Planning Law and Environmental Impact Assessment (LAW 8047)
QUESTION
“The purely procedural and narrow view of Environmental Impact Assessment…represents a simplistic view of the instrument that has to some extent been overtaken by a recognition of its broader functions, particularly those which reflect environmental governance strategies of participation and social learning” (Holder).
Discuss, including in your discussion an appraisal of the extent to which the English Courts recognized the broader functions of Environmental Impact Assessment in their decisions.
INTRODUCTION
Environmental Impact Assessment (EIA), when employed in its narrow form, describes a mere procedure for decision making in carrying out certain projects. It is described as a third form of environmental control – an addition to the private and ‘command and control’ mechanism – which deals with processes but does not specify outcomes1. A more expansive view considers it ‘a panacea to planning’ because it provides for both the assessment of environmental impacts of projects prior to their commencement and the involvement of the public as well as consultation of experts in the process2.
Holder posits that it plays a vital role in environmental protection by creating a form of governance which includes various governmental and non-governmental persons in decision making3. A less positive opinion regards EIA as a means by which developers obtain a stamp of environmental approval for their projects4. The true purpose of EIA cannot be deduced from a narrow perspective which looks only at the process but overlooks the intent.
This essay examines EIA as a procedure which forms the framework for regulation making to ensure that environmental considerations influence developmental decisions. It will analyse EIA, firstly as a procedure and then as a strategy of environmental governance. An assessment of the position of English courts with regard to both views of the EIA and the adequacy of legislation in force for the realization of the broader functions will form the background of this analysis.
EIA AS A STRATEGY OF ENVIRONMENTAL GOVERNANCE
EIA AS A PROCEDURE
In this section the legislative background of the EIA in the UK and some aspects of the procedure will be discussed. Directive 85/337/EC is the first formal legislation on EIA (amended by Directive 97/11/EC). The main UK Regulation5 for its implementation is the Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 (SI 1999/293) now amended by the Town and Country Planning (Environmental Impact Assessment) (Amendment) Regulations 2006 (SI 2006/3295)6.
The thrust of the Directive is that there should be an assessment of the potential effects of certain public and private projects on the environment as an aid to decision making for development planning7. The EIA Directive was further developed by Directive 2003/35/EC to the effect that the provisions of the Aarhus Convention now qualify the manner of implementation of EIA in member states8.
The UK was notably unwilling to make changes to its planning procedures but chose the softer approach permitted by the EC which involves incorporation of EIA processes into existent planning rules. The UK had argued during the deliberations on EIA that the planning law of the country was adequate for environmental protection and any additional rules were therefore unnecessary9. The procedure, thus, appears to be an EC concept and a purposive interpretation and implementation would hinge on a high degree of acceptance by member states.
In determining projects that would require EIA the Directive classifies projects into Annexes I and II. Annex I projects are a specified list which mandatorily require EIA. For Annex II projects the criteria is their likely significant effects on the environment which is to be evaluated on the basis of their nature, size or location according to the discretion of member states. In the UK, a two-tier approach employs the use of set thresholds and/or evaluation on a case-by-case basis to determine whether or not a project is exempt from EIA10. The application of thresholds by English law stretches the use of the procedure in a rather unpredictable manner.
The EC provision for classification does not specify criteria with enough precision. The wide discretion left to member states in determining Annex II projects has led to unsatisfactory implementation of the Directive. The classification of projects which is regarded as a core of the Directive has been the subject of much litigation within and between member states11.
In the case of Kraaijeveld v. Gedeputeerde Staten van Zuid-Holland12, the Netherlands challenged the applicability of the Article 4(2) provisions on Annex II projects arguing that it was too imprecise to be directly effective. The ECJ held that, on the contrary, limits had been sufficiently set by Article 2(1) which stipulated that “… projects likely to have significant effects on the environment …are made subject to …an assessment”.
In the British case of Berkeley v Secretary of State for the Environment Transport and the Regions and London Borough of Richmond upon Thames13 the application of criteria for determining the need for EIA was in issue. A structure which was proposed and which would overlook the River Thames was below the minimum threshold but the Applicant appealed the grant of consent without EIA based on the likely significant effects of the project. The Court of Appeal held that though the national law had set out other criteria, besides size, for deciding on the need for EIA, it was not to be applied to each and every case and size alone could be considered.
Referring to Kraaijeveld14 the court further stated that the idea of setting thresholds was in fact to exempt some projects from the need for EIA. This interpretation may not have been intended either by the EC or by the ECJ in this case but the language of the Directive appears to lack sufficient clarity to maintain consistency in interpretation15. Admittedly, the setting of thresholds ensures that EIA is not carried out indiscriminately so as to make the planning system unnecessarily cumbersome16. That notwithstanding, a purposive approach to its interpretation would lay greater emphasis on its applicability where significant effects are likely and less on exemptions.
