Challenges of Environmental Impact Assessments

Before certain projects can be approved they may have to be subject to an Environmental Impact Assessment and/or an “appropriate assessment” under the Habitats Directive.  Determining whether such detailed consideration is necessary is a key question, with significant implications for the cost and time involved in the approval process and the likelihood of gaining consent.  Most major projects will have some negative environmental effects, but developers nowadays will often include in their proposals various ways of mitigating or compensating for these.  A major issue that has now arisen is how far these proposed measures can be considered at the preliminary stage of deciding whether a project requires a full assessment, as opposed to during that assessment itself.

These essays ask you to consider aspects of this issue in relation to the EIA process.

When does a project need an EIA?

Introduction

Environmental impact assessment is a process informs rational decision making while carrying out projects with the sole aim of protecting the environment (Glasson et al 1999). The evolution of an EIA is influenced by the ever-changing needs of the decision makers to devise means through the planning and decision-making process that will ensure environmental conservation. The findings of an assessment are organised in an environmental statement that includes measures to reduce, remedy or mitigate the negative impacts[1].  This paper seeks to examine and locate at what point the decision makers will require a full assessment of the project during the decision-making process and not taking the familiar route where an environmental impact assessment goes hand in hand with project authorization without considering the early stages of scoping and screening.[2]

An EIA must have goals and objectives it intends to achieve, and these should be taken into consideration and dealt with in full context during the decision-making process to ensure that an EIA achieves its goal.

In most cases, an EIA is meant to inform decision makers about the effects a project is likely to have on the environment and clearly set out ways how these effects will be mitigated or their effects on the environment reduced with the sole purpose of protecting the environment. An Environmental impact assessment is an important tool that decision makers use to make informed decisions on matters of environmental conservation though they are not bound by it. (Blackmore et al 1997) Considering that an EIA is not is not a decision-making process, there is a need to identify where it fits in the actual decision-making process as an aid to authorising bodies during the process of making decisions about project authorisation.[3]

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The decision-making process starts from screening up to monitoring and evaluating the project to identify the level of compliance with the environmental rules and regulations that concern environmental conservation. This is to identify the effectiveness of the mitigating measures that were provided for in the EIA or if they were implemented or not therefore the process of decision making doesn’t stop until the project has come to an end (Weston et al 2000). [4]

During Decision making in the EIA process, the stage an EIA is at informs the decision for example during the Screening stage, the planning authority can determine whether an EIA is necessary for that project, during Scoping, attention is shifted to the environmental impacts that should be considered if it has been determined that the project needs an EIA. Then the planning authority must estimate the magnitude of the environmental impacts by predicting the extent of the effects and Assess if the impact will be significant or negligible. If the impact will be significant, there must be mitigation measures put in place to reduce it and when all this is included in the EIA, the planning authorities must review the document and certify that the environmental statement is satisfactory. If it is adequate, then a decision must be made if the authorities should authorise the project or not. When the project is up and running, the planning authority must monitor and evaluate if the predicted impacts were accurate and if the mitigation measures that were provided for in the EIA have done what they were supposed to do.

This paper examines whether a project needs an EIA or not and which environmental impacts need assessment based on the statute provisions therefore my focus will be on the screening and scoping stages. The guide is set out in schedule 2 of the Town and Country Planning (Environmental Impact Assessments) Regulations (Scotland) 2017. The planning authorities are responsible for identifying projects that may cause significant effects to the environment however the term significant is relative.

EIA and institutionalisation

The environmental impact assessment process has been institutionalised through setting out provisions in both the national and international legislation and this acts as a yard stick to guide the courts and decision makers in the planning process. These guides identify which projects must carry out an EIA and those that may not need it based on the discretion of the decision makers considering the significance of the effect the project will have on the environment. The environmental protection act of 1990 prevents all action that may cause harm to the environment through controlling pollution and the secretary of state is given the discretion to grant authorisation if the application commits to comply with the conditions included in the licence (Environmental protection act 1990)[5].

The EIA directive has an updated criterion in the areas of screening, scoping, reporting, monitoring, time limits and penalties. These changes must be followed by the member states to ensure efficiency and effectiveness of the legislation. The need to ensure environmental protection and promoting human health and dignity is seen in the assessment requirements that decision makers must consider before giving consent for projects.

The Conservation Regulations consider the protection of European sites and protected species. The decision makers must ensure that the natural habitats are protected. Permits should only be granted if the planning authority is satisfied that the proposed projects conform to the provisions of the directive and if there is any violation of the regulations, the permit should be revoked. (Conservation Regulations 1994)[6]

  THEORIES IN THE ENVIRONMENTAL IMPACT ASSESSMENT PROCESS

Bounded rationality theory

There is a need for discretion while making legitimate planning decisions to exercise rationality since environmental planning is largely a rational process aimed at addressing public interests. Rationalist behavioural theory informs most of the planning decisions. Bounded rationality is used to select a rational choice that considers the limitations the decision maker faces cognitively in knowledge. Bounded rationality concerns itself mostly with the actual decision-making process and the decisions made. Theories of bounded rationality can be generated by striking a compromise in the alternatives the decision maker is presented with Instead of having a fixed alternatives that the decision maker can choose from, there have to be strategies put in place to deal with the uncertainties that the decision seeks to cover  and the process for seeking alternatives in our case is the responsibility of the project owner. The decision maker must consider the strategies suggested for mitigation and ensure that they achieve the primary goal of protecting the environment.

