Implications of Brexit for environmental assessment in the United Kingdom – results from a 1-day workshop at the University of Liverpool

ABSTRACT

There is currently a lack of clarity for what the anticipated British Exit from the European Union will mean for environmental assessment (EA) in the United Kingdom (UK) in the medium to long term. It is within this context that a workshop was organised by the Environmental Assessment and Management Centre (University of Liverpool) and held in Liverpool on 14 June 2017, with the involvement of the Ireland-UK branch of the International Association for Impact Assessment. Seven speakers talked on various aspects of the potential implications of Brexit for EA in the UK. The letter provides the key messages delivered by the speakers and in doing so draws out the benefits and risks associated with Brexit. Overall, the workshop concluded with the message that Brexit has the potential to allow EA, and other environmental legislation to be revisited, updated and strengthened.

KEYWORDS:

• Brexit
• implications
• environmental assessment
• UK: United Kingdom

Introduction

On 23 June 2016, 51.9% of the participating electorate in the United Kingdom (UK) (i.e. 17.4M people; about 26% of the total population) voted to leave the European Union (EU) in a national advisory referendum. On 29 March 2017, Prime Minister Theresa May triggered Article 50 of the Lisbon Treaty on EU, starting a negotiation process of withdrawing the UK from the EU, which will come to a close on 29 March 2019. On 19 March 2018, a 21-month extension period was agreed between the EU and the UK, pushing the negotiation deadline back to December 2020.

The British Exit from the EU (Brexit) will have a multitude of impacts. What exactly these will include depends on the specific outcomes of the withdrawal process. The most wide-ranging impacts are associated with an option which has been dubbed as a ‘hard Brexit’, and which involves leaving the single market and the customs union. ¹ By the time of writing this paper (early 2018), the preference of the UK government appeared to be for this option, with certain exemptions, covering, for example, financial services which the government would like to see being able to continue selling services across the EU. However, as the EU has consistently stated that such ‘cherry-picking’ is unacceptable (see e.g. The Independent 2017, 20 November), and also as the House of Lords has continued to inflict defeats to the UK Government on its EU Withdrawal Bill (see below), it is still unclear what the result of the withdrawal process will be, and any predictions on potential impacts remain speculative.

In order to make the single-market work, common regulatory standards are in place throughout the EU. Associated laws govern relationships between European institutions, member states (MS) and citizens. Based on the Single European Act of 1986, next to the free movement of goods, persons, services and capital, the EU’s legislative competence also includes health and safety of workers, research and development, economic and social cohesion, as well as environmental protection (Fischer 2010).

In preparation for ‘Brexit’, in July 2017, the government started the process of a ‘Great Repeal Bill’. This is supposed to repeal the 1972 European Communities Act which took Britain into the EU. The 1972 Act meant that European law took precedence over laws passed in the UK Parliament. The Repeal Bill also aims at ending the power of the European Court of Justice in the UK. Initially, all existing EU legislation is meant to be copied across into domestic UK law in order to avoid what has been called ‘a black hole’ in the statute book of the UK (Bba 2017, p.2). This is of importance for environmental assessment (EA) – both environmental impact assessment (EIA) and strategic environmental assessment (SEA) – as this is currently prescribed by European Directives. After leaving the EU, though, any pieces of legislation may be altered or abolished, meaning that there is currently uncertainty about the future of environmental legislation in the UK.

There is a particular concern with regards to the future of EA in the UK. Already before the referendum, attempts were made to weaken EA, which was portrayed by some as a burden for investment and development (Department of Business Innovation and Skills 2014). In this context, Fischer et al (2016, p.106) observed that the UK government was ‘not a particularly keen advocate of EIA as a non-market based regulatory tool’. For instance, EIA screening thresholds were raised by the UK government in 2015 through amendment of the Town and Country Planning (Environmental Assessment) regulations. Amongst other things, this resulted in the thresholds for compulsory EIA in England for example new housing development being raised from 0.5 to 5 ha.

