Taking stock of environmental assessment

The 1985 EC Directive on environmental assessment of major projects has been in force for five years. A long-delayed report on its initial impact has revealed large variations in the implementing laws and the numbers of projects subject to assessment among Member States, as well as major defects in the quality of many environmental statements. The European Commission is set to respond with a proposal to amend the Directive, but both its current ideas and changes in its procedures for handling public complaints about the application of the Directive are running into resistance from the UK.

A good deal of water has flowed under the bridge since the ballyhoo created in October 1991 when the then EC Environment Commissioner, Carlo Ripa di Meana, went public with allegations that the UK had committed a series of infringements of the 1985 EC Directive on environmental assessment of major projects (ENDS Report 201, pp 14-17).

Sr di Meana, for one thing, is no longer in his job. The insensitive timing of his initiative, which helped to stoke up the anti-federalist sentiments and concerns about interfering Brussels bureaucrats that had already been evoked in the UK by the negotiations on the Maastricht Treaty, left him isolated within the Commission, and within months he had departed to take up a short-lived post as Italy's Environment Minister.

"Pipeline" projects
Today, all but one of the charges levelled against the UK in 1991 have been dropped. The exception is the alleged failure to comply with the 1985 Directive in connection with a controversial road through Oxleas Wood, a remnant of an ancient woodland in south-east London. The Commission claims that the environmental assessment for the road did not contain adequate information on its potential ecological impacts.

The wider point in contention is whether an assessment of the kind required by the Directive was needed at all. The Government insists that it was not because the application to build the road was submitted well before the Directive came into force in July 1988. The Commission's view, however, is that the application date is irrelevant, and that since the consent for the road was issued later in 1988 an assessment was required. This dispute over "pipeline" projects is a transient one, but may yet have one last sting in its tail before it draws to a close.

Delay for strategic assessment
One further consequence of the controversy provoked by Sr di Meana was that the already receding prospect of an early legislative proposal to extend environmental assessment requirements from projects to policies, plans and programmes vanished altogether. An initial draft of the proposal was circulated in 1991, but quickly ran into strong objections from the UK, among other Member States (ENDS Report 196, pp 18-20).

The current position, according to David Noble of the Legal and Enforcement Unit in the Commission's Environment Directorate, is that Brussels will look further into the experiences of Member States in applying strategic environmental assessment and identify suitable methodologies before coming forward with a revised proposal. "It would be unfair to give the impression that legislation will be coming up shortly," he told a conference at Manchester University on 6 April.

However, this should not be taken to mean that the heat has gone out of the debate. The Commission is expected to come forward soon with a proposal to amend the 1985 Directive on assessment of projects - and already the indications are that this will not be plain sailing.

Rising UK trend
There can be no dispute that the Directive has made a much bigger impact in the UK than anticipated. The Government's expectation was that it would result in environmental assessments of perhaps a few dozen projects each year. But within 12 months of the new regime's entry into force the total had passed 100, and proceeded to increase rapidly thereafter.

According to Manchester University's EIA Centre, at least 467 environmental statements were submitted in the UK in the 30 months to the end of 1990. A further 321 were submitted during 1991, according to a recent analysis by the EIA Centre.1The trend may since have levelled off. Chris Braun, head of the Environmental Assessment Directorate at the Department of the Environment (DoE), told the conference in Manchester that the DoE knows of 1,142 statements submitted since mid-1988 - indicating that 354 were submitted from January 1992 to around March 1993. The exact total is unknown because there is no national repository of environmental statements, but probably no more than 5% are missing from these figures. Overall, the total seems to have settled at about 300 statements per year, although this may pick up as the recession eases.

An analysis of the post-1991 statements has yet to be carried out. However, the EIA Centre's report shows that the proportion of Annex II projects - those for which an environmental assessment is required only where they are likely to give rise to "significant" environmental effects - increased during 1991, and accounted for 89% of all the environmental statements submitted since July 1988 (see table ).

The types of development most commonly subject to assessment were roads, harbours, railways and airfields (133), urban development schemes (88), waste disposal facilities (112), mineral extraction (68), flood relief works (44) and electricity generation schemes (42). Manufacturing installations were well down the list, with chemical plants (18) being subject to assessment most frequently. 1991 saw some changes in the pattern of projects, with sizeable increases in the numbers of environmental statements submitted for forestry schemes, industrial estates, roads, wind turbines, electricity transmission lines and waste disposal sites.

Slow quality improvement
The Directive's significance is not merely in the numbers of projects drawn into the assessment net but the extent to which environmental statements promote more informed decision-making. Early indications on this count were not encouraging.

