754: New EIA regulations come into force

Today’s entry reports on the new regime for environmental impact assessment.

Today is 16 May 2017, which is the date by which the new environmental impact assessment (EIA) Directive must be implemented (see Article 2(1)). Has the UK managed it? Mostly.

The thing is, each legal regime for giving permission for some sort of development either has its own separate EIA regulations (which is easier for those drafting them), or EIA is woven through the main regulations (which is easier for those affected by them). The government has implemented the first sort by today’s deadline but not the second.

Examples of the first are:

• our very own Infrastructure Planning EIA Regulations;
• the Town and Country Planning EIA Regulations; and
• the Marine Works EIA Regulations.

Examples of the second are:

• the Transport and Works Act 1992 regime;
• the Harbours Act 1964 regime; and
• the Highways Act 1980 regime.

The government has consulted upon the latter but hasn’t implemented the results yet. Tut tut – we might get thrown out of the EU!

The regulations apply to any project that hasn’t applied for its main consent yet, or for a screening or scoping opinion. If you’ve got that far you can carry on using the previous regime. I expect there was a rush for the last two in the last couple of weeks, since a basic application isn’t that expensive to prepare, although if it’s too basic it might get rejected.

So what are the changes? Ever obliging, I have produced a tracked-change version of the Infrastructure Planning EIA Regulations so that you can see what they are reasonably clearly. Feel free to ask me for a copy – all I ask is some intel on forthcoming projects.

Here is a quick summary of them if black (or red) letter law is not your thing:

1. Even the definitions are interesting. The definition of ‘preliminary environmental assessment’ in the main definitions article has been removed, but before you get too excited it reappears unchanged in regulation 12, as that is the only place it is used. There is also a definition of ‘UK environmental assessment’, which I take to be a precursor to post-Brexit EIA.
2. A new regulation 5 sets out what EIA actually is – something that hadn’t been done before.
3. Screening opinions must be given within 90 days, although this period can be extended (7(6)).
4. A new requirement that an environmental statement must be ‘based on’ any scoping opinion that is obtained – how closely remains to be seen and this may discourage the seeking of scoping opinions (14(3)).
5. The deadline for pre-application consultation and making representations on an accepted application must be at least 30 days rather than 28 days.(19(6)(h)(ii) and 36(4)(c)(ii)).
7. The big change is created by new regulation 21. When deciding an application the Secretary of State must ‘reach a reasoned conclusion’ on the significant effects of the proposed project on the environment and integrate this into his or her decision and decide whether monitoring measures should be imposed. The decision notice must contain all this information (30).
8. I take that to mean that an independent conclusion must explicitly be reached on the effects of the project, and sufficient expertise must be available for this purpose (5(5)).
9. Monitoring and EIA should be co-ordinated to avoid duplication if, say, habitats are also engaged.
10. It is possible, but exceptional, to be exempted from the requirement to undergo EIA (33).
11. There must be a functional separation where the decision-maker is also the applicant (35).

Those are the main changes as I see them, and the main main change is embodied in regulation 21.

This is a big day in environmental impact assessment that will affect every project coming forward from now on, so it is certainly worth being aware of what is going on.