EA in the UK has a long history and practice is characterised by both significant achievements and ongoing challenges (see e.g. Arts et al. 2012). The UK EA system is amongst the most extensively reported and commented on in the world. A considerable number of authors of papers on EA in the English language international professional literature are based in the UK (Fischer and Onyango, 2012; Olagunju and Gunn 2016). Furthermore, in 2012, over a quarter of all master-level degrees revolving around EA and management in the EU were found to be offered by UK-based institutions (Fischer and Jha-Thakur 2013). There is therefore good reason to believe that any more dramatic changes to EA in the UK may have consequences that go beyond the UK with possible wider implications for EA systems elsewhere.

EA is not applied consistently in the UK and there are some distinct differences between England (which is directly governed by the UK government) and the devolved parts of Scotland, Wales and Northern Ireland, which are responsible for implementing their own environmental legislation. This makes any predictions of the effects of Brexit on EA in the UK even more complicated. Scotland deserves particular mentioning here, as it has pro-actively implemented distinct legislation aimed at demonstrating ‘world-leadership’ in SEA and EIA (Jackson and Illsley 2005).

It is within this context that we report on the results of a workshop on the potential implications of Brexit for EA (EIA and SEA) in the UK. This workshop, which was the first gathering dedicated to the topic in the UK, was held on 14 June 2017 at the University of Liverpool’s Environmental Assessment and Management Research Centre (https://www.liverpool.ac.uk/geography-and-planning/research/environmental-assessment-and-management-research-centre/about/) and was attended by 63 participants. About half of the participants were representatives of consultancies and the other half of academic institutions (including research as well as teaching staff and students), with one local authority employee (and impact assessment officer) also being present.

Background

As explained above, there is currently a lack of clarity for what the anticipated British Exit from the European Union will mean for EA in the UK in the medium to long term. In the short term, no major changes are expected as the associated European EIA and SEA directives will remain valid until 29 March 2019, and possibly for at least the extension period until December 2020. However, after that the UK Parliament will at one point start to ‘amend, repeal and improve’ laws. Depending on any potential economic consequences of Brexit (and literally all studies suggest negative implications for all options and scenarios), ² there may be particular pressure on legislation which is seen as a barrier to economic (GDP type) growth.

Considering existing pressures on and ‘streamlining’ attempts of environmental practices and standards by the current UK government, one possible consequence could therefore be a weakening of environmental policy. For SEA and EIA, this could mean for example raising thresholds for plans, programmes and projects requiring assessments further than what has already happened, or reducing timescales for preparing them. There is also the possibility that the UK government (but possibly not the other devolved governments) could abolish them. Comments in this direction have been made by for example the Foreign Secretary in a speech on 14 February 2018 (The Road to Brexit: A United Kingdom), stating that

We can simplify planning, and speed up public procurement, and perhaps we would then be faster in building the homes young people need; and we might decide that it was indeed absolutely necessary for every environmental impact assessment to monitor two life cycles of the snail and build special swimming pools for newts – not all of which they use – but it would at least by our decision.

On the other hand, the requirements for EIA and SEA are already enshrined in other international agreements that the UK is signatory to, notably the Aarhus Convention on public participation in environmental decision-making, ³ so it would need to untangle itself from these before it can make major changes to the EIA and SEA regimes. Furthermore, if the UK remained a member of the European Economic Area, as Norway is, then it will be required to comply with the EIA and SEA Directives, although not with the Habitats Directive (UKELA 2017). Friends of the Earth has already issued a complaint to the United Nations, claiming that the EU withdrawal bill breached the Aarhus Convention by not consulting the public on changes to EU-derived environmental law (Guardian 2018).

Currently there appears to be no defined strategy, process or initiative in place for engaging with or lobbying of the UK government with regards to how SEA and EIA may change. Whilst there clearly ought to be a role for the professional community in helping to shape future EIA and SEA and supporting the development of an effective decision support instrument for an environmentally sustainable development, the current UK government is showing very little interest, not just in SEA and EIA, but EA as a family of evidence-based anticipatory and participatory decision support instruments in general.

