As a general rule, Environmental Impact Assessments (EIAs) and associated Environmental Statements (ESs) have tended to grow in length and complexity over the years and this can place an extra burden on those charged with preparing and reviewing them. It can also make it difficult to simply locate key information. The need for a robust evidence base is clearly vital for EIAs but the issue about how to make sure that EIAs and ESs are “proportionate” to their function and appropriately structured to address the relevant environmental issues is one that is discussed often.
In response to this debate, IEMA’s ‘Delivering Proportionate EIA’ (2017) suggests that the production of “disproportionate EIA” is a consequence of the well-intended “evidence-based and precautionary approaches”, and the “cultural context embedded within the UK consenting system”. At the same time, the legal need to produce an array of different environmental assessments, such as Habitats Regulations Assessment (HRA) under the Habitats Directive or Water Framework Directive (WFD) Compliance Assessment under the WFD, creates an increasing amount of reporting to be undertaken and reviewed. Both result in a burden to developers and regulators and can lead to complex consenting processes.
There has been a very noticeable push from EIA practitioners to “increase proportionality”. Measures such as early stakeholder consultation, effective scoping procedures, and clear and easily navigable presentations of information are becoming the norm and are crystallised by IEMA (2017). The new 2017 EIA Regulations also now requires coordination between EIA and HRA processes, in an attempt to streamline assessments.
Despite these measures, the desire to reduce the complexity and amount of environmental reporting still persists. One of the major reasons for this is that the environment is a common area for legal/judicial challenge for those opposed to development. This can make regulators and advisors cautious in scoping out issues or in accepting more limited environmental baselines or assessments with less evidence.
In addition, as much of the UK coastline is designated as European sites, the Habitats and Birds Directives are particularly important considerations for most marine authorisation decisions. In the light of case-law such as the Waddenzee judgement there has been a tendency to set high standards on the certainty of effects (or absence of effects) which can then necessitate the accumulation of detailed evidence to support HRAs and development applications.
For marine developments particularly, there can also be a lack of scientific understanding and requirement to use ‘best available’ data which can cause the scale and complexity of assessments, and the evidence base on which they draw, to increase.
There is not a single simple solution to these issues but some potential solutions are outlined below.
Greater application of adaptive management principles is one method to resolve residual uncertainty of effects and provide necessary reassurance to regulators. It promotes flexible decision making where management actions can be adjusted once outcomes become better understood. There are challenges associated with applying adaptive management that have been recognised widely across all environments (including extensively across the published literature) but it is a proven planning solution for dealing with issues of uncertainty in the marine environment. Allowing for a greater reliance on adaptive solutions could foreshorten planning processes and lead to more manageable evidence requirements. This is particularly the case where the environmental risks associated with scientific uncertainty are small and reversible.
One example of its use was in a 2011 decision to allow Wightlink Ltd to operate new larger vessels across the Solent from Lymington to Yarmouth. The anticipated effects of the larger ferries on intertidal habitats were small but uncertain, and therefore a programme of adaptable intertidal restoration was put in place. That restoration could be altered in scale or duration depending upon the scale of any effects that ultimately arose from the new ferries.
Another example of its use is with the SeaGen tidal turbine installed in Strangford Narrows, Northern Ireland. Successful deployment of active sonar led to the removal of conditions relating to marine mammal observers and day-time only operation, as monitoring data demonstrated that risks could be controlled. Such monitoring forms part of an iterative learning process that helps advance scientific understanding and adjust policies and operations accordingly.
Signposting documents are also a mechanism for preventing excessive duplication of information in environmental assessments. This is an established practice for HRAs (or Shadow Appropriate Assessments) where sign-posting documents refer the reader to the location in an ES where necessary information can be found. This should arguably be further advocated as best practice and more widely adopted if streamlining of Environmental Statements is to be realised. However, care should be taken to tailor assessments to the specific but distinct requirements of different processes (e.g. differences in the consideration of mitigation between HRA (see People Over Wind judgement) and EIA (see Regulation 6).
More general solutions such as digital, interactive EIAs and supporting documents should help regulators navigate information, and has clear opportunities for streamlining by way of ‘click-able’ sign-posting. In addition, the online presence of data may facilitate the use of a central base of evidence, particularly post consent monitoring data (most of which currently does not enter the public domain). This might further improve scientific understanding and reduce the need for lengthy and complex evidence bases.
Ultimately, there needs to be consensus between the developer and regulator concerning how to manage residual uncertainty, and present information. In order to gain consensus, it is important for coordinated collaborative action across the environmental community, as advocated by IEMA. The guidance recommends bringing together representatives from planning authorities and wider consenting authorities with developers/consultants, academics, professional bodies, and lawyers. Examples of stakeholder workshops and training for statutory consultees are shown to be good ways to help adopt a shared vision of proportionality in environmental assessment. Much more of this is required to facilitate agreement between stakeholders on the acceptability of potential solutions.
Prepared by Jamie Oaten, Environmental Consultant.
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