EA rules to be applied at last to offshore oil and gas projects

Nine years past the legal deadline, the UK is finally on the way to applying the 1985 EC Directive on environmental assessment to offshore oil and gas projects. Draft regulations proposed by the Department of Trade and Industry (DTI) will open up the offshore licensing process to greater public scrutiny, although environmental organisations will need to be convinced that the DTI will not continue to invoke commercial confidentiality as grounds for withholding environmental information.1 One element of the proposals has already been overtaken by a recent amendment of the 1985 Directive.

The Directive should have been brought into force by mid-1988. The UK met this deadline with its main implementing regulations, but, under threat of legal action from the European Commission, has since been forced to bring additional categories of projects into the assessment regime and correct other deficiencies in its transposition of the Directive.

Environmental groups began pressing the DTI to apply the Directive to offshore oil and gas projects as far back as 1990, and a formal complaint about its failure to do so was made to the Commission by Friends of the Earth Cymru and Friends of Cardigan Bay. In June 1995, the Government promised the Commission that it would make good the omission by April 1996 (ENDS Report 245, pp 29-30 ).

That deadline, too, was missed. Finally, on 17 July, Energy Minister John Battle announced the publication of draft regulations for consultation until 1 October.2The timing may well have been influenced by a Greenpeace application to the High Court for leave for a judicial review of the legality of the latest offshore licensing round against both the 1985 Directive and EC legislation on habitats. A full hearing of the application is expected in the autumn.

The regulations would require environmental assessment of offshore oil or gas projects where they involved deep drilling, extraction operations or pipelines within UK waters, and where, in the Secretary of State's view, they were likely to give rise to "significant" environmental effects.

This proposal is in line with the regime for projects listed in Annex II of the 1985 Directive. However, the Directive was amended earlier this year, and one class of projects newly included in Annex I - for which assessment is mandatory in all cases - is gas or oil extraction where the amount extracted exceeds 500 tonnes of oil per day or 500,000m3 of gas per day. The amending Directive is due to be brought into force by March 1999, and the DTI has offered no explanation why it is not taking the opportunity to transpose this requirement immediately into UK law.

The draft regulations generally follow the scheme of earlier rules. Environmental statements can be offered by companies intending to apply for consent for offshore developments or can be required by the Secretary of State. Statutory consultees from whom applicants will be able to seek information in preparing a statement will be designated by the Secretary of State, who will also have powers to demand further information from applicants if a statement is felt to be deficient.

Once an environmental statement is prepared, the applicant will have to advertise this and make copies available. Third parties will be able to make representations to the Secretary of State about the application - though they will have just 14 days to do so.

Unusually, the draft regulations provide for anyone aggrieved by the grant of a consent for an offshore project and who has "a sufficient interest in the matter" to apply to the courts where he feels that the Secretary of State has failed in his duty to take the information provided in the assessment process into consideration or that any of the detailed requirements of the regulations have been breached. If a court concludes that the Secretary of State had failed in his duty or that the applicant's interests had been "substantially prejudiced" by the grant of the consent, it may quash the consent.

The DTI has also proposed that the Secretary of State should have the express power to direct in "exceptional cases" that a project should be exempted from all or part of the regulations. This is permitted by the Directive, but in such cases Member States must consider whether another form of assessment would be appropriate and the results should be made public, make public "information relating to the exemption and the reasons for granting it", and notify the Commission of the exemption before giving consent to the project.

The regulations will open up a process which until now has been highly secretive. According to the DTI, environmental assessments have been required for offshore oil and gas projects within 25 miles of the coast or in other sensitive areas where recommended by statutory bodies, especially the Joint Nature Conservation Committee.

However, publication of the results has been at the discretion of oil and gas companies, and the DTI has consistently refused to make public the advice it receives from the Committee. Environmental groups with experience of the DTI's track record on disclosure are likely to remain concerned that it may withhold parts of environmental statements under provisions in the Directive allowing the authorities to "respect the limitations imposed by national regulations and administrative provisions and accepted legal practices with regard to industrial and commercial secrecy" - though they will have noted that Mr Battle made a point of emphasising that the new rules will "make the decision process more open than it is now."

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