Mr. Philip Nugent:

I thank the Vice Chairman and members for inviting my colleagues and I to address them on the European Commission's proposals for a recast of the environmental impact assessment directive. My name is Philip Nugent and I am the principal officer in the planning section of the Department of the Environment, Community and Local Government. I am accompanied by Mr. Marian O'Driscoll, assistant principal officer, and Mr. Conor O’Sullivan, higher executive officer.

Environmental impact assessment, EIA, is a critical tool in managing and clarifying the complex interrelationships between development and the environment. It is a process that provides for an examination of the environmental consequences of development actions in a systematic, holistic and multidisciplinary way. As such, it is a critical aid to the decision-making process. The EIA directive was designed to ensure that projects likely to have significant effects on the environment are subject to a comprehensive assessment of environmental effects prior to consent being given. Since the first iteration of the directive in 1985, there have been changes to the legislation itself and to the practice of carrying out EIA both in Ireland and throughout the European Union. The policy and operational context for all stakeholders – whether they are consent authorities, project sponsors or developers, local communities or third parties - has become significantly more complex as a result. The European Communities (Environmental Impact Assessment) Regulations 1989 formally incorporated the requirements of the 1985 directive into planning and other project consent systems. Since that time, the amendments to the directive have also been transposed into the various project consent codes.

In so far as planning is concerned, the Planning and Development Act 2000 consolidated Irish planning legislation. Part X of the 2000 Act contains the relevant provisions in relation to the requirements of the EU EIA directive in so far as the planning consent system is concerned. Part 10 of the Planning and Development Regulations 2001, as amended, contains more detailed provisions in relation to Part X of the Act. The latter has been amended on a number of occasions recently in order to elaborate on the definition of environmental impact assessment, following a European Court of Justice, ECJ, ruling against Ireland in case No. C-50/09.

An EIA must identify, describe and assess in an appropriate manner, in light of each individual case and in accordance with articles 4 to 11 of the EIA directive, the direct and indirect effects of a proposed development on the following: human beings, flora and fauna; soil, water, air, climate and the landscape; material assets and the cultural heritage; and the interaction between these various factors. Part X of the Planning Act requires that an EIA must be carried out by the planning authority or An Bord Pleanála, as the case may be, in respect of an application for consent for development which comes within the scope of the directive, either by exceeding a quantity, area or other limit specified or because it does not exceed a specified limit but is deemed by the planning authority or An Bord Pleanála as having potentially significant effects on the environment.

The new draft EIA directive is aimed at strengthening existing provisions concerning the quality of the EIA, with the aim of achieving a high level of environmental protection. It is also intended to enhance policy coherence and synergies with other EU law instruments and to simplify procedures with a view to reducing unnecessary administrative burdens. Some of the main features include a requirement that projects which require assessment of environmental impacts under both the EIA directive and the IPPC directive would have to be assessed in an integrated or co-ordinated manner, including the appointment of one competent or facilitating authority; mandatory provision of a large amount of screening information by the applicant for all Annex II type projects; mandatory, and reasonably elaborate, screening decisions to be made by consent authorities for all Annex II projects; mandatory scoping of all environmental impact statements, which will now be called environmental reports, by the consenting authority in all cases where an EIA is required; accreditation of persons deemed competent to compile environmental reports; and all environmental impact assessments to be completed by the competent authority within six months of receipt of all relevant information.

The proposals were published by the European Commission on 26 October and discussed by the EU Working Party on the Environment for the first time on 31 October. The Cyprus Presidency has given over three meetings of the working party for discussion on the proposals. Parallel discussions also took place at a meeting of EIA experts from EU member states in Larnaca in November. A further meeting of this group is taking place today in Brussels.

As set out in our note, the draft directive is based on Article 192(1) of the treaty, on qualified majority voting and on the basis of co-decision with the European Parliament. The proposed changes contained in the draft directive will give rise to an increased need for additional administrative and professional or technical resources for the processing and carrying out of EIA by the competent authority. The requirements to issue detailed screening decisions and, in particular, to scope all environmental reports will add to the cost of dealing with consent applications in these cases. The requirement to align the EIA development consent with IPPC consent may give rise to substantial reorganisation of consent systems and a significant amount of amending legislation. It is considered that the proposed accreditation system and the time limit for delivering an environmental impact assessment consent will give rise to difficulties. In the context of time limits, it would appear that where a competent authority, for example, An Bord Pleanála, is unable to complete the environmental impact assessment for a major project within six months - as required under the draft directive - consent in respect of that project would have to be refused.

The carrying out of an environmental impact assessment is complex in terms both of process and the underpinning legislation. The proposals were published just over six weeks ago we are still examining the content of the directive in consultation with other stakeholders. After the limited consultation that has taken place, there is a view that the proposed directive may give rise to issues around the principle of subsidiarity by failing to allow for sufficient flexibility to member states as regards the choice of measures for compliance and their detailed implementation. I hope this brief overview has provided a useful background for questions or comments from members relating to the new environmental impact assessment directive.