lived. During 2005, the number of ESs submitted almost hit the record achieved in 2002.
As has always been the case, the vast majority of ESs are prepared for scrutiny under the planning system. In 2005, 555 or about 82% of the 667 ESs completed went through planning, with only 110 ESs, or 18%, subject to appraisal under one of the twelve other consenting regimes that deal with EIA.
In 2005, there were 80 more ESs submitted under the planning system than in the previous year. Two other sectors saw noticeable increases in ES numbers: land drainage, for which there were 17 ESs in 2005 compared to just three in 2004; and offshore wind, for which there were five ESs, four more than in 2004.
But what do these numbers mean? Are local authorities demanding EIAs be undertaken for many more types of development than was the case just a few years ago? The answer would seem to be no. There hasn’t been a single, sizeable jump in ES numbers since 2000, when the revised EU directive brought a much wider range of development under the EIA regime. The main factor behind current high EIA rates appears to be the strength of the private sector development industry and to a lesser extent, development activity within the transport infrastructure and energy sectors.
The government’s “growth agenda” is having a direct effect on ES numbers, according to Alan Bond, senior lecturer in environmental management at University of East Anglia (UEA). The big consultancies agree. David Cowan of environmental consultancy RPS cites mixed-use urban and urban fringe development as a key factor in the current strength of the EIA market. As an example, Simon Hewitt of Environmental Resources Management (ERM) points out that ERM recently opened an office in Swansea largely in response to the volume of urban regeneration work planned for the south Wales region.
Looking ahead, the electricity generation sector looks set to bring EIA consultants a good deal of work over the coming years. Whether it is wind energy projects – both off and onshore – or proposals for new gas-fired power stations, both Mr Cowan from RPS and ERM’s Mr Hewitt expect a greater amount of EIA work from the electricity sector. Asked whether the plans for new power stations that have recently hit their desks include carbon capture and storage (CCS) technology, the response is no, by and large.
Other than projects coming from the renewables sector, power station design remains fairly run-of-the-mill, despite government rhetoric about the urgent need for carbon emission reduction. Hewitt believes financial incentives from government will be necessary before CCS takes off.
Other likely sources of EIA-related work over the next few years include gas storage, new rail projects and the emerging tidal and wave power industry. EIAs relating to land drainage may continue to be an active area of work for engineering-led consultancies as efforts to minimise flood risk continue. On the other hand, road infrastructure isn’t expected to be much of a focus, since a number of road projects have been approved recently and emphasis is now turning to construction.
Risk of legal challenge
The truth is that the number of ESs being produced each year isn’t the main talking point within the EIA sector. These days, the primary issue of concern appears to be the ever-expanding girth of ESs and the increasingly complex technical and legal input they require. Mr Cowan mentions a rumour he heard that the ES produced for the London Gateway port project amounted to something like 30 CDs. “That must be an exaggeration, but some recent ESs are almost incapable of being produced in print. They can only ever exist in electronic form. They’re that big,” says Mr Cowan.
So much for the Department of Environment guidance, issued in 1995, which states: “For projects that involve a single site and relatively few areas of significant impact it should be possible to produce a robust ES of around fifty pages. Where more complex issues arise the main body of the ES may extend to a hundred pages or so. If it exceeds 150 pages it is likely to become cumbersome and difficult to assimilate.”
According to Mr Hewitt from ERM, case law and the risk of legal challenge are the reason behind ever more complex ESs. “Recent case law has had a profound impact on our EIA work,” he says. “It’s easy for objectors to criticise the EIA process on the basis of case law, to stand up at public inquiries and say the process has not been followed correctly. Scrutiny comes far more frequently and intensely than it used to, at least on the type of projects we’re working on.” Mr Hewitt isn’t pointing the finger at a single legal dispute that suddenly opened the floodgates to further legal challenges, rather he’s arguing that the cumulative effect of EIA-related case law has been to make the raising of objections easier.
Fear among local authorities that their decisions about EIAs will result in legal challenge is strong, confirms Joe Weston, director of the MSc spatial planning programme at Oxford Brookes University (OBU). “I constantly receive calls and emails from councils asking for assistance with screening opinions or to check whether an ES meets minimum requirements. They want to know that the ES meets legislative requirements so that any decision they make cannot be challenged.”
