The Role of Environmental Impact Assessment in Achieving Greenhouse Gas Emission Targets

Introduction

Environmental Impact Assessment (EIA) shall mean a process that effectively and systematically identifies, investigates and evaluates potential impacts of a project proposal covering potential environmental problems and giving an opportunity to take corrective measures to mitigate impacts. This essay will explore how EIA helps in implementing the targets of greenhouse gas emission set by the 2015 Paris Agreement.

Impact of EIA

The Rio Summit in 1992 (UNCED, 1992) identified EIA as a key tool that is used to achieve sustainable development by giving decision makers an appropriate information on potential environmental, economic, social and health effects of development proposals before a development consent. However, the impact of an EIA on a development proposal is another question to be evaluated. This means an EIA may not necessarily cause the effective implementation of the target agreed. In the case of R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd, the Supreme Court held the Secretary of Stata (SoS) acted unlawfully by failing to adhere to the Paris Agreement while determining the Airports National Policy Statement (ANPS) and further held the ANPS invalid. The Supreme Court did not consider the Paris Agreement as a part of government policy, but gave priority to Section 5(8) of the Planning Act (proposals taking account of government policy) by

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1. Environment Agency, ‘Environmental Impact Assessment (EIA): A handbook for scoping projects’ (2002) accessed 27 May 2021 .
2. Ibid.
3. R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52.

Tgiving it a restrictive interpretation so as to give a formal status of an established policy. The ruling disregarded the formal ratification of the Paris Agreement as not constituting a government policy. The ruling does not provide for court’s intervention in, but priorities the SoS’ discretion of deciding that information in an environment sustainability report provides a sound and sufficient basis for public consultation. It affirmed that the SoS has considered effect of greenhouse gas emission and its approach was rational and lawful. The Heathrow decision does not seem to have taken account of the Paris Agreement especially when a national infrastructure project considered necessary by the government is involved. The climate policy analysis seems to have been done in an agenda setting perspective focusing primarily on total energy system cost and loss of consumption and GDP. It should have considered an actual impact assessment that also covers political and legal complexities. For example, the ruling itself breaches the Paris Agreement as it did not consider the agreement as a part of the government policy.

The decision of the Supreme Court in Heathrow is a missed opportunity to enforce the necessity of EIA in meeting the target of the Paris Agreement. Its ruling shows that the national need for infrastructural development precedes over the targets of the Paris Agreement. This is despite that EIA is embedded in national planning policy and law, and is a pre-requisite for some types of development proposals prior to development consent being granted. For example, in regard to town and country

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4. Ibid.
5. Ibid, accessed on 27 May 2021 .
6. Jean-Francois Mercure, Hector Pollitt, Neil R.Edwards, Philip B Holdend, Unnada Chewpreecha, Pablo Salas, Aileen Lam, Florian Knobloch, and Jorge E.Vinuales, ‘Environmental impact assessment for climate change policy with the simulation-based integrated assessment model E3ME-FTT-GENIE’ (2018) 20 Energy Strategy Reviews 195-208.
7. United Nations Environment Programme (UNEP), An Introduction to Environmental Assessment (UN 2016) 23.

planning, the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 applies the EU Directive 2014/52/EU of the European Parliament and of The Council concerning assessment of effects of public and private projects on the environment. As per Regulation 3, a planning permission can be denied if there is no EIA. However, there seems to be a gap in the commitment to the Paris agreement and the execution of the agreement. In another case, the UK judiciary has missed upon the opportunity of concretising the significance of EIA in development projects. In the case of R (On the Application Of Finch) v Surrey County Council, issues were raised as to whether or not the developer’s obligation under the 2017 Regulations to furnish environmental statement needs an assessment of greenhouse gas emissions arising from uses end products concerned development. The High Court held negative. It observed that EIA is only carried out regarding the effects of development, whether consented or yet to be approved. The High Court’s ruling limited the application of development control and the EIA process to essentially the use and development of land and the effects of that use. The ruling excluded the environmental effects resulting from the consumption or use of the end product from such development. The High Court held that EIA does not legally require assessment of GHG emissions from the combustion of the end product, which in this case is the refined oil product. What is surprising is that the High Court restrained itself from addressing the merits and application of concerned policies. It limited its role to reviewing the consideration that a planning authority give a planning application in order to determine whether or not the authority has considered or misinterpreted the relevant policy.

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8. R (On the Application Of Finch) v Surrey County Council [2021] EWHC 170 (QB).
9. Ibid.
10. Ibid.
11. Ibid.

