Impact assessment: from whale to shark

ABSTRACT

My vision for good future impact assessment (IA) involves 1. IAs testing the impacts of the plan/project against environmental standards; 2. IAs applying the precautionary principle to impacts that are already globally problematic, with the assumption that those impacts are significant until the IA can show that they are not; 3. Making IA recommendations legally binding; and 4. Better scoping to allow IA to focus on only key impacts. These changes would turn IA from a (baleen) whale – imposing but toothless – into a sleek and effective shark.

KEYWORDS:

• Environmental standard
• precautionary principle
• key impacts
• impact assessment
• future

Almost fifty years after the US National Environmental Protection Act 1970 – that amazingly forward-looking piece of legislation which has led to impact assessment (IA) being carried out around the world – IA is now well-understood and often very effective. It helps to ensure that the negative environmental impacts of projects and plans are limited, that the public is more actively involved in project and plan decision-making, and that generations of developers and planners have learned about environmental impacts. How very relevant the original NEPA requirements still are, requiring preparation of

“ … a detailed statement by the responsible official on:

• the environmental impact of the proposed action;

• any adverse environmental effects which cannot be avoided should the proposal be implemented;

• alternatives to the proposed action;

• the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity; and

• any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” National Environmental Policy Act Sec. 102(2)(C))

The fourth point is particularly relevant today, with concerns about long-term soil quality, greenhouse gas absorption, reductions in fish stocks and other dimensions of ‘productivity’ or ecosystem services. However, at the same time, how sad and frustrating that these wonderful procedural requirements have not led to better protection of the environment worldwide. IA is a whale: imposing, beautiful, but missing a good set of sharp teeth.

My vision for a stronger impact assessment for the 21^st century would turn the IA whale into a shark. It would take IA from being simply a procedural requirement – assess impacts, take the assessment into account in decision-making – and turn it into a decision-making tool. But it would also restrict the application of the IA tool to a more restricted range of impacts, ensuring that IA is efficient as well as effective.

My vision has four strands, and applies to both project environmental impact assessment (EIA) and strategic environmental assessment (SEA):

1. IA tests against environmental standards

2. IA applies the precautionary principles

3. IA’s recommendations are legally binding

4. IA focuses only on key impacts

These are discussed in turn below.

1. IA tests against legal standards

Currently EIAs and especially SEAs often refer to environmental standards but do not clearly test whether the project or plan accords with the standards, much less ensuring that standards are not exceeded. The achievement of environmental standards would be facilitated if EIAs and SEAs tested against them, and plans/projects were required to meet them. Examples are:

Table

	Europe	USA	International
Air quality	European Air Quality Directive 2008/50/EC	Clean Air Act 1963 and amendments	World Health Organisation air quality guidelines 2005
Biodiversity	‘No net loss’ principle	Clean Water Act 1972 requirements for wetland ‘no net loss’^1	International Union for the Conservation of Nature ‘No net loss’ principle
Climate change	2030 climate and energy framework	State-specific greenhouse gas emission targets	Paris Agreement
Water quality	European Water Framework Directive 2000/60/EC	State water quality standards under the Clean Water Act 1972 and amendments	World Health Organisation guidelines for drinking water quality 2011

In my vision, where a project or plan would cause a standard to be exceeded, or would exacerbate an existing exceedance (a cumulative impact), the IA would have to suggest mitigation measures to achieve the standard. In the case of cumulative impacts, these measures might involve paying for mitigation measures for other plans or projects. If the plan or project does not allow the standard to be achieved (or at minimum if the plan/project does not include enough mitigation so that, if that mitigation was applied proportionally to all plans/projects, the standard would be achieved), then the IA would recommend that it is not given permission … and see ‘binding recommendations’ below.

In the short to medium term, this measure would help to achieve nationally and/or internationally agreed standards. In some cases, these standards fall significantly short of the levels of change needed to bring about good, sustainable environmental quality. For instance the world should have moved to ‘zero carbon’ decades ago to prevent irreversible climate change. However this approach would support a trend towards viewing the environment as a global, shared resource which is regulated accordingly, and which needs to be protected from the cumulative impacts of development. In the longer term, this requirement could trigger a wider debate about what environmental standards are really needed, and how they could be achieved by plans and projects.

2. IA applies the precautionary principle

Impact assessment currently often ‘guesses’. Impacts are ‘likely’ or ‘unlikely’, ‘significant’ or ‘insignificant’. It is difficult for decision-makers to give much weight to a statement that 200 new homes ‘are likely to increase air pollution’, when this is compares against ‘200 homes will provide housing for 500 people and will employ 500 people during their construction’, especially when IA results only need to be ‘taken into account’.

A contrasting example, which puts the precautionary principle into action, is Article 6(3) of the European Habitats Directive, which states that

“In the light of the conclusions of the assessment of the implication for the [internationally important nature conservation site] … the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned … ”

In other words, under the Habitats Directive, the assumption is that the nature conservation site will be negatively affected until and unless the proponent shows that it will not be: the onus is on the developer or planning authority to show that the site will not be negatively affected. This has led to major changes to plans and projects, including their cancellation. In the UK, for instance, a major port development in Southampton Harbour was not given planning permission because of its likely impacts on the bird populations in a Special Protection Area (SPA) (Department for Transport 2004). To deal with the cumulative impact of recreational pressure from new homes on ground-nesting birds at the Thames Basin Heaths SPA, most new housing developments within 7 km of the SPA must pay towards the provision of alternative recreation sites which draw dog walkers away from the heaths (Burley 2007). And thousands of car-free homes have been proposed in a city where the traffic from proposed new homes would increase air pollution in a sensitive Special Conservation Area (Oxford City Council and Levett-Therivel 2018). Similar changes have been made to plans and programmes in other European countries.

