Environmental Impact Assessments: Guidance Documents
Alastair Donald | 10 January 2007
Future Cities Project respond to DCLG’s consultation paper proposals from two publications on the subject of Environmental Impact Assessment (EIA)
This paper responds to two publications: (i) proposed amendments to existing Circular 2/99 on EIA, and (ii) new draft EIA procedural and good practice guidance to replace the current publication “EIA Guide to Procedures”.
The main changes proposed are to remove from the Circular definitions as to the main types of case likely to be subject to EIA, and the indicative criteria and that effectively operate as ‘triggers’ for alerting developers and their designers to the likely need for EIA. To counterbalance these changes, it’s proposed to amend EIA Procedural and Good Practice guidance, adding more expansive screening requirements. The changes are intended to reduce the likelihood of development being consented without prior screening to assess applicability of EIA, and to ensure that screening and any subsequent Environmental Statement (ES) are undertaken with reference to changes in European law and recent English case law. By extending the practical scope and application of EIA, the guidance aims to ensure the Government can ensure that new projects will be more responsive to its ambitions to deliver sustainable development.
This response rejects the notion that EIA can be a useful design tool and instead suggests it will intensify a contemporary design culture of oriented around risk aversion and low ambitions. We highlight the manner in which attempts to expand the scope of EIA and the burden of proof on developers will further undermine their willingness to consider ambitious and innovative projects in the face of the need to moderate the impact of development – or risk potential legal challenge. And by reinforcing a culture of risk aversion and recourse to legalities, we argue that EIA will strengthen trends towards greater bureaucratisation with consultations, checklists, and audit trails a bigger priority than creative design and productive construction. Taken together the proposals will reinforce the current sense of stasis in the sphere of design and construction – a malaise which already sees outputs bumping along at historically low levels in the likes of housebuilding industry.
EIA – a regulatory framework for a culture of restraint
The EIA Circular implements European Council legislation in Directive 85/337/EEC which imposes an obligation on Member States that, for all projects likely to have a ‘significant effect’ on the environment, before issuing consent, a ‘competent authority’ must carry out an EIA as to likely effects on the environment. Unusually for a Government document, the Circular fights shy of using the magic words ‘sustainable development’. However, the accompanying Good Practice guidance makes it clear that EIA operates as the regulatory framework for ensuring design responds to the principles of sustainable development.
Sustainable development is sometimes highlighted as simply the idea of “ensuring a better quality of life for everyone, now and for future generations”. Few would object to such aims, yet other definitions suggest problems. For example, the 1987 World Commission on Environment and Development highlights the requirement for “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. Here the unknown needs of future generations are used to qualify what we can do in the present day. With current trend to idealising the ‘natural’ environment, placing ‘sustainable’ limits on development serves to undermine the real aim of building – that of creating a transformative impact on the environment to our needs. Instead the starting point is an assumption that development will have a negative impact, and based on this understanding, EIA operates as the regulatory framework for constraining ambitions and limiting development.
EIA promotes ‘a sustainable pattern of development’ by ensuring environmental factors are given due weight when considered alongside social and economic factors. Yet the term ‘sustainable development’ has long been subject to wide ranging and shifting interpretations as to what it represents, and how it might be achieved. The Government is keenly aware of such problems from debates preceding ascent of the Planning and Compulsory Purchase Act 2004. At the time, architect Lord Rogers suggested a duty in the act to pursue sustainable development would be ‘meaningless’ without a proper definition on the face of the Bill . When the Act failed to provide the sought after definition, it was left to Lord Rooker to point out the choice had been one of ‘including words that mean nothing’ or providing a tighter definition that lawyers advised would only ‘stifle developments around the country ’. The upshot is the inclusion of a clause to the effect that all planning should be exercised with the objective of contributing to the achievement of sustainable development – an objective that proved impossible to define.
The difficulties in clarity resurface in the obtuse language of the Circular which advises that “the regulations must be interpreted in the context of the directive itself. Neither the Directive nor the Regulations determine whether consent can or should be granted”. The accompanying Good Practice Guidance attempts to plug the gap, but ends up exposing the difficulties of undertaking an assessment in a meaningful way. For example, each ES is required to contain a ‘full factual’ description of the development and the ‘main’ or ‘significant’ environmental effects to which development is ‘likely’ to give rise to. The statement needs to do so in a manner that anticipates any potential objection by interested parties, while showing how any potential impacts will be mitigated and alternative sites or processes that were considered. And the assessment must cover not only the direct effects, but indirect, secondary and cumulative effects, that may stretch over the short, medium or long-term.
If such ‘technical assessments’ appear to be more realistically based on gazing at crystal balls, then designers should also be aware that the scope of assessment need not be limited only to the site you might be about to build on. While landscape surveys might be limited to the zone of visual influence (its not specified if one should wait for a day of average visibility or chance it when the cloud’s low), hydrological and ecological studies may require straying ‘considerable distances’ downstream (or upstream). If there’s a butterfly on site that might potentially flap it’s wings, then its presumably time to quit.
A risk averse approach to design and development
The issue is not just the extended ground that the applicant may be forced to consider. The core problem with EIA (and the sustainable development framework within which it operates) is that it underpins and encourages a risk averse approach to development. As long as the main aim of development is to “prevent, reduce or offset the significant adverse environmental effects of development proposals”, the actions and objectives of designers and developers will be significantly constrained – often through self imposed limits on ambition that are aimed at averting legal challenge to proposals.