Max Weber a behavioural theorist, argues that rationalism informs factual decision making. The logical perspective that can be tailored to an individualistic way of thinking in the decision-making process allows discretion whose concepts are rooted in the frame-critical analysis which considers the combination of facts, values, theories and interests while making decisions which are believed that in most cases consist of personal views.[7] Therefore, framing informs the planning theory and helps the planning authorities to understand different thought processes and strategies, which can be vital in the decision-making process. Human behaviour and decision making is not always influenced by the pursuit of social rewards but by the vast amount of information one has about a topic because human beings are always cautious that inadequate information can result into errors. There is a limit imposed on rational behaviour because there is a tendency to act on situations that will satisfy minimum requirements needed to achieve a set goal therefore there  less focus is put on maximisation in decision making [8].Bounded rationality is believed to be a big influence on the process of strategic decision making which is vital for environmental sustainability considerations in the decision-making process. The number of people involved in this process and the context in which the decision is made (project or strategic level) weakens the ability to predict environmental consequences[9]

Procedural planning theory

There is an ongoing debate between modernist and contemporary planning theories. contemporary planning theory encompasses multiple theories of knowledge, which gives planners the ability to consider different provisions involved in planning and make informed rational decisions. Not all provisions are genuinely going to inform the planning authority’s decisions because some are meant to promote personal agendas. Faludi’s theory recognises steady economic growth that sometimes causes social distress when its missing and this impairs human growth. ideally this theory is tailor made for the structure that planning occupies in the era of industrialisation. Planning doesn’t have to be driven by values, but it should act as a tool for social communication to help make decisions that affect the functionalities of the society and the environment. Planners need to know the environment of the that they are operating in. institutionalization aids them to make rational choices.[10]

The relationship between an EIA and these theories

The need for Environmental impact assessment is rooted far back in the 1960s when industrial revolution was at its peak which caused concern for the environment and the harm that was happening to it. The public was barely involved in the decision-making process because everything was very scientific and technical which limited public participation. During this period, the school of theory was dominated by rationalism. USAs national environmental act of 1970 gave popularity to EIA and most of its ideologies are being used in the world like the use of environmental impact statements which is the same as the environmental statement in the UK. The scientific simulation models are very complex in that decision makers prefer a simple analysis that can be understood for easy decision making however these complex models if understood by the planning authorities, they offer an insight into the options that decision makers must consider on what they are willing to make trade-offs on. [11]Administrative decision making addresses the structural setting where the decision is being made and the behaviour of the decision maker and these two aspects play a very important role in the whole decision-making process

The nature of a project and the need for an Environmental Impact Assessment

At the screening stage, the planning authority decides whether a project needs an EIA or not and this decision is based on the impact a project is likely to have on the environment. The effect should be considered significant which remains debatable and very subjective. The standard set out in the 1988 EIA procedures gives an insight on what projects need an EIA and those that don’t. For some projects, the need for an EIA is mandatory based on the nature of their operation and this leaves those other projects that must go through the ‘’significant effect’’ test at the discretion of decision makers to determine the significance of this effect on the environment. If a project requires an EIA, a project developer submits an environmental statement which should include reasonable information that allows decision makers to assess the project’s significant effect to the environment. The term significant is the centre of the decision making process for the projects that need the impact assessment and this hasn’t been clearly defined in the literature available however, Beanlands & Duinker 1984 define it as a measured change on the environment  that can be predicted and should be taken into account during the decision making process depending on the changes its likely to cause and the accuracy of the prediction. [12]

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Scoping is the other way how decision makers can decide if a project needs an EIA or not. The rationale behind scoping is to ensure efficiency in the decision-making process and exercise precautionary measures in respect to any activity that may be harmful to the environment. The planning authority would rather scope the anticipated issues in the decision-making process rather than neglect them and have to deal with the serious consequences that come with environmental degradation and harm. Glasson et al   define scoping as a way of determining what alternatives or mitigation measures are key in the possible impacts suggested by the developer. If there is no scoping done, or its done inefficiently, there is a real risk of missing indicators of the serious negative effects that the project may have on the environment however on the other hand a great deal of time may be spent on trivial matters which may delay the project for no apparent reason. Scoping is a core element in the process of decision making regarding whether a project needs a full assessment or not, but it has to be done diligently to avoid time wasting.[13]