From the foregoing, it is pertinent to ask what constitutes ‘significant effect’. Annex III of the Directive lists the criteria which the decision maker must consider and DETR circular 2/99 further gives direction on factors for the determination of significance. Despite these legislative provisions, significance of effect remains a matter for debate.
In the Swale case17 the grant of planning permission without EIA was challenged because the project was considered to have potentially significant effects on the environment. Brown J in his decision stated that the determination of significance (from which the need for EIA or otherwise is ascertained) is a question of fact and degree not law; the courts, therefore, cannot challenge the decision of the planning authorities on this issue.
This decision suggests unwillingness by the court to embark upon the difficult task of discerning the extents and limits of ‘significant effect’ in the face of unspecific legislative provisions. According to Grant, the classification of projects “is a straight question of law”though recourse may be had to fact and degree for purposes of applying the law18. This view is basically supported by a later case which would be discussed in analysing the broader functions of EIA.
Proper determination of environmental significance in development projects is necessary if EIA is to function as more than a rubber-stamp procedure. In this section the wider scope of EIA will be analysed. The two subdivisions under the section will focus on public involvement and then environmental considerations in decision making.
The judgement in the Swale case was overturned by the ‘Big Yellow’case19 where it was stated that the classification of projects is a question of law not fact but recognized that conclusions reached by the planning authorities on significance of effects remained a question of fact and therefore not reviewable. The earlier mentioned Kraaijeveld case was influential in this decision, especially with its reference to the ‘wide scope and broad purpose’ of the EIA Directive20.
EIA is considered as heralding an approach to governance less dependent on ‘command and control’ and more on “education, persuasion and social learning as a means of achieving …results”21. Its wider scope can be succinctly described in the words of Holder as the ‘ecologization’and ‘regulation’of decision making which is achievable through a systematic implementation of the provisions of the Directive on public participation and consultation. When employed in this broad manner, it goes beyond aiding decisions on development planning for pollution control purposes to the implementation of the principle of sustainable development22.
The relationship between environmental assessment and sustainable development has been recognized by the International Court of Justice, albeit this has arisen mostly in dissenting judgements23. The precautionary principle has been described as ‘the most clearly stated sustainability principle’24. EIA as a tool for risk analysis plays a vital role in the employment of the precautionary principle in environmental decision making which then aids the actualization of sustainable development25. In promoting public participation and consultation in the EIA process the EC aims at achieving this overarching objective of sustainability.
PUBLIC PARTICIPATION:
Public participation in EIA is procedurally achieved by the publication of the Environmental Statement and its accompanying non-technical summary such that it is available for discussion26. The public as well as experts are expected to be involved in an iterative forum with the planning authorities and developers which would include the discussion of both effects of projects and alternatives to mitigate negative environmental impact27. In earlier English cases like R v Poole Borough Council, ex parte Beebee28 public participation as facilitated by the production of an Environmental Statement was considered as being of little consequence.
The landmark case of Berkeley v Secretary of State for the Environment29 sees a radical change of decision which accords more with the Directive. Here the proliferation of paperwork constituting information on the proposed project was considered inadequate to meet the requirement for a formal Environmental Statement. The importance of public opinion was also stressed in this case. The significance of this decision is somewhat undermined by the fact that the public is sometimes represented by the local authority or elected councillors for planning purposes. It is suggested that people who will be directly affected by planning decisions should be the ones involved in the public consultation process30.
The value of the Environmental Statement may, however, be overrated by the courts. This document issues from the developer and can be manipulated to present the project positively while glossing over the negative environmental concerns. A classical example is the proposal for the Kentish Flats offshore wind farm where the non-technical summary was used to ‘sell’ the attractive prospects of the project31. This may lead to bias in decision making and impaired perception of environmental issues. Conversely, the developer takes responsibility for ensuring that relevant information is collated which can encourage social learning and reflexive commitment to environment-friendly development32.
ECOLOGIZATION OF DECISION MAKING:
The Directive may have succeeded in creating awareness on the importance of assessing environmental impacts but it makes no stipulation for the course of action to be followed subsequently33. This is a flaw which has contributed to a purely procedural view of its functions. The UK implementation has been weakened by the resultant uncertainty as to its scope and limits34. The English courts in their characteristic ‘semantic and literalistic approach’ usually limit adherence to procedural correctness35.
The Belize case36 illustrates the effect of a semantic approach to interpreting the Directive; it also reflects the unwillingness of English courts to challenge administrative decisions. In this case the procedure had been followed and there was an Environmental Statement but the information in the Statement was incorrect. The planning permit which was granted was upheld, however, by a majority of the Privy Council on the grounds that decision making for planning purposes was a question of fact not law. The veracity or otherwise of the information given to the planning authority was not to be adjudicated upon by the courts.