The decisions of the judiciary do not seem to take into account the government commitment to climate change as provided under Section 1(1) of the Climate Change Act 2008 that obligates the government to ensure the “net zero target”, which is UK carbon account for 2050 at least 100% lower than the 1990 baseline. The response of the UK to the Paris agreement is one constant response. Any development that is of national importance precedes over requirement of the Paris Agreement. In another case, the UK courts hold decisions similar as those mentioned above. In R (Packham) v Secretary of State for Transport, concerning HS2, a high-speed railway project, the Court of Appeal dealt with the issue of consideration of the Oakervee review report and climate change issues. The report covered assessment of greenhouse gas emissions to net zero by 2050. It found that HS2 would add to carbon emissions, around 0.1% of current UK emissions on an annual basis, but would be far less carbon intensive than other non-rail alternative transport schemes delivering similar transport outcomes. The government on 11 February 2020, approved the project citing national importance and the current claim would impede the development. The claimant objected to this decision that the government did not consider the Paris Agreement, which was “obviously material” to this decision. The Court of Appeal ruled that there was no error on the part of the government as it did not ignore or misunderstand the legal implications of HS2 in regard to the climate change duties, including those from the Paris Agreement and the Climate Change Act. The government rational is based on national importance for developing the infrastructure, which the judiciary approves by affirming the need to speed up the development process removing any challenges that could impede

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12. R (Packham) v Secretary of State for Transport [2020] EWCA Civ 1004.
13. Ibid.
14. Ibid.

the development. This was seen in the case of Finn-Kelcey v Milton Keynes Borough Council, where the Court of Appeal found relevance of the six-week limit for a statutory review of an appeal decision of SoS while determining whether or not a claimant promptly acted to challenge a planning permission.

The cases discusses so far have focussed on swift administrative decision regarding national infrastructure project. However, there are other cases that have taken a robust view to EIA. For example, in Berkeley v Secretary of State for the Environment, the House of Lords stresses on importance of EIA and participation rights by stating the failure by the authority to undertake EIAs in regard to substantial urban development works that could affect the environment cannot be excused on the ground that the outcome would have been the same had the EIA been carried out. The court’s attitude demonstrates that a comprehensive analysis is not present in absence of EIA. However, as the above cases show that despite EIA, the court can recognised rationales as mentioned above to approve projects that could be detrimental to the government’s target provided under the Paris Agreement.

EIA through EU Courts’ decision

The case of Abraham concerns a preliminary reference regarding interpretation of 85/337/EEC on the assessment of the effects of establishment of an air freight centre at the Liège-Bierset Airport (Belgium). The issue concerns the main

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15. Finn-Kelcey v Milton Keynes Borough Council [2009] Env. L.R. 17; see also R. (on the application of Gerber) v Wiltshire Council [2016] 1 W.L.R. 2593.
16. Berkeley v Secretary of State for the Environment [2000] UKHL 36.
17. Aine Ryall, Effective Judicial Protection and the Environmental Impact Assessment Directive in Ireland (Bloomsbury Publishing 2009) 31.
18. Paul Abraham and Others v Région wallonne and Others, (2008) Case C-2/07.

agreement to made modification in the airport infrastructure to enable the use of the airport for 24 hours per day and 365 days. The CJEU left the decision to the national court to determine whether the agreement is a development consent and to establish the need of an environmental impact assessment. The CJEU, unlike the ruling in Surrey County Council mentioned earlier, ruled that EIA should consider, as Directive 85/337 requires, both direct effects and the environmental impact arising from the use and exploitation of the end product of concerned works or development. In Surrey County Council, the court ruled that CJEU used the language “end product” to describe the outcome of works and thus the ruling cannot be used to mean that EIA should include effects of the use “end product”. A contrary position of the ECJ was seen in the case of Czech Republic v Poland. A 2008 Polish law allowed the extension of lignite mining concession once for a period of six years without requiring an environmental impact assessment based on a rational management of the mine deposit without extending the concession scope. This is a government discretion that allows such extension through the law. However, on a complaint raised by Czech Republic that Poland has infringed EU law by extending the concession, CJEU ordered to immediately to cease lignite extraction activities citing that the extension infringes Directive 2011/92/EU that provides for EIA.

Unlike the UK courts that have given preference to government’s policies, as seen in the cases discussed earlier, The Hague District court this May 2021 in the case of

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20. Ibid.
21. Ibid.
22. R (On the Application Of Finch) v Surrey County Council [2021] EWHC 170 (QB).
23. Paul Abraham and Others v Région wallonne and Others, (2008) Case C-2/07.
24. R (On the Application Of Finch) v Surrey County Council [2021] EWHC 170 (QB), at 115.
25. Czech Republic v Poland, (2021) Case C-121/21 R.
26. Ibid.