These days, ERM employs a team of planners to ensure that every aspect of an ES is as resistant to legal challenge as possible. Continuously referring back to case law in a bid to construct ESs that comprehensively take account of all relevant legal judgments is a laborious process, but one that experienced clients have come to view as a good investment, says Mr Hewitt. Anything that improves the chance of being granted planning approval and/or increasing the speed with which approval is granted is worth paying for.
Another factor behind the increasing complexity of ESs is planning guidance, according to David Cowan from RPS. “On the one hand, the government wants to streamline processes and make planning simpler, but it’s producing more and more guidance and the number of issues that need to be considered in an EIA continues to expand,” explains Mr Cowan. “For example, planning policy statement nine (PPS 9) says that a wide range of ecological surveys must be undertaken if there’s any danger of protected species being damaged. In our view, it is possible to take account of the potential impact of development on a number of protected species, and given a range of circumstances, without having to survey them to death. But government guidance, particularly guidance relating to ecology and nature conservation as well as flood risk is becoming more complex. That leads to more input into ESs, not less.”
It is this trend toward trying to capture all potential environmental impacts in an ES, rather than only those likely to be significant that has EIA insiders shaking their heads – and producing ever-more complex ESs. Mr Cowan dreams of a time when the scoping process will be employed in what it was intended for – to scope out impacts deemed comparatively insignificant as well as to scope in major impacts. However, he sees no sign of such a change on the horizon.
The threat of legal challenge and the added complexity of much EIA work today mean that there is more work than ever for consultants, particularly those with a track record of success on contentious projects. Estimating how much EIA work is taking place is no longer a matter of counting up the number of ESs, but also of identifying how many ESs involve in-depth investigation of a long list of potential environmental impacts.
Higher quality?
Consultants working on large or controversial projects have had to improve the quality of their work substantially in recent years, says Mr Hewitt. That has been one benefit of increased scrutiny of ESs on the part of statutory stakeholders and groups representing local residents and the public. Another result has been the sidelining of EIA generalists in favour of specialists. “In the early days, consultants with quite general knowledge would have written across a number of topics in an ES, but now each topic requires assessment by dedicated people with specialist skills in the topic and with a high standard of experience,” explains Mr Cowan.
Surely, improvements in the quality of ESs should be celebrated. Yes, but the consensus seems to be that although the quality of ESs prepared for large and/or controversial projects has gone up, overall quality remains highly variable. “Patchy” is the word most frequently used to describe current standards, both in terms of the quality of ESs themselves and the scrutiny they are given by local authorities. According to Mr Hewitt, it is time that EIA practitioners adopted professional standards. He wants to see more clients and councils demanding that the consultants they employ for EIA work are listed on the Institute of Environmental Management and Assessment’s EIA practitioner register (see box).
EIA Practitioners Register
The EIA practitioners register was launched in 2002 by the Institute of Environmental Management and Assessment (IEMA) in order to encourage the adoption of professional standards in the EIA field and, thus, gradually improve the quality of EIAwork. About 40 consultancies are listed on the register and more than 60 individual consultants,most of whom work for large consultancies. There are three levels of individual registry – associate, register and principal.
Awareness of the register varies considerably, says Karl Fuller of IEMA. While many local authorities are aware of the register and support its use, as does the Environment Agency, most private sector clients don’t seem to know about it.Mr Fuller would like to see more EIA clients expecting their consultants to have secured a place on the register.
ERM’s Simon Hewitt, a member of the EIA practitioner register technical sub-committee, believes the EIA sector should be making the gaining of professional standards a priority. “If a client wants to employ planners it will expect those planners to have the right letters after their name, RTPI.The same is the case if someone is employing lawyers. But people employing environmental consultants, for what is increasingly a highly important function, have no way to assess the experience and quality consultants bring with them.”
For information about the register go to www.iema.net, ring 01522 540 069 or email professional.standards@iema.net.
