Environmental Outcomes Reports (UK)

Part 5 (clauses 116 to 130) of the Levelling-Up and Regeneration Bill provides for regulations – termed Environmental Outcomes Reports Regulations (EOR Regulations) to be enacted by the Secretary of State to specify outcomes in relation to environmental protection in the UK or a relevant offshore area that are to be “specified environmental outcomes”. The Bill is here, and it is in Committee (House of Commons).

The Bill Explanatory Notes state the EOR Regulations will be subject to public consultation and also the affirmative parliamentary procedure (which requires a positive vote of the UK Parliament) and would (by its own provisions) uphold the non-regression provisions set out in Part 5 (clause 120).

The effect of the EOR Regulations will be not only to specify outcomes relating to environmental protection, but also against these specified environmental outcomes to assess the relevant plans and relevant projects through an Environmental Outcomes Report. As well as assessing against outcomes, an Environmental Outcomes Report must additionally set out and assess the impact of any proposed mitigation or compensation as well as considering reasonable alternatives to the consent or plan, or any element of them. Where an Environmental Outcomes Report is required, this would (by law) be taken into account when considering whether to grant consent or bring a plan into effect.

Essentially the EOR Regulations will take over from the EIA Regulations (for those projects and plans where environmental outcomes reports are mandated).

Bill clause 116 defines environmental protection to be –

(a) protection of the natural environment, cultural heritage and the landscape from the effects of human activity;

(b) protection of people from the effects of human activity on the natural environment, cultural heritage and the landscape;

(c) maintenance, restoration or enhancement of the natural environment, cultural heritage or the landscape;

(d) monitoring, assessing, considering, advising or reporting on anything
in paragraphs (a) to (c).

Before making specified environmental outcomes, Bill clause 116 states the Secretary of State must have regard to the current environmental improvement plan made under Part 1 of the Environment Act 2021 (presently the 25 Year Environment Plan, as none is yet made under the EA 21 Part 1), including the legally binding long-term targets and interim targets that are set under it.

Bill clause 117 provides for an environmental outcomes report to be made for certain consents and certain plans. An environmental outcomes report is a written report.

Further clauses set out powers to be ascribed to these EOR Regulations in relation to consents and plans. Note: the new terms “category 1 consent” and “category 2 consent”.

Bill clause 120 sets out safeguards for non-regression, international obligations and public engagement.

Bill clause 121 deals with interactions with the devolved administrations.

Bill clause 122 addresses exemptions for national defence and civil emergency.

Bill clause 123 sets out sanctions, notably the EOR Regulations may create criminal offences, but not the penalty of imprisonment.

Bill clause 127 addresses the interaction with existing environmental assessment regulations (this is a list of law, including the various existing EIA Regulations) and the existing Habitats Regulations. In particular, the EOR Regulations may disapply aspects of the environmental assessment Regulations or the existing Habitats Regulations where an environmental outcomes report is required.

The existing Habitats Regulations are the source of European Protected Species (and their additional protection from disturbance (animals), and cutting and collecting (plants)) and also European Protected Sites (habitat).

The EOR Regulations may also amend, or revoke the existing environmental assessment regulations.

Environmental Impact Assessment (EIA) (EU)

European Directive 2014/52/EU amends the existing European EIA Directive, effective 15 May 2014.

Subscribers to Cardinal Environment Tailored EHS Legislation Registers have this amendment loaded as part of their consolidated EU law (where they have the EIA Directive).

Member States have until 16 May 2017 to implement the revision. Email Alerts will be sent out when local law changes. (Remember as a European Directive, it is not binding within a Member State until the local law changes).

The amendment is intended to lighten unnecessary administrative burdens and make it easier to assess potential impacts, without weakening existing environmental safeguards.

The EU guidance lists seven things that the new directive does differently:

– Simplification: EIA procedures must be simplified by member states;
– Timeframes: these are introduced for some stages e.g. screening decisions;
– Screening: asking whether EIA is required is simplified;
– Reports: environmental statements are renamed EIA reports and must be made more understandable;
– Quality and content: EIA reports are to be improved and conflicts of interest avoided;
– Decisions: application decisions must be clear and transparent and timeframes may be introduced (i.e. optionally);
– Monitoring: projects with significant effects on the environment must be monitored

This is a presentation which gives greater detail.

Deep Drilling Amendment Proposed for EIA (Ireland)

A review of the transposition of the European Environmental Impact Assessment (EIA) Directive in Irish law, as relevant to the Marine Planning and Foreshore section of the Department, has identified that amendments to the relevant legislation are required to ensure that Point 2(d) of Annex II of the Directive (which refers to deep drillings) is adequately transposed.

The relevant legislation includes the Planning and Development Act, the Planning and Development Regulations 2001 and the Foreshore Act. As the amendments will give effect to EU law, an amending regulation under the European Communities Act 1972 is appropriate. An amendment to each of these pieces of legislation is considered appropriate.

The purpose of the amendments is to bring any deep drilling, except drilling for investigating the stability of the soil (the exception permitted by the EIA Directive) into the legislative framework. All deep drilling requiring either planning permission or a foreshore consent will have to be screened for EIA on a case by case basis by the relevant competent authority (i.e. the planning authority/An Bord Pleanála in the case of planning applications, or the Minister in the case of foreshore consents). EIA will be mandatory in respect of such deep drilling unless the screening process determines otherwise.