In a study for the DoE two years ago, the EIA Centre found that 62% of a sample of 24 statements were "unsatisfactory" when judged on a six-point scale for their objectivity and completeness in terms of the Directive (ENDS Report 199, pp 12-15). A subsequent review of 83 statements brought some evidence of improvement, with only 40% falling in the three "unsatisfactory" categories, but clearly did not provide any grounds for complacency.

One of the factors previously identified by the EIA Centre as being behind the poor quality of many statements was the thin spread of experience in the environmental assessment process among developers and their consultants. Its latest analysis suggests that this remained the case to the end of 1991.

Experience with assessments
The figures in the two tables below are based on samples of the environmental statements submitted in 1988-90 and 1991. For the first period the sample comprised 246 statements, or 53% of the total submitted. For 1991 the sample comprised 81 statements, or 25% of the total. Because both analyses were based on samples they clearly overstate the inexperience of developers and consultancies, but probably not by a great deal.

The table below shows that the proportion of developers who had prepared more than one environmental statement by the end of 1991 was still small. In 1988-90, the figure was 18%. By the end of 1991 it had risen to 22%.

Experience has accumulated more rapidly among consultancies, but again remains limited. The table below shows that 14% of those used by developers prepared more than one statement in 1988-90. By the end of 1991, the figure had risen to 26%.

Experience of environmental assessment also remains thinly spread among local authorities, which received about 70% of the environmental statements prepared to the end of 1991. The table below shows the figures from the EIA Centre's sample.

One final point worth drawing out from the report is the length of environmental statements. In 1991, the EIA Centre found from a review of 83 statements that only 10% of those containing 25 pages or less were of "satisfactory" quality, while 78% of those containing more than 100 pages were "satisfactory".

The latest analysis tends to confirm the improving quality of environmental statements, albeit indirectly. Of the 246 statements in the 1988-90 sample, 25% contained 20 pages or less, but in the 1991 sample the figure dropped to 7%. In contrast, the proportion with over 100 pages rose from 23% to 44%.

The improvement should not be overstated. According to Peter Nelson of Land Use Consultants, which is helping the DoE to prepare a guide to good practice in environmental statements, many still have serious defects. The scope of statements and methods used, he told the Manchester conference, are "often poorly defined"; "poor predictive techniques" are commonplace; "lack of balance" and "bias" are encountered "very often"; "quite a number" still lack the non-technical summary required by the Directive; the relative importance of environmental impacts and their interactions are often not explored; and some statements suffer from "excessive padding".

EC review
The UK may be continuing to have problems in achieving adequate quality in environmental statements as well as other aspects of the environmental assessment process - but it is not alone. An overview of the impact of the 1985 Directive in the twelve Member States, due to be issued by the Commission in July 1990, has at last been published - and it shows a far from satisfactory state of affairs in most countries.2The report covers only the period to July 1991. Even so, it might have been thought that sufficient experience would have accumulated by then to weigh up the impact of the Directive. However, this proved to be the case in almost no Member State. With the exception of France, which claims that its existing legislation already met the Directive's requirements, implementing laws were brought into force in almost every other Member State in 1990-91, and even then important areas of non-compliance remained in most countries. These include the UK, which promised the Commission some time ago to introduce further legislation - notably the incorporation of certain agricultural and forestry projects within the assessment system - but has yet to do so.

Among the report's main findings are:

  • Annex I and II projects: Member States have generally introduced or announced laws requiring environmental assessments for all Annex I projects, as required by the Directive. However, the situation with Annex II projects is very patchy. The UK's legislation, along with that of Greece, France and Eire, embraces all Annex II projects. At the other end of the spectrum, Italy, Denmark and Spain have provided for the assessment of only a few of the 81 types of Annex II projects.

    The picture is complicated further by variations in the extent to which Member States have laid down quantitative criteria defining when an Annex II project should or may be subject to assessment, and the status of those criteria. Some have been laid down in the UK, but they are advisory only - whereas in most other Member States they are legally binding. Where no criteria have been laid down - as in Spain - or where the thresholds are very low - as in France - then most projects in the categories concerned are subject to assessment, whereas the converse tends to apply in the UK.

    There are also significant differences between the criteria adopted for particular types of project by different Member States. For waste disposal sites, for example, Eire, the Netherlands and the Flanders region of Belgium require an assessment where the annual capacity is more than 25,000 tonnes, whereas in the UK the advisory threshold is 75,000 tonnes. Similarly, for quarries the assessment threshold varies from five to 100 hectares, and for pig units from 20 to 5,000 pigs. As the report notes, "whilst there is no a priori reason why the minimum size of projects giving rise to significant impacts should necessarily be the same in all Member States, a number of the differences in threshold levels are hard to justify."