It is also important to bear in mind that the number of EIAs being undertaken still only amounts to slightly more than one a year per planning authority on average, explains Mr Bond from UEA. Some councils don’t have to deal with an EIA for years and then suddenly they’re faced with one. “For local authorities, the big issue is retaining expertise,” says Mr Bond.
Acknowledging what most agree has been a gradual, if uneven, improvement in the quality of EIA documentation is one thing – what Mr Bond calls “one of the many incremental improvements” in the field of EIA he has witnessed over the years – but a fundamental question remains: has EIA genuinely reduced the environmental impacts of development?
“The real test of EIA is surely the quality of the final projects that come out the other end,” argues Joe Weston, director of the MSc in spatial planning programme at Oxford Brookes University (OBU). What a project would have been without EIA – and what it is because of EIA – isn’t easy to assess. But there is some evidence that projects improve because of EIA simply because mitigation tends to be designed in much more than it used to be. The discipline of having to produce an ES and the fact that it is a public document means that developers tend to design mitigation into projects now.”
What’s more, some consultants have noted a greater emphasis recently on monitoring and validation of EIA mitigation measures. Mr Cowan says that RPS is attracting more such work and welcomes it. Clearly, accusations that in the past mitigation measures outlined in detail in ESs weren’t followed through on the ground have begun to hit home.
Visions of the future
Although EIA has probably delivered some positive environmental outcome in many cases, Joe Weston of OBU is frustrated by the battles that rage over individual development projects and the relative inability of ESs to resolve such disputes. “We now have mandatory strategic environmental assessment (SEA) for development plans and we live in a planled system, so what is the point of project-level EIA at the level of detail being undertaken these days?” asks Mr Weston.
“The crucial decision that EIA was created for – is this the right type of development and the right place for it? – is now being made at the development plan stage, so a much more simplified procedure should be all that’s needed at project level.”
Mr Weston admits, however, that simplified EIAs at project level would only work if public engagement also shifted to the earlier, development plan stage. The trouble is public engagement remains stubbornly reactive, he says, and focused on individual planning applications.
Outline planning permission vs reserved matters
One area of uncertainty that currently exists within EIA is the question of the timing of environmental statements (ESs) in relation to outline planning permission and reserved matters.
A recent ruling by the European Court of Justice (ECJ) against the UK government (see ENDS Report 377, June 2006, pp 49-50) clarified that the practice of producing environmental statements (ESs) for submission at the outline planning permission stage, with a good amount of detail left for agreement at the later full planning permission stage, contravenes the EU EIA directive.
The DCLG’s draft Amended Circular on EIA, and draft EIA: a guide to good practice and procedures, both published in June 2006, warn that the court ruling will result in yet further amendments to the circular and guidance.
“The ECJ decision said that not only is EIA necessary at outline stage but also, potentially, for reserved matters. That is bound to increase the number of ESs being submitted – there will sometimes have to be two ESs for the same project.”Alan Bond, University of East Anglia
“The ECJ ruling removes some of the benefits of the outline planning permission process.Developers are having to include more information about the details of projects in outline planning permission applications - so they’re starting to look more like full planning permission applications. But that has also come about as a result of other changes to rules governing outline planning permission. However, some people are beginning to wonder whether the ability set aside some of environmental impact issues at the outline stage in the knowledge that they will be dealt with under EIA at the full planning permission stage might have some benefits. That could allow developers to scope something out at the outline stage on the basis that it will be dealt with as the reserved matters stage. It’s an approach that hasn’t been tested yet, but that could procedurally be a good thing. It would add some flexibility into the process.”David Cowan, RPS
While Mr Weston envisages a situation where battles are fought at the development plan stage, leaving individual projects to be fleshed out in a more conciliatory fashion, Mr Bond hopes that health impact assessment (HIA) will become a more widely used tool.
“I think health impact assessment should be integrated into EIA work but also that health impacts should be considered for some projects that don’t warrant an EIA,” he says. “If you live by the route of a planned bypass there are potential implications for the land that will be tarmaced over – there will be ecology and possibly water quality issues – but the other big issue is the health implications for people living close to the proposed route of vehicle emissions.”
