Don't get carried away
EIA will carry on

Brexit will not result in a dramatic change to Environmental Impact Assessment (EIA) in the short term according to James Alflatt, Head of EIA at Bidwells.

The immediate implications of Brexit and EIA will very much be ‘business as usual’, he predicts, but he said that the Government’s publication of draft regulations related to the Revised EIA directive will give a clear indicator on the government’s view on EIA post-Brexit.

James, explained: “Currently the most pressing requirement is for the UK Government to transpose the requirements of the Revised EIA Directive into domestic legislation before May 2017, so we should be seeing some draft regulations out for consultation later this year.”

“The Revised EIA Directive places more onerous requirements on EU member states. It places greater focus on deliverable mitigation and post-consent monitoring and points to competent experts to undertake EIA.”

The publication of the draft regulations will give a clear insight into how serious the UK Government is in taking EIA forward post-Brexit.

James Alflatt, Head of EIA

James continued: “One scenario is that the UK Government may decide not to fully transpose the revised Directive requirements from the EU, therefore seizing the opportunity to dilute some aspects of the EIA regime.

“The tension this causes between signing up to more onerous EIA requirements so close to exit, versus what could be a diluted EIA regime post-exit will unravel over the coming months. Depending upon the UK’s approach, it could create potential loopholes leaving development projects at increased risk of legal challenge.”

However, he said that one of the overriding influencers in retaining EIA in the UK post-Brexit is that EIA is the subject of international conventions to which the UK is a party, and all are required by the United Nations Economic Commission for Europe’s Aarhus Convention. So an exit from Europe does not remove us from such conventions, which means that the UK’s commitments to EIA will remain intact largely as currently drafted.

James added: “Going forward, environmental legislation, including EIA, will be one of the key negotiation points as part of the UK’s future relationship with Europe. If the wish is to negotiate to stay within the European Economic Area Agreement (EEAA) – as Norway and Iceland have done – this will mean a considerable number of environmental directives, including EIA, will need to be fully complied with. In this scenario, business would continue as usual.”

“Where Brexit means a complete exit from the EU, including no EEAA, then the EIA regime as currently exists in the UK is, in my view, likely to remain largely untouched until the next term of Government, given that there will be so many other priorities, such as trade agreements and nurturing new relations.”

“Over time, with a complete exit, it is likely that we will see screening thresholds raised further for common development projects (Schedule 2), particularly relating to housing and urban development. This would be a ‘quick win’ with the objective of minimising the number of projects subject to EIA and speeding up the delivery of housing and economic development in the UK.”

“During the next two years, and beyond, it will be third party litigators which will, in my view, continue to influence change in the way EIA is conducted in the UK. With a complete Brexit, the UK Government will be seeking to dilute and relax many of the more stringent EIA requirements placed on developers. However, NIMBY attitudes will live on and fuel challenges under the Aarhus Convention to ensure that any dilution or changes the UK wishes to make with EIA, are carefully scrutinised.”

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