Comparison national EIA, SEA and AA systems

The EIA, SEAand Habitats Directives lay down certain end results regarding EIA, SEA and AA that must be achieved in every Member State. National authorities have to adapt their laws to meet these goals, but are free to decide how to do so. Each directive specifies the date by which the national laws must be adapted. The Member States, within the time frame set by the directive, have discretionary power over the timing of the transposition into national legislation of the directive. The timing chosen by each Member State will often be in relation to the estimated required time to overcome differing national situations. These Directives are used to bring different national laws regarding environmental protection and nature conservation into line with each other.

Considering the discretionary margins Member States enjoy while implementing the EIA, SEA, Birds and Habitats Directives, the environmental assessment regimes and the AA regimes in Belgium (Flanders), Germany (Federal State of Bremen), the Netherlands and the United Kingdom (England and Wales) are slightly different. This section provides an overview of some of these nuances.

Table 9-2          Overview differences/similarities national EIA/SEA and AA regimes

Table 9-3          Overview dealing with uncertainties in national permitting practice

1. General and Definitions

In Belgium, Germany and the Netherlands, the EIA and SEA Directives are closely linked. Both European Directives have been implemented by the same act and regulations. In the UK, the EIA and SEA regimes are related but also separate in that they apply to different activities’ (projects and plans/programmes). However, in all four countries these environmental assessment regimes are a precise implementation of the EIA and SEA Directives. The same applies to the Belgian, German, Dutch and UK’s nature conservation regimes which use almost exactly the same wording as the Birds and Habitats Directives. Also the national jurisprudence is strongly inspired and influenced by the case law of the European Court of Justice.

2. Screening

Belgium, Germany, the Netherlands and the UK all have implemented screening procedures to verify whether a proposed activity is likely to cause significant effects to the environment or more specifically to a Natura 2000 site. The outcome of these screening procedures can trigger environmental assessment or AA. The mechanisms and working methods are quite similar to what is laid down in European legislation, regulations and policy documents. However, the European Court of Justice ruled recently that the Flemish Region and the Netherlands did not correctly transpose the European Directive articles and annexes, which regulate screening. Even if an activity does not meet the thresholds mentioned in the national legislation, nevertheless a preliminary screening is mandatory if – based on the selection criteria in Annex III of the EIA Directive, significant environmental impacts cannot be excluded. The thresholds focus on the extent of the activity and did not take into account the other criteria in Annex III of the EIA Directive as the location of the project and the characteristics of the potential impact. The Flemish Region and the Netherlands take the necessary measures to render their national regulations compliant with the EIA Directive.

With respect to navigation dredging, Member States may differ in their interpretation of the need for EIA with some Member States (e.g. the UK) maintaining that navigation dredging projects are not covered by EIA unless they are associated with another EIA project (e.g. reclamation).  Furthermore, in the UK, the creation of a new dredged material disposal site and the disposal of dredged material at sea are not considered to require EIA. In the UK there is also a different approach to maintenance dredging as it is considered a plan or project and potentially subject to AA.  Defra has implemented a voluntary approach called the Maintenance Dredging Protocol where all those involved in dredging in an area can produce a combined Baseline Document that describes the history of dredging and carries out an in-combination assessment.  Importantly, there is an assumption that long standing maintenance dredging is likely to form part of the baseline environment and thus not give rise to significant effects on the SAC or SPA.  The ECJ ruling a year or so ago infers that the UK government was wrong in its assertion that the previous management plan approach was not acceptable. However, the UK ports industry has not sought to change the current approach.

3. Content assessment

In all four concerned jurisdictions, the relevant regulations specify the minimal content of an environmental assessment and an AA. The EIA, SEA and AA reporting should always include an overview of the knowledge gaps and other uncertainties in the description of the current situation, the environment and the environmental impact of the intended activity. For EIA purposes the considerations of alternatives in the UKis generally restricted to sites that could reasonably be considered to be within the developer's control, that is, the study focuses on selection of the least damaging of the opinions available to the developer rather than consideration of projects being developed or promoted by competitors (as is the case with the Habitats Directive).

4. Scoping

The Belgian environmental assessment regime puts a strong emphasis on scoping. Each EIA and SEA procedure starts with a notification to the EIA Unit. This notification constitutes an elaborate file stating a description of the proposed project or plan and the likely effects, the projected content of the EIA or SEA, the envisaged methodologies, etc. The actual EIA or SEA procedure can only start after the EIA Unit approves the proposed scope. Prior to taking a decision and commenting on the notification file, the EIA Unit will consult all relevant authorities and a public enquiry will be held. The input of the EIA Unit, the concerned authorities and the public will diminish the risks of unexamined effects, knowledge gaps.

