Environmental Impact Assessment

Although the detail of rules varies, most countries require some form of environmental impact assessment (EIA), to inform the regulatory decision whether to permit an energy or other project to proceed. 

Recent decisions from the courts in the United Kingdom illustrate the issues which can arise in EIA.  

Defining the project to be assessed

Large scale developments are often master-planned and then proceed in phases. Inevitably there are disputes about "salami-slicing", ie. whether undertaking EIA of part only of the large-scale development is appropriate.

In the Ashchurch Rural Parish Council case, the judge rejected the argument that a road bridge could not be considered in isolation from the rest of a masterplan development even though the bridge was only being constructed to facilitate the future phases of the masterplan. The other phases in the masterplan were aspirational, and would be subject to EIA in the future.

The Hough case involved a former military camp. Planning permission had been granted for development split into 4 phases. A special development order granted planning permission for use of part of the site for asylum accommodation.

The claimant alleged that the SDO screening opinion failed to take into account the in-combination effects with the development proposals for the rest of the site. The judge held the opinion fell within the scope of appropriate judgment, despite only brief reference to the adjoining proposed development.

Multi-stage consents

Often full details of a project are not available at the consenting stage. Recent legal challenges involved an event management plan for a sports stadium, and visitor facilities for a spaceport. The courts rejected claims that the absence of those details prevented effective EIA.

The Rochdale approach enables EIA to be undertaken on a design envelope, with the consent requiring the development to be carried out in accordance with the parameter plans.

The Swire case involved a claim that the masterplan subsequently approved materially strayed outside the parameter plan. The court held that "in accordance with" did not impose a requirement for rigid adherence to the principles of the parameter plans. Whether a development was in conformity or harmony with parameter plans involved matters of planning judgment and degree.

The outline permission had been subject to EIA, but the claimant argued the approval of the masterplan also required EIA. The judge rejected the "excessively legalistic argument" and held that the officer had considered the overall adequacy of the environmental information.

Downstream effects

In the Finch case, the Court of Appeal upheld the earlier judge's decision that EIA only assesses effects which the development itself has on the environment, and not the environmental effects which result from the consumption, or use, of an end product, eg. oil. The court said there needs to be a "degree of connection".

The UK Supreme Court has given permission for this decision to be appealed.

Risk of legal challenge

Most EIA challenges in the UK courts are unsuccessful (none of those mentioned above succeeded). EIA approaches and methodologies have matured, especially in the onshore wind sector. Project teams know the risks of taking short-cuts.

Screening and scoping decisions, and grants of consents, often involve planning judgment, which the UK courts are reluctant to intervene on.