The workshop

It is within this context that a workshop was organised and held in Liverpool on 14 June 2017, with the involvement of the Ireland-UK branch of the International Association for Impact Assessment. Seven speakers talked on various aspects of the potential implications of Brexit for EA in the UK, including

• On SEA and EIA in the UK

  • how environmental aspects and the quality of decision-making had been considered before and after the introduction of the European EIA and SEA directives (John Glasson; Oxford Brookes University)

  • Strengths, Weaknesses, Opportunities and Threats (SWOT) of and for the UK EA system (Urmila Jha-Thakur and Thomas B Fischer, University of Liverpool)

  • Successes and failures of SEA in the UK (Riki Therivel, Levett-Therivel)

  • How to improve effectiveness of EIA in the UK (Rufus Howard, Royal HaskoningDHV)

  • How to lobby government (Josh Fothergill, IEMA)

• On international SEA and EIA experiences

  • The Swedish SPEAK project – at the time Europe’s biggest research project on Environmental Assessment (Kedar Uttam and Berit Balfors, KTH Stockholm)

Furthermore, one presentation was given that went beyond EA, looking at the need to assess the impacts of Brexit on different UK regions/localities. In this context, the potential usefulness for (Territorial) Impact Assessment (following the approach put forward by Fischer et al. 2015) was elaborated on (Olivier Sykes, University of Liverpool).

In addition to these talks, in the afternoon, discussions were held in six groups, focusing on the question on what future SEA and EIA should look like. These discussions revolved around different themes, including health, the role of academia, expectations of local authorities as well as opportunities and threats posed by Brexit. The aim of all sessions was to identify strategies for safeguarding existing EA achievements and for supporting further development of an effective EA regime.

Subsequently, main messages from the presentations are provided. A discussion of possible strategies for the future follows on from that.

John Glasson during his keynote presentation reflected on leading UK practice and guidance on EIA and SA (sustainability appraisal) undertaken well before the implementation of the EU Directives. A particular feature was the focus on major projects (e.g. North Sea oil and gas projects) with significant impacts on both, biophysical and socio-economic environments.

However, the EU Directives were seen as a force for good: introducing strong regulatory underpinnings, spreading good practice not only in the EU but also worldwide, and displaying a willingness to evolve to overcome perceived weaknesses, although it could be argued that they had held back a more integrated and comprehensive assessment process. The Directives have had positive impacts on decision-making for projects and plans, although the assessment of fundamental impacts on the environment still suffers from weak impacts monitoring.

For the future the message was one of ‘keep calm and carry on’; many European treaties are linked to international conventions (e.g. UNECE), which means that the UK’s commitment to EIA should remain largely unchanged. There are however opportunities for some consolidation of UK legislation, for more integrated assessment, and for more proportionate and shorter Environmental Statements (ES), utilising the rapidly evolving digital technology.

Urmila Jha-Thakur and Thomas B Fischer presented a synopsis of 25 years of EIA in the UK and conducted a SWOT analysis of the same (Jha-Thakur and Fischer 2016). The paper used the results of a SWOT analysis of the UK EIA System conducted by Glasson (1999) as the benchmark against which the recent findings were compared and contrasted. The results revealed that in terms of strengths and weaknesses, very little has actually changed for EIA. A majority of the changes are associated with weaknesses and threats, i.e. external factors. This implied two things, first that the UK EIA system is largely resilient to external factors and second, that there is a need for the EIA community to improve and enhance the internal factors irrespective of what the implications of Brexit would be.

Overall, the findings of the paper revealed that the perception of EIA stakeholders in the UK remain largely positive in terms of how effective EIA has been in influencing decision-making and enhancing environmental protection. Furthermore, the paper also touched upon the trend of increasing expectations amongst its stakeholders with what an EIA can achieve. Therefore, the conclusions emphasised that it is important for EA professionals to uphold the merits of EA and manage expectations realistically, thereby enabling the case of EA to be strengthened.

