Environmental Law: EIA, Uncertainty, and Legal Frameworks (2019/20)

This essay provides a critical analysis of Environmental Impact Assessment (EIA) and the inherent uncertainty within its processes, as defined by David P. Lawrence. The essay examines the application of EIA within the UK and European legal frameworks, including relevant case law, reports, policy, and legislation. It delves into the complexities of defining environmental problems, predicting future environmental conditions, and estimating impacts on receptors, all of which are subject to uncertainty. The discussion covers explanatory and prescriptive theories related to EIA, its evolution, and its role as a decision-making tool. Furthermore, the essay highlights the limitations of EIA, such as the challenges in determining spatial and temporal boundaries and the underestimation of uncertainties. The analysis considers the impact of Brexit on environmental policies and the importance of pragmatic approaches to address environmental concerns. The essay concludes by emphasizing the need for EIA to adopt a more pragmatic approach to ensure environmental sustainability and conservation in the face of these uncertainties, and that the EIA should act as a decision making tool and not just a decision aiding tool.

Running Head: ENVIRONMENT IMPACT ASSESSMENT
ENVIRONEMNT IMPACT ASSESSMENT
Name of the Student
Name of the University
Author’s Note

1ENVIRONMENTAL IMPACT ASSESSMENT
The Environmental Impact Assessment (EIA) practice has evolved as a conceptual
foundation for the development of a more reflective and more coherent theory which shall be
offered on the grounds of nature, role and types of theory and its levels.1 In other words, the EIA
is a theory which is established on the response of a public towards the policy with respect to the
environmental consequences of human activities. It started as the mechanism to force action
which later transformed into the mechanism for the consideration environmental issues in the
matters related to the public decision making.2 This transformation was due to the enactment of
National environmental Policy Act in the United States. There are explanatory and the
prescriptive theories to the concept where the former explains that the explanatory theory
contributes to the accumulation of knowledge whereas the latter explains the basis to resolve the
existing problems.3 In other words, while one deals with the explanation on the basis of the
establishment of knowledge, the other explains the basis to solve the issues which is the practical
approach to the problems. However, it can be explained that both the theories serve the purpose
of being constrained by the requirements laid down for the decision making process. The thesis
aims to establish the critical analysis of the theory on the basis of the case laws and various
policies and legislations in the perspective of European and UK Legal System.
Environment Impact Assessment is a set of assessment with respect to the environmental
effects and its consequences in a systematic way. It impacts the society and their environmental
issues largely by the way of ensuring healthier surroundings including that of forests, water
resources, atmosphere and air and other surroundings and in turn ensuring a healthy living and a
1 Davies P, European Union Environmental Law: An Introduction To Key Selected Issues (Routledge 2017)
2 Ibid
3 Borzel T, Environmental Leaders And Laggards In Europe: Why There Is (Not) A'southern Problem'. (Routledge
2017)

2ENVIRONMENTAL IMPACT ASSESSMENT
healthy surrounding to the people.4 This also results in the healthy living and habitat for the
animals and development of various species of flora and fauna. The assessment is mainly
conducted by the local planning authority and enables the authority to establish strategies for a
healthy surrounding and environment on the basis of an informed and surveyed assessment. The
assessment is undertaken with the prime purpose of evaluating environmental needs and
requirements, so that the surrounding natural environment can be preserved or cared for in the
manner that is desired.5 The lack of environmental care and the misuse of land, forests and water
bodies have contributed in the recent past to environmental degradation. What is particularly of
concern for administrators of environmental programs and policies in the UK is the release of
wastes into rivers, seas and oceans, which are polluting the water bodies considerably and which
are rendering them toxic for human and animal consumption and use. The Environment Impact
Assessment is aimed at surveying the condition of the natural environment, and to examine the
extent to which environmental degradation has taken place so that appropriate strategies and
measures can be immediately implemented to combat the damage that has occurred and to
prevent such damage from taking place again in the future.6 The general health and wellbeing of
animals, birds, human beings and various types of flora and fauna in the United Kingdom, is
what the EIA aims to achieve or to bring about by keeping a firm watch on the natural
environment and by preventing any destruction or damage taking place to this environment.7
The Town and Country Planning (Environmental Impact Assessment) (England and
Wales) regulations 2011 establishes the foundation to carry out an Environment Impact
4 Borzel T, Environmental Leaders And Laggards In Europe: Why There Is (Not) A'southern Problem'. (Routledge
2017)
5 Jack B, Agriculture And EU Environment Law (Routledge 2016)
6 Ibid
7 Ibid

