Someone recently bought our

students are currently browsing our notes.

X

Environmental Assessment Notes

Law Notes > Environmental Law Notes

This is an extract of our Environmental Assessment Notes document, which we sell as part of our Environmental Law Notes collection written by the top tier of Oxford students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Environmental Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Environmental Assessment Notes
What is environmental assessment?
Fisher, Scotford and Lange (2019) define environmental assessment (EA) as a decisionmaking tool by which the potential environmental impact of a project can be assessed.
 In turn, this assessment can be taken into account in making a decision about whether that project can go ahead, and if so, on what basis.
All forms of EA are concerned with the process by which decisions are made, not their eventual substance.
 This begs the question, what is the value of a framework which does not mandate direct substantive consequences?
o Holder and Lee (2007) offer the best answer to this question: they understand the conceptual premise of environmental assessment to be "that introducing information about the effects of development into a decisionmaking process encourages an informed choice to be made between environmental and other objectives, possibly resulting in less environmentally harmful decisions"
 BUT: this would suggest that EIA is merely a tool: there is now a rich body of literature emerging which contests this view, asserting that that EIA is a process intended to bring about more profound changes in attitude by instilling environmental values in the decision-making culture or through wider social learning
 BUT: to what extent are these aims inconsistent? Do they not actually support and reinforce one another?
When the first form of EA was introduced, the American judge Leventhal (1974) described it as "setting the law ablaze" - in saying this, he referred to the impact that EA had upon the nature of administrative decision-making processes.
What are the different types of environmental assessment?
Broadly speaking, there are two types of environmental assessment:

1. Environmental Impact Assessment (EIA) - since 1985, the EIA Directive has required and EIA to be carried out for all public and private projects that are "likely to have a significant effect on the environment' before they are granted development consent by a public authority

2. Strategic Environmental Assessment (SEA) - in 2001, the SEA Directive was introduced, which requires assessment of the effects of certain plans and programmes on the environment
Per Fisher, Lange and Scotford (2019), there are some important differences between EIA
and SEA: 

Identification of and Debate as to Alternatives - SEA is less quantitative than EIA
and more focused on identifying and debating alternatives.
o A comprehensive SEA regime should apply to all strategic decision-making and require the decision-maker to identify both (a) the objects of their strategic decision making, and (b) their SEA objectives
 The decision-maker must then identify the most environmentally sustainable alternatives, achieving strategic objective by carrying out assessments of different alternatives
SEA More "Upstream" - SEA was introduced to remedy the fact that EIA occurred to close to the end point of decision-making, and thus SEA represents an opportunity for environmental factors to be considered "upstream" in the decision-making process

What is an EIA?
Sadeleer (2002) has said that the EIA forces "truly revolutionary changes upon the traditional administrative process"
 Further, it gives "rise to a dynamic which informs administrators, project initiators and third parties and provides them with an opportunity to require fuller integration of environmental concerns into the decision-making process"
NOTE: EIA is heavily integrated into the planning process
EIA as a Process
EIA refers to a systematic decision-making process in which information is collected about the possible environmental impacts of a project and, on the basis of that information, the potential impact of that project on the environment is then assessed (Fisher, Lange and
Scotford, 2019)
There are a series of steps involved in the EIA process:

1. Screening - at this stage, a decision is made about which activities should be subject to an EIA

2. Scoping - here, a decision is made about which impacts of a project should be subject to an EIA

3. Preparing an Environmental Impact Statement (EIS)/ Environmental Statement (ES)
- composing such a statement involves a series of different steps, including:
describing the project and environmental baseline; identifying and predicting the impacts from a project; evaluating their significance; and assessing whether these impacts can be mitigated, or potentially whether alternatives can usefully be considered. 4. Public Participation - members of the public have the right to see and comment on the ES here