English courts prefer to defer to the expertise of administrative bodies37. This attitude may be laudable as a means of ensuring neutrality but the resultant decision could negate the intent of EIA. According to Stookes, EIA “presents an opportunity to shift the present emphasis away from economic benefit towards ensuring that socio-environmental impacts are properly integrated into land use proposals, decisions and activities”38. This is an apt description of the ecologization of decision making. When, as in the Belize case, the courts continue to emphasize procedural correctness to the detriment of ensuring that the environment is considered in decision making, EIA remains a procedure.
Is the English court system completely to blame for inadequacy of EIA implementation? The discourse so far has examined some loopholes in the language of the Directive and it may be considered that these may pose hurdles to purposive interpretation for national courts. As pointed out by Carnwath the use of terms such as ‘have regard to’ in the Directive does not have much practical effect in ensuring realization of EIA objectives39. The broader purposes of EIA may therefore not be achievable by the existent legislation.
REALIZING ENVIRONMENTAL GOVERNANCE
SEA is described as an expansion of EIA because it is employed for the assessment of plans and programmes which would usually precede projects40. Some writers opine that EIA is applied a little too late in the development process to meaningfully affect the environment, SEA is thus seen as a more beneficial mechanism41. An important provision is Article 10 of the SEA Directive42 which provides for post-assessment monitoring43.
Notably, many authors wrote extensively on the great attributes of SEA before the Directive came into force; it was largely regarded as the emerging solution to the shortcomings of EIA44. Due to lack of firmness and clarity, this belief in its efficacy has waned since the coming into force of the Directive. Firstly, there is uncertainty over the exact class of plans and programmes to be assessed under the Directive45. Secondly, though it allows for consultation and public input at a much earlier stage than EIA, public participation is difficult to achieve46.
The problems adduced in SEA implementation are to an extent a mirror of those found in EIA implementation by English courts. In appraising EIA in the UK, Stookes states thus: “Certainly the rationale behind EIA is still not fully understood”47. This essay perceives the issue differently and rather holds the view that the courts are careful not to act ultra vires their statutory powers in order to aid a purposive approach to EIA.
Both the SEA and EIA Directives in their present form may not achieve more in any but the more radical national courts. The creation of environmental courts could achieve greater success in realizing the broader functions. Opposition to environmental courts opines that it is contrary to the objectives of public participation because it will necessarily function through “elite decision-making bodies that work to exclude lay people”48. This argument overlooks the potential utility of these expert bodies for ensuring proper public participation in addition to other governance goals.
CONCLUSION
EIA creates opportunities for an integration of environmental considerations into development albeit at the project proposal stage. Though the legislative provisions which dictate its existence and functions describe a procedure, it is increasingly being recognized as a source for establishing and actualizing environmental values to the end that development should be sustainable.
The English courts have been accused of considerable reluctance to embrace an approach which recognizes it as more than a procedure. Recent cases, however, evidence greater willingness towards the purposive interpretation despite the shortcomings of the legislation. SEA, theoretically, promises greater environmental governance realizations but EIA, if aided by adequate legislative and subsequent judicial support, has high potential as an aid to sustainable decision making.
BIBLIOGRAPHY
Books
Bell, S and McGillivray, D, Environmental Law, (Oxford: Oxford University Press, 2008)
Elworthy, S and Holder, J, Environmental Protection: Texts and Materials, (London: Butterworths, 1997)
Holder, J, Environmental Assessment, (Oxford: Oxford University Press, 2004)
Holder, J and Lee, M, Environmental Protection, Law and Policy, (Cambridge University Press, 2007)
Hughes, D et al, Environmental Law, (UK: LexisNexis Butterworths, 2002)
Richardson, B and Wood, S, (eds.) Environmental Law for Sustainability, (Oxford: Hart Publishing, 2006)