3ENVIRONMENTAL IMPACT ASSESSMENT
Assessment program as a part of the application to plan for certain projects especially involving
those which are large and require complex strategies for environment sustainability. These
matters include those related to power station, refineries, processes related to industries, projects
in relation with transportation and transport services, dams, laying of pipelines, airports, and
other major projects in relation with that of developments involving environmental concerns.8 In
April 2015, it was found that the Town and Country Planning (Environmental Impact
Assessments) (Amendments) Regulations 2015 came in effect which led to various concerns
resulting in the screening of decision relating to the necessity of the environmental statement as
has been laid down in the Town and Country Planning (Environmental Impact Assessments)
(Amendments) Regulations 2011. However, it has been criticized on the ground that the
threshold for the development of residential properties, industrial estates, and other urban
properties and their developments would be raised from 0.5ha to five ha. A rise in development
projects is detrimental for the environment, especially the urban environment. The more houses
and estate there happens to be in the urban environment then it means that the overcrowding of
population takes place, resulting in the natural environment becoming polluted easily. The
purpose of conducting the Environmental Impact Assessment therefore gets defeated as the aim
of the EIA is to devise ways and means by which the natural environment can be protected
instead of contributing to the polluting of this environment.9 However, concerning the European
grounds, the Council of the European Union approved the changes that were being made to the
environmental impact assessment directive in April 2014 with respect to the new elements those
were altered for the inclusion of detailed provisions for screening which was subject to the
8 Barnard CS Peers, European Union Law (Oxford University Press 2020)
9 Sheate B, '1.7 Overview of The Stages Of The EIA Process' (Soas.ac.uk, 2020) <https://www.soas.ac.uk/cedep-
demos/000_P507_EA_K3736-Demo/unit1/page_14.htm> accessed 9 January 2020

4ENVIRONMENTAL IMPACT ASSESSMENT
reasonability of then developer.10 Further, in December 2016 it was found that the UK
Government has considered the proposed changes to the law and legislation and hence, has
launched a consultancy which effectively closed down in January 2017. These changes to the
law and legislation are changes that are of a pragmatic nature and are designed to ensure that
environmental protection measures which are introduced can be implemented with ease and
without harming the local population in any given way.11 However, it can be explained that in
October 2018 the governmental instruments confirmed that developers owe the duty to undertake
the Environmental Impact Assessment after UK decided to leave the European Union following
the decision in favor of Brexit ensuring the planning policy shall be continued. The
Environmental Impact Assessment is concerned entirely with environmental wellbeing in the UK
and it is not going to allow Britain’s exit from the European Union to impact the policies and the
measures that it undertakes in the country to ensure that the surrounding natural environment in
the UK is not negatively impacted. In fact the geographic purview of the operations and duties of
the EIA are limited to the UK alone, and are not likely therefore to be influenced in any given
way by the Brexit process. The laws and legislations that have been proposed prior to Brexit are
not going to be impacted to such a great degree as a consequence of Brexit.
European Union Legal System is a mixture of mandatory and discretionary procedures
for the assessment of environmental impacts. Such procedures are meant to take into account the
various ways and means by which pollutants and hazardous substances are released into the
environment and the specific ways by which environmental, soil and water pollution can be
averted in the European cities, towns and in the European countryside as a whole. The European
10 Sheate B, '1.7 Overview of The Stages Of The EIA Process' (Soas.ac.uk, 2020) <https://www.soas.ac.uk/cedep-
demos/000_P507_EA_K3736-Demo/unit1/page_14.htm> accessed 9 January 2020
11 Davies P, European Union Environmental Law: An Introduction To Key Selected Issues (Routledge 2017)