Riki Therivel noted that SEA has not only definite costs in consultant or authority time but also clear benefits in terms of improvements to plans (generally from more extensive at neighbourhood plan level to minimal at the national level; see also Fischer and Yu 2018; Therivel and Fischer 2012), evidence of plan sustainability and improved stakeholder engagement. SEA also acts as a ‘mock examination’ for plan-makers. The high-profile legal challenges of 2007–2013 and ongoing changes to the planning system have led to lengthy, ‘cover your tail’ SEA reports.

Local Plans Expert Group (2016, p. 35) suggested that SA/SEAs are ‘often of little genuine assistance to decision-making’. In contrast, a summer 2016 survey of English local authorities by Omar Ezzet (2016) found that 77% of respondents see SEA as an effective mechanism for producing environmentally sound and sustainable local plans, and 71% believe that SEA’s benefits outweigh its costs. Riki’s wish list for an improved future UK SEA system is

1. It exists

2. SEA reports (including appendices) should be <200 pages

3. Plan impacts should be tested against environmental standards/thresholds, and plans should help to achieve these standards

4. Assessment of cumulative impacts should be a key part of SEA

5. An explanation should be required if the plan goes against the SEA findings

6. Scrutiny of the post-adoption ‘SEA statement’ information should be required.

Rufus Howard explored how EIA can become more proportionate by using new technology and employing evidence-based practice and stakeholder consensus building. Rufus presented two case studies, one based on the Industry Evidence Programme (IEP) and the other showing an online example of a digital Environmental Statement.

The IEP is a sector-based review of Environmental Statements and monitoring reports, and multi-stakeholder engagement to develop shared knowledge resources to drive proportionate impact assessment through evidence-based practice. The project has gathered data on 50 offshore wind farms, consisting of over 3000 documents. A data review was undertaken taking a topic by topic approach to look for trends in environmental reporting and, where possible, see how the assessment has been carried forward into management action.

The project identified a lack of strategic overview of impacts, across projects, and poor communication between projects, stakeholders and over time. In essence, the data from the 50 projects are not centrally stored, analysed or cascaded to improve current and future practice. Furthermore, monitoring of predicted impacts, effectiveness of conditions and mitigations is limited and what has been undertaken is not widely known. The final deliverable for the project was the identification of 10 recommendations for practice and further research. One of the key recommendations is to create an online evidence hub that pulls together evidence from projects, government bodies, developers, NGOs and researchers to create a holistic repository of knowledge on the EIA for the sector. The evidence hub can then assist in gap analysis, dissemination of knowledge and support for a cross-sector community of practice. The steering group is currently in the process of seeking funding and delivery partners to carry forward the recommended actions.

Josh Fothergill tackled the subject of how we move forward with EA in the UK during and post-Brexit. In principle, when it comes to EIA and SEA at least, the approach is simple: the European Union’s requirements are already part of UK law and thus will be carried forward via the Government’s ‘Great Repeal Bill’. The situation, however, becomes more complex as we look beyond March 2019 (or December 2020) into the UK’s post-Brexit future.

As explained in the introduction, devolution within the UK means that environmental laws are managed by different Governments, Whitehall – covering the UK as a whole and England – the Scottish Government, the Welsh Assembly and the Northern Ireland Assembly. As a member of the EU, the UK had its EIA and SEA laws set at a continental level and then simply had to transpose them into UK laws, with occasional minor variations arising from devolution. Set adrift from the direction defined by the EU’s EIA and SEA Directives, EA within the UK is not just a single entity, which can reshape the future direction of UK environmental assessment, but four different Governments.

The Scottish Government has shown great support to EIA and SEA over the last decade, whilst Whitehall has, at times, appeared to be actively seeking to diminish the breadth and depth of their application. Further to this, the UK courts are likely to become the ultimate authority on resolving legal challenges, rather than referring cases to the European Court of Justice, which will also generate a more gradual drift from EA practice within the EU.