  • Coverage of assessments: The Directive defines the scope of environmental assessments in two articles and an annex. A basic requirement that impacts on certain features of the environment must be covered in an assessment as appropriate has not been incorporated fully into the laws of Belgium, France, Luxembourg and Portugal. Omissions in these cases include impacts on wildlife, landscapes, and interactions between impacts.

    The same article provides that the scope of the assessment should take account of the specific circumstances of a particular project, but does not go on to lay down any "scoping" procedure to determine which impacts should be covered. Statutory provision for scoping has been made only in Belgium, Germany, Luxembourg and the Netherlands.

    Most Member States, including the UK, have adopted a minimalist approach to the implementation of Article 5 and Annex III of the Directive, which set out in more detail the information to be provided by developers but leave some room for discretion as to what should be required in a particular case. Only Germany, Greece, Denmark and the Netherlands, for example, have made it a legal requirement that information should be provided on alternatives to a proposed project. Other countries, including the UK, have made this an option, while some have not covered it in their laws at all.

  • Public information and participation: The Directive provides that environmental statements should be made available to the public and that the public should have the opportunity to comment on them, but leaves Member States considerable discretion in how to achieve this. The evidence suggests that the arrangements for public involvement are not working well in much of the Community.

    For example, only Denmark, Ireland, the Netherlands and the UK have made legal provision for the public to obtain copies of environmental statements, though even this is lacking in some of the UK's implementing regulations. Some Member States only allow inspection of the documentation. But in Portugal and Belgium the public are allowed access only to the non-technical summaries of some environmental statements, while in France some statements are made available only after a project has been authorised and initiated.

    Similar variations among Member States exist in the extent to which the public are able to comment on environmental statements. Overall, the report says, the evidence is that "the minimum legal rights of citizens to consult the environmental statement and comment meaningfully on its contents are insufficiently safeguarded in law."

  • Decision making: A basic requirement of the Directive is that the information gathered in the course of the environmental assessment process must be taken into account in the project authorisation decision. Most Member States have not introduced additional rules to implement this, relying instead on existing consent procedures. The exceptions are Germany, the Netherlands, Italy and Spain, where provision has been made for the authorities to set out the reasons for their decisions on a consent application or identify the main environmental impacts taken into consideration.

    While Member States were not obliged to pass laws requiring authorities to give reasons for their decisions, it is within the spirit of the Directive that they should do so, the Commission's report argues, since "the use made of environmental information and consultation findings in reaching decisions on project authorisations is crucial to the effectiveness of the environmental assessment process as a whole." Overall, it says, the evidence indicates that the findings and conclusions of the environmental assessment process are not being taken adequately into account in a "significant range of cases".

  • Numbers of environmental statements: Because most Member States were late in implementing the Directive, only limited evidence about its impact was available when the report was compiled. However, this indicates very large national variations in the numbers of projects subject to assessment.

    The table below summarises the Commission's findings. It gives both the absolute numbers of environmental statements produced in each Member State, and the numbers when standardised for differences in GDP, population and surface area. The figures vary by up to four orders of magnitude, and clearly reflect the variations in the lists of projects for which assessments have been required by national laws and in the quantitative criteria laid down by different Member States.

    The failure of some Member States to require assessments for entire categories of Annex II projects, as well as the variations in assessment criteria, are obviously matters for concern. But, as the report points out, "there is also an opposite concern where the adoption of very low thresholds (or no thresholds at all) results in very large numbers of relatively small projects being submitted to environmental assessment. Particularly during the early stages of implementing an environmental assessment system, this can place considerable demands on the resources and assessment skills available and may make it harder to achieve good quality standards." Observers of the French regime, which is spawning a record 5,000 assessments annually, would add that the very limited opportunities provided for public comment on consent applications is another factor working for poor quality in environmental assessment.

  • Quality of environmental statements: In the absence of any objective criteria, the Commission's conclusions on this issue are based on the consensus of interested parties consulted in the course of its review. The overall picture is that the majority of statements prepared in most Member States were not of satisfactory quality. Where figures were given the proportion of satisfactory statements ranged from 60% in the UK to 20% in Spain. The report identifies the lack of mandatory scoping requirements and the inadequacy of quality control procedures in most Member States as the main causes.