Basing IA on the precautionary principle could start with issues where it is clear that strong measures are already needed globally – for instance greenhouse gas emissions and biodiversity (World Economic Forum 2019). Under this approach, IAs would need to prove that their plans/projects have achieved a net gain (or at least zero loss) in biodiversity and a net reduction in greenhouse gas emissions. Over time, this approach could be expanded to other issues that are already problematic nationally and locally.

Developers will argue that such an approach is expensive, and will hold back much-needed development. However the Habitats Directive has led to creative solutions that improve people’s quality of life. For instance the requirement to provide SANGS (suitable alternative natural green spaces – see Natural England, n/d) to draw people away from some sensitive UK nature conservation sites has meant that residents now have more recreational opportunities, as well as helping to protect birds. Indeed, some of the new sites have been linked together into ‘SANGS trails’ (e.g. Bracknell Forest Council 2017): good for biodiversity, landscape, human health, and increasing the value of nearby homes.

3. Ia’s recommendations are legally binding

The recommendations of IA must become binding, not just ‘be taken into account’. IA must decide, not just inform. This would help to ensure that the IA and plan/project teams are in active and ongoing discussions; that the IA mitigation measures are implementable; that the IA is taken seriously; and that the IA has teeth.

IA recommendations are already binding in some countries. For instance, in Slovenia, the integration of environmental mitigation measures proposed in SEA is legally required (Cepuš et al. 2019), and in the Czech Republic, the planning authority must publish, alongside the plan, information on how the SEA requirements were taken into account (Musil and Smutný 2019). In the United States, although the National Environmental Protection Act ‘does not create a general substantive duty on Federal agencies to mitigate environmental effects’ (Executive Office of the President 2011), proponents must implement ‘mitigation commitments’ made as part of the planning decision through conditions of approval, grant or permit conditions, or other mechanisms (40 CFR 1505.3(a)-(b)).

As a short-term measure leading to longer-term binding IA recommendations, the plan or project team should explain and document why any IA recommendations have not been implemented. In the medium term (my vision is rigorous/brutal – ‘medium term’ is anything beyond five years from now) the IA recommendations regarding legal standards would be binding; and in the longer term all IA recommendations would be binding.

Clearly this gives much responsibility to IA practitioners. At both EIA and SEA level, these are typically either the developer or consultants paid by the developer, which may lead to a conflict of interest. Thre is already existing pressure for consultants to be rigorous and impartial where the project/plan and its IA are subject to public examination and/or the possibility of judicial review: no consultant wants to defend a clearly poor IA, or to be on the losing side of too many examinations or reviews. Additional possible measures to ensure that IA practitioners are professional and impartial include practitioners having to be regularly certified and re-certified, IA reports having to be reviewed and approved by an external party, or IA practitioners being commissioned by a third party to avoid bias.

4. IA focuses only on key impacts

My previous three IA recommendations would all make impact assessment more robust but also more expensive. Better scoping would make impact assessment more understandable and cheaper.

Scoping involves (amongst other things) identifying those impacts and alternatives that are significant, and weeding out those that are not significant. In theory this allows the impact assessment to restrict itself to important issues and disregard unimportant issues. In turn, this increases the benefit v. cost of impact assessment, makes consultation easier and more meaningful, and provides more useful (and less useless) information to decision-makers.

In practice, of course, this has not been the case. Concerns about future legal challenges or about planning permission being delayed because some minor impacts have not been assessed have meant that developers and planners have opted for comprehensiveness rather than efficiency. Impact assessments are hundreds, often thousands, of pages long. Consultants do more work, the impact assessment becomes more expensive, and everyone loses out (Arcadis 2016).

In my good future for IA, developers, planning authorities and statutory consultees would jointly scope the IA, with the opportunity for the public to comment on this draft scope. That scope would then hold true for the entire IA process unless robust new evidence arose to show that the scope should be expanded, for instance if effects that initially seemed minor become suddenly important. The scoping process would, from all the possible significant impacts, also identify the 3–5 key impacts of the project/plan, and the assessment would focus on those impact. The scoping process could also identify how long (in words/pages, video documentary time, app or whatever format IA takes in the future) the assessment for each topic should be, again with the possibility of revising this if new information comes forward as the project/plan evolves.

5. Conclusions

Together, these four changes would make IA slimmer and stronger: more like a shark and less of a whale. They would ensure that plan or project impacts are tested against legal standards. They would put the onus on plan/project promoters to show that they have protected key environmental assets. The IA mitigation measures would definitely be implemented. This would turn IA from merely a procedural requirement into a decision-making tool. And a more focused IA process would make consultation easier, help decision-makers to better understand what impacts really are important, and help to balance out the additional costs of the other three changes. With these changes, IA would turn from a whale into a shark.

Notes

1. https://www.americanprogress.org/issues/green/reports/2016/11/01/291509/no-net-loss/.