The Environmental Impact Assessment (EIA) Directive 2014
The European Commission undertook a review of the EIA Directive between 2009 and 2012 which culminated in the adoption of a proposal to amend the existing EIA Directive. The objectives of the proposal were to “lighten unnecessary administrative burdens and make it easier to assess potential impacts, without weakening existing environmental safeguards”. The proposal also brought new areas into the assessment process including greater consideration of resource efficiency, climate change, biodiversity and disaster prevention. The proposal was adopted and came into force in May 2014. Of particular relevance here is that the EIA should include (i) particular consideration of species and habitats protected under the Birds and Habitats Directive; (ii) consideration of the ‘use’ of biodiversity as a result of the project which, presumably, may not be limited to the project site and its immediate environment; and (iii) an explanation of the extent to which significant adverse effects on the environment are avoided, prevented, reduced or offset. The amendment also compels Member States to ensure that measures designed to avoid, reduce or offset significant adverse effects are actually implemented by the developer and to determine procedures for monitoring significant adverse effects on the environment. Member States are encouraged to ensure that coordinated and/or joint procedures are established where assessments are required under both the Nature Directives and EIA Directive.
Report of the Habitats and Wild Birds Directives Implementation Review (2012), and progress report (2013)
In 2011, the Chancellor of the Exchequer famously announced a review of the way that the two European Nature Directives (Birds and Habitats) were being implemented in England, focussing on the burdens that these place on development proposals.
The authors of the review concluded that, in the large majority of cases, the implementation of the Directives was working well, but identified four main areas in which there is scope for improvement.
These are (i) facilitating national infrastructure projects; (ii) improving the implementation processes and streamlining guidance; (iii) improving the quality, quantity and sharing of data; and (iv) improving the customer experience with statutory bodies. Twenty-eight measures were announced to improve implementation across these four areas.
They included the creation of the Major Infrastructure and Environment Unit (MIEU) ⁴, which will deal primarily with the ‘top 40’ national infrastructure projects; the production of a new over-arching guidance manual, on one website, on the implementation of the Directives; and to undertake a stock-take of existing guidance; consideration of an appeals process for protected species licences in the Law Commission review (see above); and support for the Penfold review recommendations that affect Natural England.
The 2013 progress report confirmed that the majority of the measures have been completed.
Fitness Check of the Birds and Habitats Directives (2014 – 2017)
In February 2014, The European Commission decided to review the Birds and Habitats Directives (the Nature Directives) in a process known as a ‘Fitness Check’. The objectives of the check included a review of the effectiveness, efficiency, coherence and relevance of the Directives. The outcome of the check was published in December 2016. The main conclusion was that “the balance of the evidence shows that the Directives are fit for purpose, and clearly demonstrate EU added value. The Directives have generated many important benefits for nature conservation and sustainable development overall”. The Directives are therefore here to stay, in their current form, for the foreseeable future. However, the fitness check resulted in the identification of shortcomings in the implementation of the Directives. In particular, these related to (i) progress on the designation of Natura 2000 sites (especially at sea), (ii) the establishment of necessary conservation measures, such as management plans, within Natura 2000 sites; and (iii) the management and restoration of habitats and landscape features outside Natura 2000 sites. Other short-comings included duplication of assessments required under the Nature Directives and the EIA Directive in some member states, with associated increased costs in compliance. See European Commission, Fitness Check of EU Nature Legislation for further details.
An Action Plan for nature, people and the economy (2017)
Following on from the Fitness Check of the Birds and Habitats Directives, the European Commission has embarked on the preparation of an Action Plan to improve the implementation of the Directives. So far, it has published a ‘road map’ which sets out the basis for the Action Plan. The Action Plan will be focussed on (i) developing and applying smart implementation approaches to support national, regional and local authorities and stakeholders to avoid unnecessary costs and burdens; (ii) improving compliance with the Nature Directives for their effective delivery, harnessing the full potential of healthy ecosystems; (iii) strengthening investment in Natura 2000 and coherence with other policies, in particular with EU funding policies; and (iv) improving access to knowledge, promoting stakeholder and public engagement. The Action Plan is due to be published in the second quarter of 2017.