5ENVIRONMENTAL IMPACT ASSESSMENT
Union Legal System offers a motley combination of laws and legal procedures that can be
implemented to preserve and conserve the natural environment and which allows for strict
actions to be taken against those who are seen to behave in direct violation of this legislation.
The European Inopn Directive (85/337/EEC) in EIA is also called the EIA Directive which was
introduced in 1985 and underwent various amendments leading to the enactment of Strategic
Environmental Assessment directive 2001 which was later amended in 2014 according to which
the developers must comply to the disclosure of information in relation with the description of
project, environment concerns, and alternatives available including the significant environmental
impacts arising from the project, mitigation and non-technical summary. The Environmental
Impact Assessment is seen to maintain a fine balance between the laws and legislations that have
been introduced by the legal system of the European Union for environmental wellbeing and
development and the laws and legislations that have been proposed and introduced in the UK for
the same. It intends on carrying out its functions and duties in a manner that is entirely in
keeping with such legal procedures, with each and every provision in the concerned legal
instruments being adhered to at the time of implementation. This amalgamation of UK and EU
laws for environmental preservation and conservation by the EIA has contributed to its effective
functioning within the purview of the United Kingdom. 12
The theory has been widely criticized on the ground that EIA was enacted to be a
decision making tool and instead it turned to be the decision aiding tool. Ideally, the EIA is a
body that is expected to take and implement all pragmatic decisions that are related to
12 'Environmental Principles And Governance: A New Era For UK Environmental Law' (Burges-salmon.com, 2020)
<https://www.burges-salmon.com/news-and-insight/legal-updates/environmental-principles-and-governance-a-new-
era-for-uk-environmental-law/> accessed 9 January 2020

6ENVIRONMENTAL IMPACT ASSESSMENT
environmental conservation and preservation in the context of the United Kingdom.13 It is
supposed to come up with the types of decisions and measures that are guaranteed to combat
environmental degradation and which instead propose the ways and means by which the
continued damage which is taking place to the environment may be brought under control.
However, this is not something that the EIA has been seen to implement in the recent past.
Rather it has served as a decision aiding tool.14 Governmental decisions and ideas on the matter
of environmental wellbeing are aided and abetted by the people who serve on the board of the
EIA, instead of them opposing or actually taking the decisions that need to be adopted for
environmental wellbeing in the UK.15 This has to a considerable amount of dissent being
manifest regard the work and the duties of the EIA. The dissent is growing on the basis that the
influence of the tool on the decision making process and the decision made is quite limited. The
theory has further been criticized on the ground that the theory has excessively limited the scope
for the determination of the boundaries of space and time for the purpose of the project. 16If
spaces and boundaries cannot be adequately determined then it becomes difficult to understand
the extent or the area over which the environmental governance mechanisms are to be
implemented. The boundary is calculated on the basis of the assessment of the applicant and the
lead assessor. However, in practice, it is only the immediate and on-site concerns which are
highlighted in the assessment process. Further, the theory has been dissented on the ground that
13 Thames T, 'Environmental Impact Assessment | Environmental Impact Assessment | The Royal Borough Of
Kingston Upon Thames' (Kingston.gov.uk, 2020)
<https://www.kingston.gov.uk/info/200351/regeneration_and_internationalism/272/
environmental_impact_assessment> accessed 9 January 2020
14 'Check An Environmental Impact Assessment (EIA) - Mygov.Scot' (Mygov.scot, 2020)
<https://www.mygov.scot/eia/> accessed 9 January 2020
15 Borzel T, Environmental Leaders And Laggards In Europe: Why There Is (Not) A'southern Problem'. (Routledge
2017)
16 Ibid