Milieudefensie et al. v. Royal Dutch Shell plc ordered Royal Dutch Shell to cut its carbon emissions by net 45% by 2030 compared to 2019 levels. Shell was found to have breached its a duty of care in regard to reducing greenhouse gas emissions considering the Paris Agreement. At the EU levels, the EU takes environmental issues seriously as it is also found that the EU Commission can also bring a claim in the ECJ, as what it did against Germany in the ECJ for violating nature conservation laws, particularly the Council Directive 92/43/EEC (Flora-Fauna habitat Directive), which requires a member state to designate special protection areas in order to conserve rare, threatened or native flora and fauna.

The ECJ has constantly interpreted EIA directives to ensure attainment of the directives considering that directives require comprehensive assessment for projects that could significantly impact the environment. This is the reason why ECJ rejected attempts by member states to delay the implementation of environmental Directive 85/337//EEC. It therefore held transitional arrangements basing on legal certainty as unlawful. Take a deeper dive into The Urgency of Ecological Law in Addressing the Global Environmental Crisis with our additional resources.



Recommendation

This essay has observed prioritisation of national infrastructural developments over environmental developments. Any national developments work would be conducted on large scale and hence, the issue of EIA is competed against political and

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27. Milieudefensie et al. v. Royal Dutch Shell plc. (2019) accessed 27 May 2021
28. Rosie Frost, ‘European Commission takes Germany to court for failing to protect nature’ (2021) accessed 27 May 2021
29. Aine Ryall, Effective Judicial Protection and the Environmental Impact Assessment Directive in Ireland (Bloomsbury Publishing 2009) 126; Case C-396/92 Bund Naturschutz in Bayern eV v Freistaat Bayern [1994] ECR I-3717.

economic interests of the government. The cases in context to the UK show that even the social issues seem to have been shaped by such political and economic interests highlighting the potential benefits that a development work would bring to the society and the country. However, importance to environment preservation cannot be ignored.

The effective implementation and enforcement of EIA is faced with the challenge of a lack of appropriate legislation and enforcement and costs of implementation. As seen in this essay climate change is inadequately addressed by EIA, which does not consider climate change risks and opportunities. There should be a regulatory framework with a legal mandate requiring consideration of EIA. The judiciary must exercise certain level of activism instead of affirming to government decisions, which can override reports of EIA.

Conclusion

This essay has found that EIA could be influenced by political and economic forces. The Paris Agreement remains a formal guidelines for signatory states subject to the discretion of national powers. The judiciary roles and decisions cannot intrude into the merits of government’s environmental and development policies. However, at the EU level, it is a different situation, where a state is faced with competing interest of another state subject to the established directives and laws, which violations could be redressed. Learning from this EU level experience, the UK needs a legal mandate and a regulatory framework that validates enforcement of EIA reports.

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Robert Jones and Thomas B. Fischer, ‘EIA Follow-Up in the UK — A 2015 Update’ (2016) 18(1) Journal of Environmental Assessment Policy and Management 1650006.

Bibliography

Tables of Cases

Berkeley v Secretary of State for the Environment [2000] UKHL 36

Bund Naturschutz in Bayern eV v Freistaat Bayern Case C-396/92, [1994] ECR I-3717

Czech Republic v Poland, (2021) Case C-121/21 R

Finn-Kelcey v Milton Keynes Borough Council [2009] Env. L.R. 17

Milieudefensie et al. v. Royal Dutch Shell plc. (2019)

Paul Abraham and Others v Région wallonne and Others, (2008) Case C-2/07

R. (on the application of Gerber) v Wiltshire Council [2016] 1 W.L.R. 2593

R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd [2020] UKSC 52

R (On the Application Of Finch) v Surrey County Council [2021] EWHC 170 (QB)

R (Packham) v Secretary of State for Transport [2020] EWCA Civ 1004

Books

Ryall A, Effective Judicial Protection and the Environmental Impact Assessment Directive in Ireland (Bloomsbury Publishing 2009)

United Nations Environment Programme (UNEP), An Introduction to Environmental Assessment (UN 2016)

Journals

Jones R and Thomas B. Fischer, ‘EIA Follow-Up in the UK — A 2015 Update’ (2016) 18(1) Journal of Environmental Assessment Policy and Management 1650006

Mercure JF, Hector Pollitt, Neil R.Edwards, Philip B Holdend, Unnada Chewpreecha, Pablo Salas, Aileen Lam, Florian Knobloch, and Jorge E.Vinuales, ‘Environmental impact assessment for climate change policy with the simulation-based integrated assessment model E3ME-FTT-GENIE’ (2018) 20 Energy Strategy Reviews 195-208

Reports

Environment Agency, ‘Environmental Impact Assessment (EIA): A handbook for scoping projects’ (2002) accessed 27 May 2021

Websites

Frost R, ‘European Commission takes Germany to court for failing to protect nature’ (2021) accessed 27 May 2021