Josh concluded that the UK EA community need to focus on ensuring that practice is delivering value to project and plan-making, and at the same time, work with stakeholders to set out a positive vision and action plan for the future. There is a clear need to develop a broad collaborative consensus on how the UK can improve EA, rather than being frozen by the uncertainty generated by Brexit.

Finally, Olivier Sykes considered how wider impact assessment might be used to try and anticipate some of the wider territorial impacts of different scenarios to leave the EU. The anticipated or unanticipated territorial impacts of major changes affecting public policy can occur at a variety of geographical scales, including the global, continental, national, regional and local levels. Such impacts can have particular and varied consequences for certain regions or localities. In Europe, for example, such effects have been observed in relation to EU Directives and policies. Recognising this, since 2003, the European Commission has undertaken Impact Assessment (IA) of its policy proposals, to detect and evaluate potential positive and negative economic, social and environmental impacts. Work undertaken since the 2000s has also developed a suite of methodologies for undertaking Territorial Impact Assessment (TIA) of the impacts of EU legislation, policies and programmes. For example, a participatory TIA tool, to be applied to emerging European policies and directives, and used at EU MS level, with input from regional and local levels, was developed under the ESPON 2013 programme to help stakeholders to better anticipate and understand the territorial impacts of policy proposals (Fischer et al. 2015). In contrast to this, reflection on the varied territorial impacts of major policy decisions, the ‘proto-Brexit’ state is almost by definition ‘nationalist’ in its spatial imagination and scope. Not just in the commonly understood political sense, but in what geographers would call a ‘scalar’ sense in that it privileges an overwhelming focus on how the UK is doing ‘overall’ at the aggregate national level (as this is the level at which ‘Brexit’ must be seen to succeed for its advocates). At the time of the seminar there had been little thinking by government about the regional impacts of leaving the EU and how to try and suture an unevenly developed state like the UK, in which some territories are already ‘more equal than others’ due to variable levels of devolution and the natural functioning of spatial economies. These issues are given added impetus by the important role played by the EU’s regional ‘Cohesion Policy’ in UK regions since the UK joined the then EEC in the 1970s.

The prospect of the UK leaving the EU thus raises the urgent question of how the impacts on different places might be anticipated, planned for, and mitigated, an issue given added salience because

1. the UK is diverse, and impacts are likely to be felt differently/disproportionately in/on different places;

2. at the time of writing there is still precious little clarity on the shape and extent of any replacement regional policy;

3. recent months have seen further analysis, including from government, which suggests that on the basis of economic fundamentals (notably the forecast regional impacts of leaving the EU), and the continuing opportunities that could be offered to UK regions by a post-2020 EU Cohesion Policy, that the interests of the UK’s cities and regions (especially the economically weaker ones) would be best served by the UK remaining a full member of the EU.

Indeed the UK Government’s own impact assessments on the economic consequences of leaving the EU indicate – as already suggested by academic studies (Chen et al. 2017) – that impacts will be regionally varied across different parts of the UK and that some of the areas that will fare the most badly will be those that voted to leave the EU as they have economies that are more integrated with, and thus more dependent on, EU markets than a place like London.

It is in this context that an adapted form of the TIA methods, developed to gauge the impacts of EU legislation, policies and programmes, might potentially be ‘put into reverse’ to anticipate the impacts of any withdrawal/loss of these on different UK territories. Of course like any assessment tool and process, this would be dependent on a supportive context in which those who wield power ‘care to know more’ rather than less about the consequences of the decisions they take. When it comes to the territorial impacts of the UK leaving the EU, however, it is not yet clear if this is a high priority of the ‘proto-Brexit’ state and those interests which dictate to it.

Future of environmental assessment

Environmental assessment in the UK has a number of weaknesses, including the generation of unfocused and disproportional baseline data, problems in generating reasonable alternatives, lack of clarity about impact significance, an underdeveloped monitoring regime, insufficient input by the public and overly lengthy documentation.

