Scottish Government begins consultation on updated environmental impact assessment requirements

The revised EIA Directive was finalised in 2014 and will ultimately replace the 2011 legislation. EU member states are required to transpose the changes into their own legal systems by 16 May 2017.

In a statement published alongside its consultation, the Scottish Government said that the outcome of the recent UK referendum on EU membership had not affected its approach to implementing the new requirements.

"Following the EU referendum, the Scottish Government is committed to explore all options to secure Scotland's interests and protect its relationship with the EU," it said. "The UK, and therefore Scotland, continues to be a member of the EU and as such is statutorily obligated to transpose the directive into Scottish legislation."

The consultation closes on 31 October 2016.

Currently, there are 11 separate EIA regimes in Scotland, each with their own competent related legislation. Eight of these are covered by the consultation: planning; energy; marine licensing; trunk roads; transports and works projects; agriculture; land drainage and forestry. The Scottish Government will consult separately on the necessary changes to the flood management, ports and harbours and water environment controlled activities regimes.

According to its consultation, the Scottish Government intends to implement the new requirements as consistently as possible across each of these regimes. It has published two sets of draft regulations through which it proposes to make the necessary changes: the 2017 Town and Country Planning (Scotland) Regulations and the 2017 Electricity Works (Environmental Impact Assessment) (Scotland) Regulations.

An EIA contains an assessment of a given project's likely significant effects on the environment, and must be carried out whenever applicable public or private developments are proposed. The information contained in an EIA is then used by the 'competent authority' when deciding whether or not to grant planning or other relevant permission.

EIA rules have been amended several times since the EU's first EIA Directive came into effect in 1988, most recently by the 2011 EU (Public Participation) Directive. The 2014 directive aims to improve the level of environmental protection provided by the EIA process with a view to making business decisions on public and private investments "more sound, more predictable and sustainable in the longer term", while at the same time simplifying the rules in line with the EU's ongoing drive for smarter regulation.

The new rules are also designed to be more forward-looking, and to ensure that the assessment process better reflects the threats and challenges that have emerged since the original rules came into force. These include resource efficiency, climate change and disaster prevention, according to the Scottish Government's consultation.

"As expected, the consultation confirms that, Brexit or no Brexit, transposition of the new EIA Directive proceeds," said planning and environmental law expert Gordon McCreath of Pinsent Masons, the law firm behind Out-Law.com. "The same approach will be taken in the analogous consultation for England and Wales, which is due imminently."

"There are a few highlights to note on the approach to transposition selected in Scotland but, looking on the positive side, generally speaking the transposed requirements are not as onerous for developers as they could have been," he said.

The Scottish Government's approach will require the 'reasonable" alternatives studied by a developer to be reported in the assessment. However, there is no guidance yet as to what will fall into that category, McCreath said. The Scottish Government has not taken up the option to require mandatory scoping, although any assessment must be based on any scoping opinion given.

Monitoring of the effects against those predicted in the assessment will not be mandatory across the board, but the decision maker would have to consider whether it should be required in the circumstances of each project, according to the consultation. Where monitoring or mitigation is required, the planning authority would have to ensure that these are implemented – that is, they will need to be secured by condition and the conditions enforced. 

Where assessment under the Habitats and/or Birds Directive is also required, the Scottish Government has opted for a 'co-ordinated' procedure, designating a lead authority to coordinate the individual assessments, rather than requiring one assessment to cover them all, with the stated aim of giving developers the greatest flexibility on phasing and timing of the assessments, according to the consultation.

The European Commission published new guidance on streamlining the environmental assessment process late last month. The guidance sets out how assessments of the same project under the EIA and similar directives, including the Habitats and Birds Directives, should be co-ordinated in order to save time and avoid duplication.