5. Making a Decision - here, a final decision is made about whether or not the project should go ahead

Importantly, most EIA systems only require the EIS to be taken into account,
and does not dictate what the final decision will be.
Historical Development
EIA originated with the National Environmental Policy Act 1969 (NEPA), in the US - this was passed in light of the flourishing of environmental politics in the 1960s.
 Very quickly after the creation of NEPA, other jurisdictions introduced EIA into their law, including: Canada (1973); Australia (1974); West Germany (1975); and France
(1976).
 In Pulp Mills (Argentina v Uruguay) the ICJ said that it could now be considered that there was "a requirement under general international law to undertake an environmental impact assessment"
o However it noted that the scope and content of this form of EIA was not determined, as was to be left to each individual Member State.
Nature and Purpose of EIA
There is disagreement as to the purpose and nature of an EIA:

Benson (2003) - views EIA in bureaucratic terms: EUA is seen as a rational and systematic process, perhaps also as holistic, proactive, anticipatory and integrated
Saarikoski (2000) - views the EIA in deliberative terms: EIA has lost its credibility as a process driven by experts in which the public can only react to ready-made repots such as environmental statements
Carpenter (1999) - views EIA in scientific terms: he focuses on the bi-geo-physical consequences of man's activity in relation to the environment.

These different understandings lead to disagreement as to which actors should be involved in the EIA process and to what degree they should be involved
NOTE: these differing conceptions show that EIA is a social practice (rather than a mere set of procedures)
Limits of EIA
Fisher, Scotford and Lange (2019) identify three limitations of EIA:

1. Limits of Scientific Knowledge

EIA is oft viewed as useful as it is a way of collecting, collating and interpreting information. However, the information base is often deficient and there is no realistic means of improving

Lawrence (1997) has argued that uncertainty is inherent in EIA
 EIA usually involves complex processes and systems, which generate counterintuitive, acausal behaviour, are characterized by multiple interactions and feedback/feedforward loops,
involve diffused authority and are often irreducible

2. Too Much Faith

There is a danger that too much faith is placed in EIA as a decision-making tool, which potentially leads to too much weight being given to and ES (and what might be flawed information)
o Tribe (1972) argues that EIA is useful because it distils a complex problem into an easy solution
 BUT: this is problematic where it encourages distillation even where this is not possible, to the detriment of the analysis as a whole

3. EIA Not Binding

Just because decision-makers have to take the ES into account, does not mean that they will make decisions which will avoid these impacts
How does the EIA Directive work?
The Directive
Despite opposition to the Directive from Member States (for fears it would lead to an overly rigid system and a growth in litigation), Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment was passed under
(then) Articles 100 and 235 EC.
 NOTE: while the fundamental motivation for the Directive was environmental protection, one of the bases for harmonisation was the common market competence

The harmonising of this area of environmental regulation was a means of maintaining the common market by ensuring that competition was not distorted by different Member States having different EIA regimes
The EIA has undergone a range of amendments - it is not static (Fisher, Scotford and Lange,
2019)
 1997 - addressed the perceived weakness of the directive by (a) widening its scope to apply to more projects, (b) considering the transboundary effects more fully, and
(c) requiring the developer to provide more comprehensive information
 2003 - made sure the Directive was consistent with Aarhus
 2009 - made changes to Annex I and II, by adding projects relating to the transport,
capture and storage of CO2
 2011 - codified the Directive and earlier amendments
 2014 -revised the Directive after a significant review

The Basic Obligation Article 2(1) sets out the basic obligation under the EIA Directive:
"Member States shall adopt all necessary measures to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effect on the environment. Those projects are defined in Article 4"
When in doubt about the interpretation of the EIA Directive, one should always return to
Article 2(1) - the courts regularly do this.

Article 1(2) defines project in the following broad terms:
 The execution of construction works or of other installation schemes; or
 Other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources
Article 1(2) also defines development consent as:
"the decision of the competent authority of authorities which entitles the developer to proceed with the project"
Screening
The first step of the EIA is a screening process. Article 4 dictates the framework for determining which projects should be subject to EIA.
 NOTE: Article 2(1) is the overarching principle
There are two categories of project set out in Article 4:

1. Annex I - these are projects which definitely require an EIA (Article 4(1))
o Annex I includes, but is not limited to: crude oil refineries, nuclear power stations, installations solely designed for the permanent storage or final disposal of radioactive waste, integrated chemical installations, motorways, and trading ports

2. Annex II - Member States must consider whether or not such a project requires an
EIA (Article 4(2))
o Annex II includes projects that are: part of agriculture, silviculture, aquaculture,
extractive industries, the energy industry, the production and processing of metals, the mineral industry, the chemical industry, the textile, leather, wood and paper industries, the rubber industry, tourism and leisure, and other projects including change and extension of projects listed in Annex I or Annex II
Annex III sets out a range of selection criteria that should be taken into account in assessing whether or not a project is likely to have a significant impact on the environment. 

