Environmental outcomes – friend or foe?

Summary

• As a part of a prolific run of policy consultation and updates in the planning world, the Government recently published and sought views on how a proposed new system of environmental assessment (Environmental Outcomes Reports or EOR) could work as a replacement to the existing SEA/EIA regimes (here).
• The consultation was published on 17 March 2023 (here), and runs until 9 June 2023.
• There are 26 different questions posed and a helpful summary included as Table 2 under paragraph 10.4 as to what they consider to be the differences between the existing system and the proposed new regime (and, by implication, the improvements promoted by the latter).

Background issues

In a rare bit of potential "cross-party" consensus, I expect most participants within the infrastructure planning regime (whatever their role) will agree that the current approach to environmental impact assessment (EIA) could be improved.

In summarising the intended improvements (see paragraph 1.5 in particular), the Consultation recognises the existing flaws. In no particular order:

• for communities – unintelligible and inaccessible information, which makes it difficult to understand the key issues which they may be interested in;
• for developers – onerous and excessive expectations in terms of document production with associated cost, yet still with an undertone of legal challenge risk;
• for decision-makers and their statutory advisers – needing to interpret and/or make robust decisions based on the above-mentioned information; and
• for professionals – having to produce/review all of this information, with expectations of a precautionary approach and precedent often compounding the problem.

To that end, trying to address the systemic issues and focussing on (i) inefficiency, (ii) duplication, (iii) risk aversion, (iv) loss of focus and (v) issues with data is an ambition that I expect most participants have a common interest in supporting.

Same but different?

However, having identified those underlying "symptoms" with the current regime, the "remedy" set out in the consultation is underwhelming.

Given the detail of what the "Outcomes" will be is still to follow, it's probably reasonable to hold off too much criticism of how the revised report/assessment process will work – the biodiversity example given in Annex A of the Consultation may be an outlier, I expect (given its quantifiable nature)). However, as an initial observation, the suggested template for an Environmental Outcomes Report described in paragraph 5.7 does not sound markedly different from how current EIAs are set up, save for substituting "an assessment of contribution towards achieving an outcome supported by the indicators set out in the guidance" in place of the summary of likely significant effects that assessments under the current regime would include. As such, I'm instinctively sceptical as to how much "inefficiency" or "duplication" this change will remove, and it's also not obvious how "Outcomes" as a concept can limit "risk aversion" without more fundamental changes around scoping and, frankly, also the culture/bravery from those bodies/decision-makers responding to scoping requests.

Or worse?

Whilst I think that may end up simply re-framing the same issue and so doesn't materially alter the current position, I worry the Government's (well-intentioned) proposals around mitigation, monitoring and adaptive management may create more problems than it solves (at least from a project delivery perspective).

The Consultation sets out various propositions in relation to mitigation and monitoring, but broadly from the perspective of the merits of "adaptive management" and that greater monitoring is required to verify whether the Project's impacts (including the delivery of its mitigation) are as predicted in the EIA. This is informed by feedback received stating:

"Users and stakeholders have told us that monitoring is critical in ensuring that assessment actually works, and to allow lessons learnt to be fed into the environmental design of future projects. Continuing high levels of scientific uncertainty mean that many users, academics and practitioners now regard it as the most important element of environmental assessment." (paragraph 8.5)

 "Developers and infrastructure providers also acknowledged the benefits better monitoring could provide – they were particularly interested in terms of better access to robust environmental data which could be used to inform future assessments, and certainty about the degree to which proposed mitigations are effective. They were generally supportive of monitoring – provided it was carried out for a clearly defined purpose (ie was targeted to the uncertainties in the assessment; proportionate to the nature and scale of the project; and liabilities and timeframes were limited)." (paragraph 8.6)

There are reasonable levels of commonality in that feedback, notwithstanding the different perspectives/interests.

The Consultation notes that:

"Improved monitoring will benefit all parties as it will provide accessible data and reduce areas of uncertainty and the risk of delay in examinations. Better monitoring could help identify which types of effects are predicted less accurately than others, allowing industry to innovate to improve prediction, assessment and mitigation techniques. Monitoring could also help provide more accurate baseline data for future assessments, improving the accuracy of EORs." (paragraph 8.8).

I imagine most readers are nodding at this point (I was anyway). Monitoring to improve understanding and produce data to reduce uncertainty should help to address "risk aversion" in future assessments, which should in turn lead to more stream-lined assessments. There's a good recent example from the offshore wind sector on seabird avoidance rates with offshore wind farms (here). I can see that some projects may resent having to carry out monitoring on an almost altruistic basis where they don't have a pipeline of future development; however, in general, more coordinated monitoring and sharing of data seems a really sensible proposition and easy enough to implement.

However, what I consider is problematic in relation to the proposed monitoring requirement is the other described purpose to such proposals:

"…will give the government the powers to require assessments, and any mitigation measures proposed, are properly monitored to ensure they are delivering the level of environmental protection envisaged in the EOR. If the anticipated levels are not met and remediation proves necessary, it will be pursued and enforced." (paragraph 8.7).

I understand the conceptual attraction/logic of enforcing remedial steps where proposed mitigation is not delivering its intended effect; however, the practical realities of this are much more difficult. What is the scope of the monitoring, what does "enforcement" mean in this context, and what is the implication if the mitigation can no longer have the intended effect (for whatever reason)? Is it simply try again/do more, a financial penalty or, in extremis, a stop condition on the project and how will that judgment be made? Will it vary by environmental "Outcome"? Who is the developer reporting the monitoring results to? Also, good luck with any project financing to the extent you have these types of monitoring conditions hanging over you if the scope of any resultant liability is not clear, open-ended or potentially costly.

Perhaps an over-reaction and all will seem a lot more innocent once the detail has evolved; however, there's a slight hint of Pandora's box about this to my mind.

The alternative, which I accept may not be popular from particular viewpoints, is to have no consequence to the individual project of their monitoring. It's simply a requirement to carry out and provide the monitoring data. You would still get all of the upside from improving understanding/data and more proportionate assessments by consequence. I expect you may also find you get more detailed (and so useful) monitoring results by consequence if it's not being prepared through the prism of demonstrating 'compliance' or not for the purpose of penalising that project. In other words, a "no blame" culture. The focus would not be on potential enforcement/remedial steps, but rather on having access to data to understand the reason for any divergence of actual impact from that predicted in the project's EIA. This could then in turn inform future assessments and approach to mitigation. I personally think that would be a more effective and useful step in the medium/longer-term to improving the assessment of environmental impacts (or outcomes) and mitigating the risk of an actual impact than seeking to apportion fault.

This post was first published on HSF Energy and Infrastructure Consenting Notes - see here.

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