Environmental Impact Assessment and Strategic Environmental Impact Assessment

Environmental Science and the Law – Environmental Impact Assessment – © Brian Foley, 2006.

ENVIRONMENTAL IMPACT ASSESSMENT AND STRATEGIC ENVIRONMENTAL IMPACT ASSESSMENT

 Reason and Theory Behind EIA

 Floating Power v. Affiliation to Other Regulatory Regimes

 Strategic Environmental Impact Assessment” (“SEIA”) – Main Difference?

1 Environmental Science and the Law – Environmental Impact Assessment – © Brian Foley, 2006.

Strategic Environmental Impact Assessment (“SEIA”)

 EIA as part of “final run”

 SEIA different – Planning and Policy - Directive 2001/42/EC - 21 July 2001 - 21 July 2004 deadline

 European Communities (Environmental Assessment of Certain Plans and Programmes) Regulations, 2004.

 Planning and Development (Strategic Environmental Assessment) Regulations 2004 (S.I. 436 of 2004)

o Not in notes – makes specific provision for SEIA in matters of planning law – i.e. development plans, regional guidelines etc.

 Not totally new – Development Plan - Local Area Action Plans and Regional Planning Guidelines – vaguely similar

 Also “environmental audit” in National Development Plan 2000-2006.

 Transboundary effects already considered in some EIA cases and in IPPC licence applications.

 SEIA required for listed “plans”

. town and country planning, . land use, transport, . energy, . waste management, . water management, . industry, . telecommunications, . agriculture, . forestry, . fisheries

 Planning issues dealt with under Planning and Development (Strategic Environmental Assessment) Regulations 2004 (S.I. 436 of 2004)

 Annex I / Annex II System in Directive – replicated in regulations (unlike for EIA)

 Concept of “significant effects on the environment”

o Precise scope left up to member states – we do it in Schedule 1 to the Regulations

 Obligations on the “competent authority” (i.e. who is responsible for the plan or programme) to prepare an environmental report prior to adopting any plan or programmes.

Must set out:

(correct typos on handouts !!!!)

. the contents of the plan or programme and its main objectives,

. the environmental characteristics of any area likely to be significantly affected by the plan or programme,

. any existing environmental problems which are relevant to the plan or programme

. the national, Community or international environmental protection objectives which are relevant to the plan or programme in question

. the likely environmental effects of implementing the plan or programme,

. the measures envisaged to prevent, reduce and offset any significant adverse effects on the environment,

. the envisaged monitoring measures.

 Non-technical summary required.

 Made available to public – consultation process (A.13)

. Role for other Member States

Environmental Impact Assessment “Proper”

 Terms - EIA and EIS

 The First EC Directive

o Directive 85/337 which required that certain projects to undergo EIA. o Later amended by later Directive 97/11/EC)

 Annex I / Annex II System

 Annex I - mandatory – e.g. Pipelines for the transport of gas, oil or chemicals with a diameter of more than 800 millimetres and a length of more than 40 kilometres.

 Annex II – discretionary

o Significant effect on the environment

o Left criteria up to member states

o Irish Problem – Commission v Ireland – exclusive reliance on thresholds not allowed

The Irish “Version” of EIA Rules

 Part X of the Planning and Development Act, 2000  Planning and Development Regulations, 2001  Dominant association with planning process – but some role in Waste and IPPC.

What Requires EIA?

 Parts I and II to Schedule 5 of the Planning and Development Regulations 2001.

Examples from Part I

. Integrated works for the initial smelting of cast iron and steel. . A line for long-distance railway traffic, or an airport with a basic runway length of 2,100 metres or more.

Examples from Part II

. Projects for the restructuring of rural land holdings, where the area to be restructured would be greater than 100 hectares. . Peat extraction which would involve a new or extended area of 30 hectares or more.

Sub-Threshold Development

If you have a development which is of a type listed in Schedule 5, but which does not meet the thresholds then you have to get EIA if the development is likely to have significant effects on the environment.

 Example:

Extraction of stone, gravel, sand or clay, where the area of extraction would be greater than 5 hectares.

EIA required if activity of that type is below threshold, but likely to have significant effect on environment.

 Factors to be considered – Schedule 7 PDR, 2001.

Characteristics of proposed development Size, use of natural resources, waste issues, pollution etc.

Location of proposed development Particular sensitivity of area

Characteristics of potential impacts I.e. what kind of impact is foreseen with regard to matters like magnitude, probability, duration, frequency and reversibility of impact.

Adverse effects only? O’Nuaillain v Dublin Corporation - Smyth J - NO!

Division of Decision Making Functions

 Planning Agency makes decision to require or not to require – how can courts review it?

 Deference

 Relationship with discretion

 Example A: EIA must take place in every case where red-bricks are used.  Example B: EIA must take place in every case where there may be a negative effect on the visual amenity of an area.

 Real example: Pipelines for the transport of gas, oil or chemicals with a diameter of more than 800 millimetres and a length of more than 40 kilometres.

Shannon Regional Fisheries Board v An Bord Pleanala

 Was a pregnant gilt a “sow”?

 Barr J, in the High Court, held that this was simply a matter of interpreting the statute, and therefore something which the Board had no particular expertise over.

 How about sub-threshold development and question of “significant effect on the environment”.

 What do you think in theory?

O’Nuaillain v Dublin Corporation

 Smyth J in the High Court held that the question of a “significant environmental effect” could be capable of objective determination and therefore that the Court was in as good a position as a planning agency to make a decision on the matter.

Special considerations in that case.

The Environmental Impact Statement

 The document itself  Governed by Article 94 of the PDR, 2001 – look to your notes – quite detailed.  Some matters required include

 Description of the development and measure envisaged to deal with adverse environmental affects

 Outline of alternatives studied by developer and reasons for choosing as he did

 Description of the production process used and estimates of type and quantities of emissions expected.

 A description of the aspects of the environment likely to be significantly affected by the proposed development, persons, fauna, flora, soil, water, air, climatic factors and the landscape, material assets, including the architectural and archaeological heritage, and the cultural heritage,

 Etc (see your handout – you may have to write one of these some day)

Scoping

 May be questions / worries about what information exactly is needed  Can “scope out” opinion of planning authority – preliminary submission  Article 117 of the PDR, 2001 allows a local authority to do this (i.e. when LA seeks to develop)  And s.173(2)(a) of the PDA 2000 for all other persons.

Decisions on the Adequacy of an EIS

 Kenny v An Bord Pleanala o Courts will not second guess such decisions on adequacy?

The Problem of Exempted Development

 Planning Dominance  Problem of exempted development?  Lasted even after Planning and Development Act, 2000

 Article 9(1)(c) of the PDR, 2001 - development cannot be exempted if it is of a type which must be subjected to EIA.

 Problem – sometimes decision as whether EIA is required requires an actual decision – i.e. sub- threshold development.

 But if its otherwise exempted – may never apply for PP such that matter never gets before the planning authority!

Dominant Association With the Planning Process and Sub-Threshold Development

 Use of EIA in IPPC and Waste

 Waste Management Act, 1996 (as amended) and the Environmental Protection Agency Act 1992 (as amended) empower the Minister to make regulations which may require that an EIS accompany certain applications.

 Waste Management (Licensing) Regulations 2004

 However – relates back to Part I and II of Schedule 5

 But here is also a concept of sub-threshold development which the IPPC/Waste EIA process does not take into account.

 Breach of obligations under EU law?

 The Directive - “development consent” is sought.

 R v North Yorkshire County Council ex parte Browne – the House of Lords held that any decision made by a regulatory agency which involves an original, independent examination of environmental issues would constitution “a development consent”.