Take the encouragement in the guidance that EIA be used as a design tool within an iterative assessment and design process. The process map clearly illustrates how using EIA in this way will only hinder the development of ambitious plans for development. The hierarchy of consideration that’s set out prioritises avoidance (of adverse effects). This is followed by reduction (where avoidance not possible), compensation (to offset the adverse effect), and remediation (to limit influence of adverse effects). After all the work undertaken to avoid making an impact, few may have energy left for ‘enhancement’. But if so, then some projects, apparently, “can have positive effects as well as negative ones” and this end point in the EIA design process provides an opportunity to enhance “positive features through innovative design”. While EIA might formally be promoted as a process for identifying ‘positive and negative’ environmental impacts, operating within the context of the risk averse sustainable framework undercuts any such ambitions.
Developers are encumbered with an onerous burden of proof on to satisfy the consenting authority that they have minimised and mitigated impact. This is likely to necessitate collection of a wide range of data and the commissioning of environmental studies all with the aim of proving development will avoid impact and design solutions will mitigate any harmful effects. The applicant is likely to become embroiled in endless consultations, and not only with statutory consultees, but local groups and what are described as the “public concerned” – whoever they might be. With the burden of proof on the developer, to gain consent, the ES will need to anticipate all possible representations and objections that may come forward in the official round of consultations after submission. Clearly with the need to secure consent, the outcome will be to minimise ambition and innovation and reinforce the use of tried and tested solutions. This is likely to be reinforced by the suggestion that following consent developers would ideally prepare Environmental Action Plans to facilitate ‘constant audit’ through the delivery phase.
This culture of constraint will not be limited to the applicants, but often likely to be promoted by the consenting authority. With planning operating in an increasingly litigious climate, and environmental groups and the “public concerned” increasingly prepared to resort to legal challenge, the practice of consenting bodies is becoming more focussed around production of audit trails that help avoid legal challenge. In the past authorities have issued notice and reasons for a ‘positive’ decision requiring submission of EIA. The approach suggested by this guide of providing an audit trail to support a ‘negative’ decision (not to require EIA) takes the precautionary approach of EIA to its logical conclusion. Not only must an applicant spend time and effort to show how they will avoid their building having an environmental impact, but a consenting authority must leave an auditable trail illustrating just why their screening process also suggested no sign of impact. The upshot is a need to justify why you declined to force an applicant to prove that they will not cause harm. The effect of this precautionary approach is that ‘planning’ as an action to positively transform our environment is reduced to the issue of a consent that is conditional on the absence of any transformative impact.
Recent statute and guidance has reacted to the current lack of meaningful planning by (formally at least) promoting the need for proactive design and planning. Yet as EIA illustrates, any such aims are increasingly likely to be sidelined by the expansion of bureaucratic processes. Far from solving real problems of design and development, processes introduced today often have limited aims. These frequently revolve around making public the information obtained from planning and EIA processes (in often meaningless technical detail), and creating yet more forums for public bodies and members of the public to express their views. Such processes give scope for connecting a disenchanted public with something they didn’t know they wanted to be connected to in the first place.
The express intention of the EIA Directive to have “wide scope and broad purpose” will ensure that the proposals contained in this consultation reinforce the expansion of such bureaucratic processes. Such is the extent to which community and stakeholder consultation processes have been established as a defining forums for decision making that active pursuit by a landowner or developers of their interests are at times interpreted as undermining the right of communities to dictate the shape of development. The result is widespread stasis. As each player appears to endlessly watch for other parties to take the lead, consultants and lawyers soak up fees in the preparation of endless proposals, rounds of consultation, reviews, audits and justifications for subsequent actions – usually to draw up more proposals.
The EIA proposals to incorporate the principles of the Aarhus Convention will extend these problems. The convention seeks the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being. Each party will need to guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters. The scope for argument over the manner in which a development proposal may or may not provide an environment that’s consistent with the desires of our (unborn) sons and grandsons provides scope for endless debate and legalities. At the same time, it provides precious little basis upon which to actually get on and build – an aim with which these proposals for EIA appear to keen override.
EIA operates within the framework of the current precautionary approach to development and serves also to reinforce it. The intention to expand its operation and to ensure “wide scope and broad purpose” will reinforce the current culture of constraint, provide a barrier to new development, and increase the levels of bureaucracy required to deliver what little gets built.
The starting point is avoidance of harm to the environment now and for the future which flies in the face of what development is intended to realise – a transformation of our environment with the aim of meeting human needs in the here and now. In this way, the operation of EIA serves to hinder the delivery of new development, and undermines even the limited ambitions for development within the Governments own current policy.
The Government should recognise the destructive impact of its pursuit of sustainable development and abandon its commitment to an idea that requires developers to deliver proof that they can build without having a real impact on the environment. Instead it should commit rejecting the provisions of the EIA directive, and withdraw the proposed Circular and the supporting guidance. EIA cannot and should not become a design tool as set out in the guidance as it will serve only to further focus attention on avoiding risk and reinforcing constrained ambitions – just about the last thing that towns and cities require today.