Some of the larger environmental consultancies, including ERM and RPS, have recently invested in staff with HIA skills, but neither Mr Hewitt or Mr Cowan expect health impact work to mushroom as quickly as EIA did. After all, there is no HIA directive looming large. According to Mr Bond, the Department of Health is keen on HIA being employed more frequently, but the DCLG is more cautious on the subject.
ERM has been commissioned to produce an HIA for the proposed second runway at Stansted airport on behalf of the BAA and it has also done some HIA work for Transport for London, Crossrail and other infrastructure projects. Meanwhile, Mr Cowan expects a lot of future HIA work to be driven by councils seeking to anticipate the impact of certain developments on local health service infrastructure – less a case of health impact assessment and more a case of health service impact assessment.
What excites Mr Cowan is sustainability appraisals (SAs) and how these might increasingly complement EIAs. “We’ve seen more growth in SAs than in HIA,” he explains. “There’s a statutory requirement now to undertake SAs in development plans and that seems to be translating into policies to undertake SAs for individual projects. It is through SAs that targets for renewable energy generation and consumption as well as policies governing the use of materials or the recycling of materials in development projects are being formalised.”
With so many ‘new’ ways of assessing development, is there a risk that EIA will be subsumed? That doesn’t seem to be on the horizon, but clearly people within the field are giving some thought to where things may lead one day. “I think eventually we’ll stop talking about EIA on its own,” says Mr Hewitt. “The work will be about impact assessment as a whole, looking at new projects in the round and seeing what the total impact might be on society, on the environment, on the economy. For instance, there is some work already available in the area of equality impact assessments, looking at the winners and losers in specific projects and asking whether there is something inherent in the project that means it might disadvantage certain sectors of the community.”
Public Participation
Will new rules and guidance governing public participation in EIA do much to promote greater stakeholder and public involvement?
“Things are supposed to change thanks to the Århus Convention and the EU public participation directive, but it depends on whether the public is encouraged. Realistically, if we want to see public involvement have an impact on the design of projects then the public needs to become involved at a much earlier stage in the process than any legislation will require it. The current expectation is that the earliest public participation will be required is at scoping, but that would be scoping based on an existing project design. Increased public participation is another positive, incremental step forward but it won’t result in a dramatic improvement in the quality of EIA.”Alan Bond, senior lecturer in environmental management, University of East Anglia
“Public participation in the EIA process is dealt with in a very patchy way at the moment and nowadays people expect to have a bigger say in the process. It shouldn’t just be a case of consulting with statutory consultees. Greater public participation fits with the current ethos about the public having a right to a say. Interestingly, the stakeholder engagement process on overseas EIA projects we’ve worked on has tended to be more thorough and comprehensive. If you look at the Equator Principles or even the World Bank’s or International Finance Corporation’s guidelines, there are some fairly stringent requirements about stakeholder engagement. This is one area where European practice lags behind.”
Simon Hewitt, director, ERM
“I don’t see the new rules as having a huge impact.When the requirements of the Århus Convention and the EU public participation directive were compared to UK planning and EIA practice it was found that the new requirements for public participation were already largely being met by existing requirements about publication and key stakeholder consultation.” David Cowan, director, RPS “In Denmark, it is mandatory for the public to be involved in the screening process and the scoping stage.We don’t do that in the UK. Public participation has always been recommended at scoping but it’s not mandatory. The point about public participation, however, is that we live in a society where people no longer trust experts. So we have ESs produced by experts that nobody believes. It’s fine to have more public participation but if nobody believes any of it, what’s the point?”Joe Weston, director MSc spatial planning, Oxford Brookes University
If Mr Hewitt is right, EIA may eventually be seen as one approach in a suite of fully integrated assessment tools employed to accept, reject, fine-tune and/or monitor the quality of development. But, warns Hewitt, “it will be a slow process if it is driven only by precedent and enlightened clients, and not legislation”.
FURTHER INFORMATION
- Incomplete returns to the DCLG from the Department for Transport and Defra (the latter relating to EIAs for proposed agricultural changes to uncultivated land/semi-natural areas) mean that the number of EIAs undertaken in 2005 is probably slightly higher than 667.