With the announcement of the Government’s upcoming legislative plans in the Queen’s Speech, Environmental Impact Assessments (EIAs) are once again facing change in the near future. As EIA practitioners know, making predictions about what will happen is a difficult job, and the prospect of regulatory change poses two very disparate options for the future.
For many years, the English approach to EIA has been in question, with critics from varying backgrounds citing issues with the existing system. Now, the Levelling-Up and Regeneration Bill (LURB) has given us the first substantive insights into what we should expect. The question now is whether the proposals in front of us will be a positive change, or if there is a better alternative which ought to be considered.
What do we know about the Government’s proposals?
Since 2016, the Government has been clear about its intentions when it comes to EIA; key ministers (including the current Prime Minister) have portrayed the existing system as slow, inefficient, and overly demanding on a planning system which is rarely seen as dynamic, modern, or effective at delivering government goals.
Years of stagnation and delay have seen proposals mooted in abstract and uncertain terms, without clarity about exactly what to expect. The Government’s ‘Planning for the Future’ white paper in August 2020 suggested a move to “a quicker, simpler framework” and for a period of time, the Government’s favoured approach appeared to be based on different rules in different designated zones. Promises of a policy consultation on EIA were never fully realised. Ultimately, plans fell into abeyance when political disapproval for the policies made them too unpalatable to progress further.
The LURB has begun to give us clearer answers, though areas of uncertainty remain. For now, as the debates and discussions begin in Parliament, there is enough information to get the first substantive understanding of what proposals are likely to mean for environmental professionals.
Though the Bill and its explanatory notes provide more details about what to expect, the proposed approach to Environmental Outcomes Reports (EORs) is that:
- The Secretary of State will set ‘specified environmental outcomes’ which must be assessed against during relevant consents and plans.
- These environmental outcomes should be set to align with the Government’s Environment Improvement Plan and long-term legally binding environmental targets (and their interim targets).
- For relevant consents and plans, an EOR will be required, or consent may not be granted.
- The EOR will measure anticipated environmental effects of the plan against the specified outcomes, identifying suitable steps to (a) increase the extent of an outcome being delivered (b) avoid the effects of not delivering an outcome (c) mitigate unavoidable effects of not delivering an outcome (d) remedy the effects of not delivering an outcome which cannot be mitigated and (e) compensate for the effects of not delivering an outcome which cannot be remedied.
- The EOR will be considered during the process for approving the relevant consent or plan.
While the Bill gives us a first glimpse of how the new process is likely to operate, a fundamental level of detail is still absent. Most evident in the Bill is the Government’s shift of focus away from addressing environmental harms to securing environmental outcomes, following similar shifts in the Environmental Principles Policy Statement and the DfE’s Sustainability and Climate Change Strategy.
What questions remain unanswered?
Beyond the vague outline of a process, a number of crucial questions remain. Chief among them are how the two key terms in the Bill, ‘specified environmental outcomes’ and ‘relevant consents and plans’, will be defined. Without knowing when EORs will be mandated and the scope of what they will be able to consider, it will be difficult to know whether the future of EIA is a positive one.
Given the importance of planning systems for so many of the environmental objectives underpinning the Government’s 25 Year Environment Plan, Net Zero Strategy, and long-term targets, the scope of EORs and the environmental outcomes they consider will be particularly critical.
Where one of the key contentions of proposals put forward under the Government’s white paper in 2020 was around different zones and where EIAs would apply, the question of what constitutes a relevant consent or plan will be vital to the Bill’s EOR approach. Regulations will be able to set definitions for two categories of relevant consents and plans: in Category 1, EORs will always be required, whereas for Category 2, an EOR will be required where certain criteria set out in those regulations apply.
The extent of the regulations and what they will be able to determine is expansive. Regulations will also be able to set out rules on the content or form of EORs to ensure consistent reporting, as well as identifying the weight that should be afforded to EORs during the subsequent decision-making process. These regulations will be subject to consultation, either with the public or with public bodies for specialist and technical issues.
Ultimately, it will fall to secondary legislation to provide the details we need, and much of the debate about the future of EIA will be delayed until the Government sets out the specifics of its vision. Parliamentary debates are likely to give us an early indication, though the full particulars may still be far away. In the interim, environmental professionals have a key opportunity to present their own visions for how EIA should function and the role it should play.
Is there another way?
As always, expertise from environmental professionals will be critical to ensuring a policy which works and reflects the interests of science and nature. The long history of EIA and the criticisms it has faced have naturally led to conversations about the way it ought to be, with competing approaches and visions raised by different parts of the sector. Despite multiple attempts, past proposals have not managed to capture a vision for the future of EIA that unites the profession and other interests in the EIA process.
Our EIA community has risen to the challenge of contemplating the nuances and technical demands of EIA’s future, bringing together expertise from different professionals and backgrounds. In the coming months, as the debate in Parliament continues and more details emerge about the Government’s vision for the future of environmental impact assessments, our community will release its own thought leadership on the future of EIA.