7ENVIRONMENTAL IMPACT ASSESSMENT
systematic identification of the uncertainties in the environmental student are not much
emphasized and hence, the time and cost involved in the projects are affected due to such
ignorance. The cause of such ignorance is the concerns like the project changes, modelling
errors, errors in data and factors assumed while undertaking the project and so on. Any changes
in such factors including the assumption would result in the failure of the entire process of
Environmental Impact Assessment.17
Thus, it can be concluded that the uncertainties are the factors which are not known to the
assessor as well as the applicant and the aim of Environmental Impact Assessment should to
assess the impact of project on the environment and also the uncertain impacts that the project
continuation may bring and such calculations cannot be ignored on the ground of immediate on-
site assessment of the environment and its sustainability with the project. The Environmental
Impact Assessment needs to be conducting its operations in a more pragmatic fashion, by taking
into account the limitations or the drawbacks that are associated with specific types of laws,
legislations and sustainability projects. It can better ensure the goal of environmental
sustainability as well as environmental conservation and preservation than what it is able to at
the moment. The Environmental Impact Assessment has to take better care in addressing the
matter of uncertainty so that the procedures and policies introduced by the same work in favor of
environmental wellbeing rather than against it.
17 'New Legislation On Environmental Impact Assessment | Bathnes' (Bathnes.gov.uk, 2020)
<https://www.bathnes.gov.uk/services/planning-and-building-control/planning/planning-advice-and-guidance/new-
legislation-environ> accessed 9 January 2020

8ENVIRONMENTAL IMPACT ASSESSMENT
References and Bibliography
(2020) <https://www.allaboutlaw.co.uk/stage/areas-of-law/environmental-law> accessed 9
January 2020
(Iema.net, 2020) <https://www.iema.net/assets/uploads/EIA%20Q%20Mark%20Presentations/
Adams%20Hendry%20-%20EIA%20Regs%202017%20What%20you%20need%20to
%20know.pdf> accessed 9 January 2020
(Infrastructure.planninginspectorate.gov.uk, 2020)
<https://infrastructure.planninginspectorate.gov.uk/wp-content/ipc/uploads/projects/.pdf>
accessed 9 January 2020
(Landmarkchambers.co.uk, 2020)
<https://www.landmarkchambers.co.uk/wp-content/uploads/2019/06/Environmental-Impact-
Assessment.pdf> accessed 9 January 2020
(Lexisnexis.com, 2020)
<https://www.lexisnexis.com/uk/lexispsl/environment/document/393763/5M00-NN11-F18C-
1020-00000-00/UK_environmental_law_overview> accessed 9 January 2020
(Uk.practicallaw.thomsonreuters.com, 2020) <https://uk.practicallaw.thomsonreuters.com/6-
503-1654?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1>
accessed 9 January 2020
Barnard CS Peers, European Union Law (Oxford University Press 2020)
Borzel T, Environmental Leaders And Laggards In Europe: Why There Is (Not) A'southern
Problem'. (Routledge 2017)

9ENVIRONMENTAL IMPACT ASSESSMENT
'Check An Environmental Impact Assessment (EIA) - Mygov.Scot' (Mygov.scot, 2020)
<https://www.mygov.scot/eia/> accessed 9 January 2020
Davies P, European Union Environmental Law: An Introduction To Key Selected Issues
(Routledge 2017)
Delereux T, The EU As International Environmental Negotiator (Routledge 2016)
Development PE (EIA), 'Environmental Impact Assessment (EIA)' (Adas.uk, 2020)
<https://www.adas.uk/services/Environmental-Impact-Assessment-EIA> accessed 9 January
2020
'EIA: What? Why? When? – EIA Online Learning Platform' (Iisd.org, 2020)
<https://www.iisd.org/learning/eia/eia-essentials/what-why-when/> accessed 9 January 2020
'Environmental Impact Assessment - Environment - European Commission' (Ec.europa.eu,
2020) <https://ec.europa.eu/environment/eia/index_en.htm> accessed 9 January 2020
'Environmental Impact Assessment – Joint Technical Consultation (Planning Changes To
Regulations On Forestry, Agriculture, Water Resources, Land Drainage And Marine Works) -
Defra - Citizen Space' (Consult.defra.gov.uk, 2020) <https://consult.defra.gov.uk/housing-and-
planning/environmental-impact-assessment-eia-changes/> accessed 9 January 2020
'Environmental Impact Assessment (EIA) | Department Of Agriculture, Environment And Rural
Affairs' (DAERA, 2020) <https://www.daera-ni.gov.uk/articles/environmental-impact-
assessment-eia> accessed 9 January 2020