  • Costs and benefits: Developers are not suffering any significant extra expense as a result of the Directive, the Commission believes. Preparing an environmental statement typically adds a fraction of 1% to the capital costs of a project, although this may rise to above 1% for small, non-capital intensive developments. Project timescales have rarely been significantly delayed, and in some cases have been shortened.

    On the benefits side, clear evidence has already emerged that projects are being modified to make them more environmentally acceptable as a result of the assessment process, the report says. However, most modifications have been minor, and the full potential benefits of the Directive for the environment have yet to be realised because of the widespread deficiencies in its formal and practical implementation.

    Amending the Directive
    The report's main findings are expected to influence the Commission's proposals for amending the 1985 Directive. According to David Noble, the likely amendments are:

  • Screening: The evidence that some Annex II projects are slipping through the assessment net is likely to prompt the Commission to introduce a formal requirement that candidates for assessments must be "screened", possibly in accordance with specified criteria. The authorities may also be obliged to publish their decisions.

  • Scoping: Likewise, the evidence that relevant impacts are not being dealt with adequately or at all in some environmental statements may result in a new duty on the competent authority to define, in consultation with the developer and other environmental authorities and on a case-by-case basis, which of the issues listed in Annex III should be covered in the statement.

  • Role of statutory consultees: The Directive requires relevant environmental authorities to be consulted on a developer's application for consent, but does not make it explicit that they should also have the opportunity to comment on the environmental statement. This loophole is likely to be closed.

  • Decision making: In turn, the competent authority will be placed under a duty to take into consideration the views of consultee authorities when determining a consent application. The Commission is also looking for stronger language to replace "take into consideration", and is likely to propose that the competent authority should publish reasons for its decision.

    These proposals may appear to be logical answers to some of the problems identified by the Commission's review. But Chris Braun made it plain at the Manchester conference that the DoE does not see things that way. There was no reason to believe, he said, that extending the 1985 Directive by introducing new provisions on screening or scoping would add anything to environmental protection. Many of the Commission's ideas, he added, "look very much like extensions of Community competence in areas where subsidiarity should apply."

    The amending Directive therefore seems set to be one area of conflict between the UK and Brussels. Another is the continuing tussle over how the Community should handle the flood of public complaints about the application of the Directive in individual Member States.

    Dealing with complaints
    The 1985 Directive is attracting more complaints to Brussels than any other environmental Directive. The Commission's report shows that complaints increased from 34 in 1988 to 170 in 1990, with the UK (48) coming second to Spain (72).

    According to David Noble, few current complaints are about the Directive's transposition into national laws. Most now concern the quality of specific assessments, the way in which they were conducted, or allegedly misguided decisions by the authorities that Annex II projects did not merit assessment because they would not cause "significant" environmental effects.

    Both the large number and the changing content of complaints are presenting the Commission with serious problems. The Commission, he said, is not some "supranational competent body" readily able to arbitrate in these disputes, but equally it cannot simply wash its hands of public complaints. What it is now doing is sifting the complaints received by applying what he called a "test of reasonableness", and concentrating on those which indicate clear breaches of the Directive.

    However, Chris Braun was sceptical about whether this approach will get the Commission out of its difficulties. In the UK, he noted, the courts will overturn an authority's decision on grounds of reasonableness only if it was so manifestly unreasonable that nobody should have taken it. The Commission, he suggested, was operating a rather different principle.

    Moreover, he maintained, the Commission sometimes alleged in response to public complaints that incorrect procedures had been followed by an authority when in effect it was seeking to substitute its own less well-informed judgement in cases where there was no objectively correct decision. This, he complained, imposed particularly unjustifiable burdens on the DoE's workload when the procedural matters in question would not have affected the outcome of an authorisation decision.

    DoE guides
    The Commission and the DoE clearly do not see eye to eye on the issue. But the DoE has yet to make a convincing response to the evidence assembled by its own studies and others' that many environmental statements continue to be of poor quality, and that some authorities are failing even to consider whether an environmental assessment should be required or to observe the consultation requirements laid down by the Directive.

    A response, true, has been promised, but is running well behind schedule. It will take the form of a guide to good practice in preparing environmental statements, publication of which has now been promised by the end of 1993, and a second guide on the evaluation of environmental statements by authorities, which is due out in mid-1994.

    Both documents may help to raise environmental assessment standards in the UK, but they will not resolve the difficulties posed by public complaints about the operation of the assessment system. The DoE will doubtless continue to complain about being submerged by the paperwork generated by the Commission's attempts to enforce the 1985 Directive, but until a means of ready legal recourse is provided to the public in the UK there is likely to be little sympathy with its predicament.

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