UK ENVIRONMENTAL LAW & MANAGEMENT

-THOUGHTS & CONVERSATIONS 

Helen Tung Barrister, One Temple Avenue Chambers

QUESTIONS1. What are the main principles on the environmental assessment in the UK? EU?

2. What due diligence is utilised to identify environmental liabilities ?

(i) transportation;

(ii) industry;

(iii) residential;

(iv) creative industry;

3. What are the legal risks and implications for companies operating in the UK? EU?

INTRODUCTION

Environmental protection and pollution control EIA -100 countries worldwide (Donnelly, 1998)

‘EIA works best when..there is a specific legal requirement for its application, where an environmental impact statement is prepared, and where authorities are accountable for taking its results into consideration in decision-making’ (Kennedy, 1988)

  An important step in development countries as in

developed countries (Ahmad and Sammy, 1985; Bisset, 1992; OECD, 1992; Jones, 1999)

INTRODUCTION

Convention on Environmental Impact Assessment in Trans-boundary Context

Espoo Convention, obligations of parties to assessment environmental impact

Principle 17 of the Rio Declaration

Agenda 21

INTRODUCTION UN Convention on climate change on Biological Diversity (1992) cited

EIA =implementing mechanism of these conventions ( Art. 4, 14); Doha Ministerial Declaration encourages countries to share experience

and experience (Nov. 2001); UNECE (Aarhus) Convention on Access to Information, Public

Participation in Decision Making and Access to Justice in Environmental Matters (1998)

United Nations Conference on the Environment in Stockholm 1982

Multilateral and bilateral financial institutions environmental safeguards E.g African Development Bank (AfDB); Asian Development Bank (ADB); World Bank (WB); Environmental safeguards to ensure that financing of project is not only

based on the precautionary principle, preventive action rather than curative treatment but sustainable development (WBCSD, 2005)

1. WHAT ARE THE MAIN PRINCIPLES ON THE ENVIRONMENTAL ASSESSMENT IN THE UK? KEY WORDS

International Association for Impact Assessment (IAIA, 1999) = Participative: opportunities, inform, involve, interested,

affected, public, input, decision making.

Transparency: Assessment process, outcomes, decisions, open, accessible.

Certainty: process, timing, assessment, agreement

Accountability: The decision makers &project proponents= responsible to all parties, action, decisions.

Credibility: Assessment, professionalism, objectivity.

Cost - effectiveness: process, outcomes, least cost to society.

1. WHAT ARE THE MAIN PRINCIPLES ON THE ENVIRONMENTAL ASSESSMENT IN THE UK? KEY WORDS

Practical: practical outputs, relevant process, development planning, decision making.

Focused: process, significant environmental effects, key issues, making decisions.

Interdisciplinary: process, techniques, experts.

Integrated: process, interrelationships of social, economic and biophysical aspects.

1. WHAT ARE THE MAIN PRINCIPLES ON THE ENVIRONMENTAL ASSESSMENT IN THE UK? EIA PROCESS

a. Initial Environmental Examination (IEE): Adverse environmental effects - significant or mitigation. Environmental specialists b. Environmental Impact Assessment (EIA): Examine environmental consequences or impacts, both

beneficial adverse= integral Environmental audit (EA)

Screening: Determine proposal Initial Environmental Examination on Evaluation

Scoping: ID key issues of concern at an early stage of planning process (Ahmed & Sammy, 1987)

Ensure a relevant EIA , analysis, methods, interests, time, money Establish terms of reference (TOR) for EIA study (A. Ogola, 2007)

1. WHAT ARE THE MAIN PRINCIPLES ON THE ENVIRONMENTAL ASSESSMENT IN THE UK? PROCESS

Checklists: project type Matrices: identify interactions & actions   Networks: flow diagrams & relationships Consultations: decision – makers & interest groups Baseline data: trends and status

Impact analysis and prediction Evaluate impact and EIA process( Morris & Therivel, 1995) Extent of Impact: to what extent? Influence of impact?

Local? Regional? Trans-boundary impact? International?

Duration of Impact: 3 to 9 yrs short term 10 to 20 yrs Medium term? 20 yrs + Long term (A. Ogola, 2007)

1. WHAT ARE THE MAIN PRINCIPLES ON THE ENVIRONMENTAL ASSESSMENT IN THE UK? PROCESS

Significance of Impact: legal aspects Mitigation: alternatives, environmental & social benefits Avoid, minimise or remedy adverse impacts Environmental Management Plan (EMP)

Baseline Monitoring: survey basic parameters Impact Monitoring: biophysical & social-economical factors

e.g air, dust, noise, water pollution (European Commission, 1999)

ISO 14001:2004 Environmental Management Systems (EMS)

Public Consultation and Disclosure Other: Social Impact Assessment (SIA ( Vanclay, 1999) Health Impact Assessment (HIA) – ‘complete physical, mental

and social well-being and not merely absence of disease or infirmity’ (WHO, 1946)