However, it also has significant strengths. Both EIA and SEA are well established and well understood. They lead to improvements – sometimes significant improvements – in projects and plans (Arts et al 2012; Phylip-Jones and Fischer 2013). They increase public understanding of, and input to, projects and plans. Their benefits are generally seen as outweighing their costs (IEMA, 2011).

EA in the UK faces a number of threats. The political leadership at the national level is perceived as not being in favour of environmental protection and development, despite its recently published 25 year environmental plan (HM Government 2018). The environment has had little ‘voice’ in recent electoral debates. The UK Government may see Brexit as an opportunity to cut perceived ‘green tape’ by weakening, for example, screening thresholds and Habitat Regulations Assessment.

Furthermore, the prolonged period of austerity has led to capacity limitations of local authorities to deal with voluminous EIAs and other documentation (e.g. of HIA). Over time, there may be a threat not just in organizational and legal terms, but also in behavioural, lifestyle and ethical terms.

Brexit is not only a threat to the UK’s economy and environment, but also to those of the EU: in losing the UK, the EU will lose a relatively robust economy and a relatively environmentally conscious voice. The UK also has species and habitats that add significantly to the EU’s biodiversity.

The government’s devolution agenda – its encouragement of city regions, joint authority working and neighbourhood plans – provides opportunities. For instance, EA may be picked up at the regional level through devolved powers by mayors’ offices. Improved collaboration of authorities would not only achieve the legally required ‘duty to cooperate’ but could also be a way of better accounting for cumulative impacts. With regards to the devolved governments, implementing Brexit may mean that the UK is left with four nations subject to different EA requirements, in particular as some of the devolved parts may want their legislatures and planning regimes to continue to adhere closely to European Union practices. In Scotland, of those that were given a vote in the referendum of existing the EU, only 38% voted to leave the EU (as opposed to 53% in England) and the Scottish government has continuously expressed its desire to remain closely aligned with the EU. Here, Scottish and English political perspectives are markedly different.

The rapid expansion of the UK’s digital infrastructure could allow greater political engagement of the younger generations, and an associated increase in environmental protection activities, including EIA. A positive message could be built about how useful EA is for society, in terms of reducing future environmental risk and promoting environmental enhancement. In this context, improved proportionality of assessment and better monitoring in EA are key.

Overall, EA has been a force for good, has a growing and wide acceptance amongst key stakeholders and has led to the better and more systematic consideration of environmental issues in project and plan decision-making. And whilst there are some ongoing problems, there has been a willingness to address problems, and processes have evolved. Brexit has the potential to allow EA, and other environmental legislation, to be revisited, updated and strengthened.

However, the UK government’s lacklustre approach does not bode well. Many fear that, in the absence of European requirements, the government will strive to substantially weaken the instrument and reduce its usage. Having said this, there is of course the possibility of changes to the government in the future and how this might reshape the country’s approach towards the environment. In order to positively influence the way EA is approached and supported during the Brexit process and post-Brexit, those involved in EA need to better communicate its successes and highlight what would be lost if EA was weakened.

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. The single market removes barriers and harmonises rules across the 28 EU member states, allowing for free movement from one EU member state to another of goods, people, services and capital (the so-called four undividable freedoms of the EU). In the customs union, no customs duties are levied on goods travelling within it.

2. The European Parliament’s IA has been available since March 2017 (at www.europarl.europa.eu/ unitedkingdom/en/ukevents/brexit/brexitstudies.html), while the US think-tank the RAND Corporation’s IA on the implications for the US, the EU and the UK was published in December 2017 – the latter soberly highlighting that the ‘key question for the UK is how much worse-off it will be’ after leaving the EU (see www.rand.org/pubs/research_reports/RR2200.html).

3. The case of SEA Protocol and Espoo Convention are more complicated as they are EU-only agreements, but they supplement a previous ‘parent’ agreement that goes beyond EU Member States only (a ‘mixed’ agreement) and untangling from these mixed agreements might be problematic (UKELA, 2017).