10ENVIRONMENTAL IMPACT ASSESSMENT
'Environmental Impact Assessment | Arcus Consultancy Services' (Arcusconsulting.co.uk, 2020)
<https://arcusconsulting.co.uk/services/environmental-management-and-eia/environmental-
impact-assessment/> accessed 9 January 2020
'Environmental Impact Assessment | Land Use Planning - The RSPB' (The RSPB, 2020)
<https://www.rspb.org.uk/our-work/our-positions-and-casework/our-positions/land-use-
planning/environmental-assessment/environmental-impact-assessment/> accessed 9 January
2020
'Environmental Impact Assessment: In-Depth | Croner-I' (App.croneri.co.uk, 2020)
<https://app.croneri.co.uk/topics/environmental-impact-assessment/indepth> accessed 9 January
2020
'Environmental Principles And Governance: A New Era For UK Environmental Law' (Burges-
salmon.com, 2020)
<https://www.burges-salmon.com/news-and-insight/legal-updates/environmental-principles-and-
governance-a-new-era-for-uk-environmental-law/> accessed 9 January 2020
'Environmental Principles And Governance: A New Era For UK Environmental Law' (Burges-
salmon.com, 2020)
<https://www.burges-salmon.com/news-and-insight/legal-updates/environmental-principles-and-
governance-a-new-era-for-uk-environmental-law/> accessed 9 January 2020
'Information Leaflet 5 | What Is Environmental Impact Assessment (EIA)? | Planning Portal'
(Planningni.gov.uk, 2020)
<https://www.planningni.gov.uk/index/advice/advice_leaflets/leaflet05/leaflet05_what_is.htm>
accessed 9 January 2020

11ENVIRONMENTAL IMPACT ASSESSMENT
Jack B, Agriculture And EU Environment Law (Routledge 2016)
'Legislation.Gov.Uk' (Legislation.gov.uk, 2020) <http://www.legislation.gov.uk/all?
theme=environment> accessed 9 January 2020
'New Legislation On Environmental Impact Assessment | Bathnes' (Bathnes.gov.uk, 2020)
<https://www.bathnes.gov.uk/services/planning-and-building-control/planning/planning-advice-
and-guidance/new-legislation-environ> accessed 9 January 2020
Sheate B, '1.7 Overview of The Stages Of The EIA Process' (Soas.ac.uk, 2020)
<https://www.soas.ac.uk/cedep-demos/000_P507_EA_K3736-Demo/unit1/page_14.htm>
accessed 9 January 2020
Thames T, 'Environmental Impact Assessment | Environmental Impact Assessment | The Royal
Borough Of Kingston Upon Thames' (Kingston.gov.uk, 2020)
<https://www.kingston.gov.uk/info/200351/regeneration_and_internationalism/272/
environmental_impact_assessment> accessed 9 January 2020
'The New EIA Directive And UK Water Impact Assessment Practice | WYG | Global
Consultancy' (Wyg.com, 2020) <https://www.wyg.com/news-and-press-releases/the-new-eia-
directive-and-uk-water-impact-assessment-practice> accessed 9 January 2020
Thornton J, “Significant UK Environmental Law Cases 2017/18” [2018] Journal of
Environmental Law
'Understanding EIA' (Cseindia.org, 2020) <https://www.cseindia.org/understanding-eia-383>
accessed 9 January 2020

12ENVIRONMENTAL IMPACT ASSESSMENT
'What Is An EIA? | Examchum' (ExamChum, 2020) <https://www.examchum.uk/landscape-
architecture/eia-environmental-impact-assessment/> accessed 9 January 2020