REFERENCES 

• Blackmore, R., Wood, C. and Jones, C.E., 1997. The effect of environmental assessment on UK infrastructure project planning decisions. Planning Practice & Research, 12(3), pp.223-238.
• Weston, J., 2000. EIA, decision-making theory and screening and scoping in UK practice. Journal of Environmental Planning and Management, 43(2), pp.185-203.
• Glasson, J. and Therivel, R., 2013. Introduction to environmental impact assessment. Routledge.
• Town and Country Planning (Environmental Impact Assessments) Regulations (Scotland) 2017
• EIA Directive 2011/92 (as amended by Directive 2014/52)
• Conservation (Natural Habitats, etc.) Regulations 1994 (SI 1994 No.2716)
• Nilsson, M. and Dalkmann, H., 2001. Decision making and strategic environmental assessment. Journal of Environmental Assessment Policy and Management, 3(03), pp.305-327.
• Pettigrew, A.M., 2014. The politics of organizational decision-making. Routledge.
• Case C-323/17 People Over Wind, Peter Sweetman v Coillte Teoranta [2018] ECR I-244
• Gillespie v. First Secretary of State and Bellway Urban Renewal Southern [2003] EWCA Civ 400, [2003] Env LR 30
• R (on the application of Catt) v. Brighton and Hove County Council [2007] EWCA Civ 298, [2007] Env LR 32
• R (on the application of Hart DC) v. Secretary of State for Communities and Local Government [2008] EWHC 1204, [2008] 2 P & CR 16
• Broadbent, R., and Caine, C., A fresh start for screening under the Habitats Regulations: Case c-323/17 People Over Wind, Peter Sweetman v Coillte Teoranta [2018] Ecr I-244, (2018) Env. LR 20(3) 163-170
• McGillivray, D., Mitigation and screening for environmental assessment, [2011] JPL 1539.
• Tromans, S., Environmental Impact Assessment, 2nd ed., paras.3.123-3.146
• Thompson, S., Treweek, J.R. and Thurling, D., 1997. The ecological component of environmental impact assessment: a critical review of British environmental statements. Journal of environmental Planning and Management, 40(2), pp.157-172.
• Wood, G. and Becker, J., 2005. Discretionary judgement in local planning authority decision making: screening development proposals for environmental impact assessment. Journal of Environmental Planning and Management, 48(3), pp.349-371.
• Rydin, Y., 2007. Re-examining the role of knowledge within planning theory. Planning theory, 6(1), pp.52-68.
• Allmendinger, P., 2002. Towards a post-positivist typology of planning theory. Planning theory, 1(1), pp.77-99.
• Alexander, E.R., 2005. Institutional transformation and planning: from institutionalization theory to institutional design. Planning theory, 4(3), pp.209-223.
• Munn, E., 1979. Environmental impact assessment.
• Beanlands, G.E. & Duinker, N. (1984) An ecological framework for environmental impact assessment, Journal of Environmental Management, 18, pp. 267–277.
• Act, E.P., 1990. Part IIA Contaminated Land. DETR Circular, 2, p.2000.
• Snell, T. and Cowell, R., 2006. Scoping in environmental impact assessment: balancing precaution and efficiency? Environmental Impact Assessment Review, 26(4), pp.359-376.

[1] Thompson, S., Treweek, J.R. and Thurling, D., 1997. The ecological component of environmental impact assessment: a critical review of British environmental statements. Journal of environmental Planning and Management, 40(2), pp.157-172.

[2] Glasson, J. and Therivel, R., 2013. Introduction to environmental impact assessment. Routledge.

[3] Blackmore, R., Wood, C. and Jones, C.E., 1997. The effect of environmental assessment on UK infrastructure project planning decisions. Planning Practice & Research, 12(3), pp.223-238.

[4] Weston, J., 2000. EIA, decision-making theory and screening and scoping in UK practice. Journal of Environmental Planning and Management, 43(2), pp.185-203.

[5] Act, E.P., 1990. DETR Circular, 2, p.2000.

[6] Conservation (Natural Habitats, etc.) Regulations 1994 (SI 1994 No.2716)

[7] Wood, G. and Becker, J., 2005. Discretionary judgement in local planning authority decision making: screening development proposals for environmental impact assessment. Journal of Environmental Planning and Management, 48(3), pp.349-371.

[8] Pettigrew, A.M., 2014. The politics of organizational decision-making. Routledge.

[9] Nilsson, M. and Dalkmann, H., 2001. Decision making and strategic environmental assessment. Journal of Environmental Assessment Policy and Management, 3(03), pp.305-327.

[10] Rydin, Y., 2007. Re-examining the role of knowledge within planning theory. Planning theory, 6(1), pp.52-68.

[11] Munn, E., 1979. Environmental impact assessment.

[12] Beanlands, G.E. & Duinker, N. (1984) An ecological framework for environmental impact assessment,

Journal of Environmental Management, 18, pp. 267–277.

[13] Snell, T. and Cowell, R., 2006. Scoping in environmental impact assessment: balancing precaution and efficiency? Environmental Impact Assessment Review, 26(4), pp.359-376.