1. WHAT ARE THE MAIN PRINCIPLES ON THE ENVIRONMENTAL ASSESSMENT IN THE UK? /SEA

3 Levels of assessment: Scoping, Simple and Detailed

Potential project Satisfy legal obligation

SEA = important -development and plans, including implementation of project

SEA may have bearing on scope of design and assessment activities

1. WHAT ARE THE MAIN PRINCIPLES ON THE ENVIRONMENTAL ASSESSMENT IN THE UK? /SEA SEA - in international agreements relating to

biodiversity:

Convention on Biological Diversity (CBD), 1998, 2000, 2002 and 2003;

Ramsar Convention on Wetlands (the Ramsar Convention) 2002 & 2004;

Convention on Migratory Species (CMS), 2002

1. WHAT ARE THE MAIN PRINCIPLES ON THE ENVIRONMENTAL ASSESSMENT IN THE EU? 4 Community Action Programmes implemented

between 1972 and 1992 (Glasson, Therivel, Chadwick)

5th Programme ‘Towards Sustainbility’ (1993- 2000)

6th Programme ‘Our Future, our choice (2001-2012)

1. Climate change 2. Protect nature and biodiversity 3. Reducing human health impacts from environmental

pollution 4. Sustainable development of natural resources and

waste

2. WHAT DUE DILIGENCE IS UTILISED TO IDENTIFY ENVIRONMENTAL LIABILITIES ?

(i) Transportation: Defra -Strategic Environmental Assessment

(SEA) Rural Development Programme in England

UK Law: England and Wales (by Section 105 of

Highways Act 1980, as amended by Highways (Assessment of Environmental Effects) Regulations 1988

Highways (Assessment of Environmental Effects) Regulations 1994, 1999, 2007

Changed wording to EIA

2. WHAT DUE DILIGENCE IS UTILISED TO IDENTIFY ENVIRONMENTAL LIABILITIES ?

(ii) Industry: 1. Biodiversity& Nature Conservation 2. Population including demographics, socio-

economics 3. Health 4. Land Use, Geology & Soils 5. Water & Flood Risk 6. Air Quality 7. Climate Change 8. Waste & Resource Use 9. Cultural Heritage including architectural and

archaeological heritage 10. Landscape

2. WHAT DUE DILIGENCE IS UTILISED TO IDENTIFY ENVIRONMENTAL LIABILITIES ?

(ii) Industry: The Town & County planning (Environmental Impact

Assessment ) Regulations 2011 (Statutory Instrument 2011 No. 1824)

County Council responsible for minerals development (quarries, tile work), waste management (e.g landlfill sites, recycling centres)

ISO 14001 Waste Management EMS

Offshore windfarms: European Commission (EC) guidelines (May 1999)

RenewableUK and NERC ‘Cumulative Impact Assessment (CIA) EIA & EC Habitats Directive 92/43/EEC

2. WHAT DUE DILIGENCE IS UTILISED TO IDENTIFY ENVIRONMENTAL LIABILITIES ?

(iii) Residential: BREEAM Section 19 of the Planning and Compulsory

Purchase Act 2004 Environmental Assessment of Plans and

Programmes Regulations 2004 Neighbourhood plans or supplementary planning

documents UNEP-SBCI, annual meeting and symposium the

Future of the Built Environment: Sustainability, Carbon Neutrality and Beyond, 12 to 13 May 2014 in Quebec City

Supported by UNFCCC & COP - 21

2. WHAT DUE DILIGENCE IS UTILISED TO IDENTIFY ENVIRONMENTAL LIABILITIES ?

(iv) Creative industry CSR

Branding

Social Media

3. WHAT ARE THE LEGAL RISKS AND IMPLICATIONS FOR COMPANIES OPERATING IN THE UK? EU?

• Directive 90/313 on Freedom of Access to Information on the Environment

Art. 2(2)(c) covers ‘any other natural or legal persons having public responsibilities or functions, or providing public services, in relation to the environment, under the control of a [governmental or administrative] body or person.’

Art. 2(a) ‘environmental information’

Case of Mecklenburg v Kreiss Pinneberg der Landrat (Case C-321/96, [1998] ECR I -3809)

3. WHAT ARE THE LEGAL RISKS AND IMPLICATIONS FOR COMPANIES OPERATING IN THE UK? EU?

Developer is required to provide an environmental statement made available to the public : Berkeley v Secretary of State for the Environment

House of Lords, quashed planning permission to rebuild part of a football stadium in London

Guerra v Italy(1998) 26 EHRR 357, (ECHR) to issue of access to environmental information. Applicant’s lived approx..1 km from a ‘high risk’ chemicals factory which produced fertilisers’ chemicals.

CONCLUSION

Delivery Cost effective approach Incorporate Making changes Decision-making Success Business decisions

Thank you

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