The German regulations also foresee a scoping procedure. The EIA procedure scoping is not mandatory. The SEA procedure is mandatory and contains a full blown scoping procedure. However, besides the possibility to solicit input and feedback of concerned third parties, there is no duty to organise a public enquiry at this stage. The applicable regulations leave room for a dialogue between the developer of the project or plan and the authority competent to consent to the project or plan.

In the Netherlands, scoping is an obligation under EIA and SEA, but the obligations leave room to take into account differences in scope and level of detail of the plan or project. In EIA procedures the reasonable to consider alternatives stay mostly within the project area of the developer and in other cases (more relevant to SEA procedures) the selection of a location forms an important part of the EIA and the decision making process.

Scoping forms an essential part of both SEA and EIA in the UK with the scoping opinion confirming the basis of the impact assessment that will be reported in the EIA. In practice, it is common in the UK for the Screening and Scoping stages to be combined into a single stage. This reduces the overall timescale associated with the provision of a screening and scoping opinion from the regulators. There is a wide range of potential competent authorities for EIA in the UK (depending upon the type, scale and location of the project) however policy guidance from central government aims to ensure a consistent approach.

5. Consultation and participation

Consultation forms an important part of SEA, EIA and AA in Belgium, Germany, the Netherlands and the UK. Each set of implementing regulations includes provision for formal consultation during scoping and also during consideration of the ES.

In the UK, there is a range of approaches taken by the different regulations with some EIA regulations including statutory consultees (i.e. named bodies) and others providing flexibility to the regulator to decide on consultation requirements on a case by case basis. The decision on the need for public inquiry is taken once consultation on the ES is complete and can be related to the number and nature of objections received.

In the Netherlands the extensive procedure requires public participation and consultation and an advice of the NCEA (EIA Commission) on the scope and level of detail of the EIA/SEA preliminary to the draft of the ES itself and thereafter. This creates possibilities for third parties to give their opinion on aspects that need to be addressed in the ES and afterwards on the way the proponent has dealt with these opinions.

6. Decision making (incl. permitting) and monitoring

In Belgium, the environmental assessment requirements are incorporated in a specific procedure established to comply with the EIA and SEA Directives. In this procedure a substantial role is attributed to a specialised central authority: the EIA Unit of the Environment, Nature and Energy Department of the Flemish administration takes up this role, instead of the consenting authority. This specialised unit is involved in every EIA and SEA in the Flemish Region. Consequently, it could build up an enormous expertise on environmental assessment through the years which is obviously an advantage when dealing with uncertainties. The AA requirements are integrated into existing procedures for development consent or plan adoption in the Flemish Region. However, also regarding AAs an important role is attributed to a central authority. This role is taken up by the Minister of Public Works, Energy and Environment, supported by the specialised Nature and Forest Agency. 

In Germany, the EIA and SEA requirements are integrated into the procedure for the relevant plan or permit. The competence to determine whether an EIA or a SEA needs to be carried out and the competence to supervise the execution of the EIA or SEA lays with the authority that is competent to rule on the admissibility of the project or the plan and not with a separate specialised government agency. The consequence of such integration is that the competent authority varies according to the law that applies to the permit or plan concerned and the territory on which the project is developed or the plan is applied, rather than attributing a substantial role to a specialised central authority.

In the Netherlands, the regulations integrate the EIA/SEA and AA procedures into the procedures that need to be followed for the relevant plan or permit. There is no national specialised authority, that whenever an EIA/SEA or AA is mandatory, takes over the role as competent authority. Therefore, the competent authority can vary depending on differences in the relevant regulations and the territory on which the project is developed or the plan is applied. Nevertheless, the NCEA plays a key role as an independent expert body with legal status in issuing non-binding advice to government agencies responsible for environmental assessments. Although this advice is not in all cases mandatory, government and proponents can benefit from this comprehensive source of information.

In the UK the EIA regulations are implemented into the sector-based and over-arching development control regime. SEA is implemented separately and applies across public sector planning activities. Strategic planning and development activities are inter-related through planning policy; with SEA providing the overall context within which project-specific EIA is carried out. Due to the relatively specific nature of port-related activities (which are generally under private sector ownership) in the United Kingdom, the SEA Regulations are not applicable to such development or projects, these being assessed (if appropriate) via the various EIA regulations available. However, at the estuary-wide level, SEA is adopted as a useful assessment tool when authorities other than Harbour Authorities (e.g. the Environment Agency or other Coastal Protection Authorities, such as Local Authorities) are involved in the delivery of certain plans or programmes.

The Belgian, Dutch and English courts limit themselves to a marginal review of environmental assessments and AAs. This introduces a notion of reasonableness. The courts judge that uncertainties and knowledge gaps do not per se constitute a breach of the precautionary principle. Uncertainties and knowledge gaps that are not sufficiently substantial or that can only be eliminated after a detailed examination against unreasonably high costs are acceptable. The developer is not held to create new scientific knowledge. He only has to inventory and work with reasonably accessible scientific knowledge and generally accepted research methods.