The Irish Department of the Environment, Community and Local Government is inviting submissions on the recently published draft European Union (Environmental Impact Assessment) (Planning and Development) Regulations which will make these amendments.

The draft Regulations are here.

Public consultation expires 17th January 2014. Information about the consultation is found here.

Environmental Impact Assessment (EIA) Directive

The European Parliament has today voted on the European Commission’s proposal for a revised EIA Directive.

Following today’s vote in the European Parliament on the revised Environmental Impact Assessment Directive, EU Environment Commissioner Janez Potočnik said:

“I welcome the outcome of today’s vote on the Commission’s proposal for a revised Environmental Impact Assessment Directive. This paves the way for much-needed changes that will modernise the current directive, in line with the REFIT agenda, improving its effectiveness and streamlining related administrative processes. Fundamentally, it’s a vote of confidence in what has always been one of the foundations of EU environment policy, a key piece of legislation that ensures the concerns of citizens are taken into account when important new developments are needed. We will now be carefully examining the proposed amendments. I look forward to working closely with the Parliament and Member States to ensure progress is made towards adopting the revised directive as soon as possible.”

Per the European Commission’s webpage on this – the proposed revised EIA Directive is intended to lighten unnecessary administrative burdens and make it easier to assess potential impacts, without weakening existing environmental safeguards. “The quality of the decision-making process will be reinforced, current levels of environmental protection will be improved, and businesses should enjoy a more harmonised regulatory framework. The changes are also forward looking, and emerging challenges that are important to the EU as a whole in areas like resource efficiency, climate change, biodiversity and disaster prevention will now be reflected in the assessment process.”

Pebble Mine Project (US Alaska)

Update (18 July 2014): The U.S. Environmental Protection Agency Region 10 is issuing a proposal to protect one of the world’s most valuable salmon fisheries, in Bristol Bay, Alaska, from the risks posed by large-scale mining at the Pebble deposit.

EPA Region 10 is seeking public comment on its proposal from July 21 to September 19, 2014, and will hold public meetings in Alaska from August 12-15.

In February 2014, EPA announced it was initiating a process under the Clean Water Act to protect the Bristol Bay fisheries from mining of the Pebble deposit. The announcement followed a multiyear scientific study examining the impacts of large-scale copper mining in the Bristol Bay watershed.

EPA Region 10’s proposal to protect the Bristol Bay watershed outlines restrictions that would protect waters that support salmon in and near the Pebble deposit. These restrictions apply to impacts associated with large-scale mining of the Pebble deposit. No other lands or development are subject to the restrictions.

The Clean Water Act generally requires a Section 404 permit from the U.S. Army Corps of Engineers before any person places dredged or fill material into streams, wetlands, lakes and ponds. The U.S. Army Corps of Engineers authorizes thousands of permits every year, and EPA works with the Corps and developers to resolve environmental concerns so projects can move forward. Under Section 404(c), EPA is authorized to prohibit or restrict fill activities if a project would have unacceptable adverse effects on fishery areas.

Further detail on the July 2014 EPA proposal is here.

Here is information reported on contrary legal action.

AngloAmerican Press Release pulling out of the Pebble Mine project is here.

USEPA Draft Environmental Assessment (EA) of the Bristol Bay Area is here.

This is The Guardian News Article.

EPBC Water Trigger Query (Australia)

Consultation on new draft Guidelines has just closed – see here for the documentation.

The EPBC is Australia’s national environmental law – the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act). 2013 amendment has inserted a mandated (national-level) assessment of water resources impacts (a water trigger for project referral) into the process of approving new coal seam gas and large coal mining activities (this does not apply to shale gas).

Before the amendment was made, projects with water related risks could only be regulated at national level if they had implications for existing matters of national environmental significance eg. nationally endangered plants or animals.

This location gives further information on the new water trigger.

See here for the consolidated law (the water trigger is provided for by inclusion of coal seam gas and large coal mining at Chapter 2 Part 3 Subsection FB).

Rosia Montana Mining Project

UPDATE (25 April 2014): mandatory EIA document is annulled by court (and therefore the environmental permit is not fulfilled (so the project is set back) – see report in The Independent

UPDATE (17 Sept): further from The Guardian

UPDATE: following major protests, the project now looks set to be rejected – see here.

Complex open-cast gold mining project in the Rosia Montana region of the Carpathian Mountains, Romania reaches the next stage in approvals.

See here for the Gabriel Resources Ltd press release.

See here for recent posts by the Rosia Montana Cultural Foundation.

See here for the Romania RADOR feed on a possible Referendum.

See here for a feed about current protests.

See here for information on the recent statement of the Government of neighbouring Hungary.

See here for the June 2013 Europa Nostra press release identifying Rosia Montana in its 2013 list of the 7 most endangered monuments and sites in Europe.

Offshore Renewable Energy EIA

Here are the CEFAS guidance documents. By the way: CEFAS is the Centre for Environment, Fisheries and Aquaculture Science.