Stallworthy, M, Sustainability, Land Use and Environment, (London: Cavendish Publishing, 2002)
CASES
Alliance of Conservation NGOs v Dept. of the Environment and Belize Electric Company Limited [2004] Env LR 38
Berkeley v Secretary of State for the Environment [2001] Env LR 16 (Berkeley No. 1)
Berkeley v Secretary of State for the Environment Transport and the Regions and London Borough of Richmond upon Thames [2001] ECWA Civ 1012
Kraaijeveld v. Gedeputeerde Staten van Zuid-Holland [1996] ECR 1-5403
New Zealand v France ICJ, 22 September 1995
R (Goodman and Hedges) v London Borough of Lewisham [2003] Env LR 28
R v Poole Borough Council, ex parte Beebee [1991] JPL 643
R v Swale Borough Council and Medway Ports Authority ex Parte The Royal Society for the Protection of Birds [1991] 1 PLR 6
JOURNAL ARTICLES
Alder, J, ‘Environmental Impact Assessment – The inadequacies of the English Law’, (1993) JEL 203
Carnwath, R, ‘The planning lawyer and the environment’, (1991) 3 JEL 57
Grant, M, ‘Development and the protection of birds: The Swale decision’, (1991) 3 JEL 150
Ladeur, K and Prelle, R, ‘Environmental assessment and judicial approaches to procedural errors – a European and comparative law analysis’, (2001) 13 JEL 185
Levis, L, ‘The EIA Directive’, (1997) 6 RECIEL (1) 88
Sifakis, A, ‘Precaution, prevention and the EIA Directive’, (1998) EELR 349
Stookes, P, ‘Getting to the real EIA’, (2003) 15 JEL 141
Upton, W, ‘The EIA process and the directly enforceable rights of citizens’, (2001) 13 JEL 89
Upton, W, ‘The use of minimum size thresholds in Environmental Impact Assessment’, (2002) 14 JEL 331
1.Holder, J and Lee, M, Environmental Protection, Law and Policy, (Cambridge University Press, 2007) p.551-552
2.Elworthy, S and Holder, J, Environmental Protection: Texts and Materials, (London: Butterworths, 1997) p.418
3Holder, J, Environmental Assessment, (Oxford: Oxford University Press, 2004) p.6
4See fn.2
5Operative in England and Wales
6Applicable to England alone
7Bell, S and McGillivray, D, Environmental Law, (Oxford: Oxford University Press, 2008) p.40
8UN/ECE Convention on Access to Information, Public Participation in Decision Making and Access to Justice, Aarhus, 1998
9Alder, J, ‘Environmental Impact Assessment – The inadequacies of the English Law’, (1993) JEL 203
10Stookes, P, ‘Getting to the real EIA’, (2003) 15 JEL 141-151, p.146
11Levis, L, ‘The EIA Directive’, (1997) 6 RECIEL (1) 88
12[1996] ECR 1-5403
13[2001] ECWA Civ 1012 (known as Berkeley no.3)
14See fn.12
15Upton, W, ‘The use of minimum size thresholds in Environmental Impact Assessment’, (2002) 14 JEL 331, P.352
16Per Schiemann LJ, para.3, fn.13
17R v Swale Borough Council and Medway Ports Authority ex Parte The Royal Society for the Protection of Birds [1991] 1 PLR 6
18Grant, M, ‘Development and the protection of birds: The Swale decision’, (1991) 3 JEL 150
19R (Goodman and Hedges) v London Borough of Lewisham [2003] Env LR 28
20See fn.3, p.114-116
21See fn.1, p.553
22See fn.3, p.12, 56
23See New Zealand v France ICJ, 22 September 1995
24Dovers, S and Connor, R, ‘Institutional and policy change for sustainability’. In Richardson, B and Wood, S, (eds.) Environmental Law for Sustainability, (Oxford: Hart Publishing, 2006) (hereinafter referred to as Sustainability) p.46
25See fn.1, p.561. There is a contrary opinion on its precautionary abilities. This dissenting view regards it as preventive especially because of the classification difficulties of Annex II projects. The argument is made by Sifakis, A, ‘Precaution, prevention and the EIA Directive’ (1998) EELR 349
26Hughes, D et al, Environmental Law, (UK: LexisNexis Butterworths, 2002) p.216-217
27See fn.3, p.6, p.19
28[1991] JPL 643
29[2001] Env LR 16 (Berkeley No. 1)
30Upton, W, ‘The EIA process and the directly enforceable rights of citizens’, (2001) 13 JEL 89 at p.104-105
31See fn.1, p.563-567
32See fn.3, p.199ff
33See fn.6, p.433
34Stallworthy, M, Sustainability, Land Use and Environment, (London: Cavendish Publishing, 2002) p.135
35See fn.9, p.217
36Alliance of Conservation NGOs v Dept. of the Environment and Belize Electric Company Limited [2004] Env LR 38
37Ladeur, K and Prelle, R, ‘Environmental assessment and judicial approaches to procedural errors – a European and comparative law analysis’, (2001) 13 JEL 185 at 192
38See fn.10, p.141-142
39Carnwath, R, ‘The planning lawyer and the environment’, (1991) 3 JEL 57 at p.7
40See fn.3, p.164
41Richardson, B and Razzaque, J, in Sustainability, p.180
422001/42/EC
43See fn.1, p.601
44See fn.34, p.178ff
45See fn.6, p.469
46See fn.1, p.598
47See fn.10, p.148
48See fn.41, p.187