These criteria can be split in to three categories:
o Characteristics of the Project - relevant here is: size, cumulation with other projects, use of natural resources, production of waste, pollution and nuisances, and risk of accidents.
o Location of the Project - relevant here is: environmental sensitivity of geographical areas having regard to issues such as existing land use; relative abundance, quality and regenerative capacity of natural resources in the area;
and absorption capacity of the area.
o Characteristics of the Impact - relevant here is: extent of impact, trans-frontier nature. Magnitude and complexity, probability, duration, frequency, and reversibility

Article 4(2) explicitly allows Member States to determine whether an Annex II project requires an EIA either on a case-by-case analysis, or by setting thresholds or criteria.
 BUT: Article 2(1) governs this Member State discretion
Article 4(5) requires a decision-maker to make their decisions and reasons public
Scoping
Scoping comes after screening, but is not mandatory under the Directive.
 Article 5(2) allows Member States to require a scoping opinion, and also requires such an opinion where the developer requests it
Information, Participation and Consultation
Article 3 sets out in very general terms what an EIA will "identify, describe and assess" -
generally it will identify, describe and assess the direct and indirect effects on human,
animal and plant life, the natural environmental and cultural heritage.
Per Article 5(1), as a bare minimum, an EIA report will include:
 Description of the project
 Description of the likely significant effects of the project on the environment
 Description of the features of the project
 Description of reasonable alternatives
 Non-technical summary of the above descriptions
 Any additional information specified in Annex IV relevant to the specific characteristics of the project
Article 5(3)(a)-(b) provides that:
"In order to ensure the completeness an quality of the environmental impact assessment report:
(a) The developer shall ensure that the environmental impact assessment report is prepared by competent experts; and (b) The competent authority shall ensure that it has, or has access as necessary to,
sufficient expertise to examine the environmental impact assessment report"
Article 6 requires public participation
 Article 6(1) - Member States must ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities or local and regional competences are given an opportunity to express their opinion on the information supplied by the developer
 Article 6(2) - the public shall be informed early in the decision-making procedures in
Article 2(2)/as soon as information can be provided of: request for consent, the fact that an EIA is needed, details of the authorities responsible for the decision; the nature possible decisions, indications of availability of information gathered pursuant to Article 5, and details of the arrangements for public participation
 Article 6(3) - Member States will ensure that the following is made available in reasonable time: information gathered pursuant to Article 5, and the advice issued to the competent authorities
 Article 6 (4) - the public are to be given early opportunities to participate and are entitled to express their opinions

NOTE: these provisions make the EIA process far more like Saarikoski's model than those described by Benson and Carpenter
NOTE: there is a tension between the requirement of public participation and the requirement that expert assessments are used
Article 7 sets out the process for consulting other Member States where the project has transboundary effects
Decision-Making, Challenges to Decisions and Post-Decision Monitoring
Article 8 sets out that the results of consultations and information gathered pursuant to
Articles 5 and 7 must be "duly taken into account in the development consent procedure"
 This is not an obligation to achieve a particular outcome
There are provisions relating to the giving of reasons
 Article 8a(1) requires any decision to grant development consent to be accompanied with a reasoned conclusion and any environmental conditions attached.
 Article 8a(2) requires that any decisions for refusal state the main reasons for refusal
Per Fisher, Scotford and Lange (2019) these obligations to provide reasons are important for two reasons:

1. Without reasons, it is very hard to challenge a decision

2. The information and reason requirements of Articles 8 and 9 allow for post-decisionmaking monitoring
 Arabdijeva (2016) explains that:

Buy the full version of these notes or essay plans and more in our Environmental Law Notes.