In 2014, the Environmental Impact Assessment (EIA) Directive was codified and the EIA Regulations are due to be amended this year. Recently, government think tanks have focused on potential EIA Screening threshold changes but in general there is a strong emphasis on streamlining the system and promoting efficiency. EIA Scoping is very much intended to produce a lean, fit for purpose Environmental Statement (ES) and this article explores the different approaches that can be taken to the scoping process, potential benefits and pitfalls.
What is EIA Scoping?
Scoping is a process by which the key potential significant impacts of the project are identified and, furthermore, methodologies identified for how these should be assessed (i.e. baseline data collection, technical assessment and assignation of significance).
Scope may vary from project to project, even for similar schemes due to constantly evolving industry guidelines, site specific issues and technology/development specific issues. Scoping is not (currently) mandatory. It is a discretionary process through which the decision maker can be asked to give an opinion on the content of an EIA. This is an important factor in the way in which Scoping is viewed by different parties.
Do we really need to bother with EIA Scoping?
Whilst some developers are more than happy to try and trim the scope of an EIA, to others, scoping can be seen as a bit of a bolt-on addition. As non-ES documentation is also required for application to be validated â€“ why not just include everything in the ES and guard against potential late information (Regulation 22) requests?
There are several reasons why we recommend against this approach:
- Subjects included in EIA are often subject to an increased level of scrutiny and if every potential area of impact is included, this is potentially more than is necessary. For example a flood risk assessment may be required to be undertaken to inform a planning application under the National Planning Policy Framework requirements – this does not necessarily mean that flood risk is a particularly sensitive issue, it may have been triggered by thresholds alone and so a high level of assessment and scrutiny is likely to be unwarranted.
- Overloading an EIA increases the burden on consultees and the relevant planning authority. Essentially, a bulky Environmental Statement is likely to slow down the determination process.
- Inclusion of all possible effects in an ES does not necessarily mean that risk of a Regulation 22 request is avoided.
- Finally, it is not necessary to include all possible studies because this is not the intention of the EIA Regulations, which require a focus on key environmental issues. The intention is to ensure that, prior to grant of consent, projects that are likely to have significant adverse effects on the environment are made subject to an assessment with regard to those effects â€“ significant effects, not every possible effect.
The benefits of Scoping
Experienced EIA practitioners will tell you that comprehensive scoping is of fundamental importance to the effectiveness of EIA and can bring many benefits. Effective scoping can:
- Help to control EIA budget and timescale – sufficient justification must, however, be provided when seeking to ‘scope out’ issues so trimming the scope may not always result in less work.
- Provide opportunity to make the most of specialist local knowledge.
- Improve quality of output by avoiding excessively long and repetitive ESs.
- Help to guard against risks of Regulation 22 requests and associated delays and costs.
- Scoping can focus LPA and consultee engagement on key EIA issues â€“ speeding up the decision making process and improving efficiency, clarity and transparency of decision making.
Scoping in practice
In practice, scoping methods typically run a balance between the precautionary principle / risk avoidance and efficiency in the decision making process / producing a focussed Environmental Statement. So, how to go about it â€¦
The formal process
Under the formal process, the first step is a formal request to the relevant planning authority under paragraph 13(1) of the EIA Regulations 2011. This is a standard (and typically seen as ‘best practice’) approach. Detail of the project and likely significant effects is required to be provided by the developer. To enable identification of possible effects, a certain level of analysis of baseline considerations must be undertaken but this should not be an unduly onerous exercise. The intention of this step is not to set the scope of the EIA in stone but to direct requirements for baseline studies.
The Authority is obliged to consult on the information and provide a Scoping Opinion within 5 weeks (unless otherwise agreed in writing). There is no fee involved.
For projects where it is very likely that EIA will be required (on preliminary review of thresholds and environmental sensitivities), there may be time and cost savings in undertaking a combined EIA Screening and Scoping Request.
The informal approach is not governed by the EIA Regulations and so is not subject to rigid requirements. It stands to reason that similar information will need to be provided to inform consultees but the information prepared can be tailored to the scheme and refined by consultee requirements.
Informal scoping therefore gives more flexibility in the scoping methods that are used. For example, for complex schemes â€“ scoping meetings may be requested taking a more proactive consultative approach. This can lead to opportunities for consultee feedback at an early stage, greater understanding and a more balanced approach in terms of responses.
An informal approach can also be more responsive to time and resource constraints as the applicant/agents will not be fully reliant on response time of relevant planning authority for the first step.
The onus is, however, fully on the developer/agents to co-ordinate the process, ensuring that all relevant parties are consulted and that the results are fed back through the relevant planning authority. Documentation and recording of responses and consultation attempts will be important.
As it will not be provided as part of a scoping opinion, pre-app advice from the planning authority should be applied for directly and it is possible that a fee may apply for this service (front loading a cost that can be considerable for larger schemes).
The real potential limitation to informal scoping is that of potential lack of clout. Consultation requests from a developer outside of the EIA Regulations (i.e. informally) lack authority and this may well affect the manner by which such requests are addressed by both the relevant planning authority and statutory consultees.
Choice of Approach
So there is a choice of approaches to take to EIA scoping. When deciding on which path to take, (whether formal, informal or a combination of both) it is worth bearing in mind a number of factors:
- Level of officer experience: there is an instinctive reaction from inexperienced officers or authorities to include everything and the kitchen sink to minimise risk of legal challenge from objectors. The best way to manage this is to engage the relevant planning authority, set out and explain the scoping process and keep officers apprised of the results of assessments. Essentially, maintain the scoping dialogue whether via regular correspondence, workshops or pre-app meetings.
- Political pressure: EIA is delivered via the planning system, over which there is significant political influence and this will inevitably exert pressures on the scope of EIA projects. EIA is a system, a process. But the screening and scoping stage is where politics are most likely to come in to play (aside from the decision making of course, but that is really one step past the EIA process). Bear in mind that there is always the fall back option of requesting a Scoping Direction from the Secretary of State if necessary.
- Track record with stakeholders: I am sure that everyone involved in EIA has experienced difficulties with responses from often overworked consultees â€“ delayed or poorly coordinated feedback resulting in minimal input, non-committal responses. It is difficult to advise on a sure fire fix for this. Try to engage consultees by encouraging input into the iterative process.
- Timescales and preferred methods of consultation: will also obviously have a bearing on the choice of method adopted.
Whichever approach is taken key points to remember are firstly to be alert to requirements to engage in industry specific systems (for example, NATS and the CAA for air traffic impacts). Look out also for specific consultation services that are not specifically required but may be beneficial. For example, Natural England will be required to respond to an EIA scoping Request but (due to recent cuts) their response is likely to be generic in nature. For more detailed and specific advice, consider the NE Discretionary Advice Service.
Secondly, and most importantly, remember that scoping is not a discrete exercise. Scoping should be an ongoing process throughout the EIA. Look to refine the scope of assessments as baseline data is collected and throughout the design and assessment stage to minimise the likelihood of Regulation 22 requests.
2015 EIA Regulation amendments
So we come back to where we started, the codification of the EIA Directive and the forthcoming revisions to the EIA Regulations.
Under the revised EIA Directive, it is required that, where a scoping opinion is issued then the EIA Report will be ‘based on’ that opinion and include the information that may reasonably be required together with a reasoned conclusion of the significant effects of the project on the environment.
If this measure is adopted in to the EIA Regulations, this will considerably increase the influence of the scoping process and minimise possibilities for iterative scoping. It is, of course, for member states to determine how to implement these requirements and time will therefore tell on this matter.”