Following the advent of the EURATOM Treaty (establishing the European Atomic Energy Community), European Union regulation in the field of nuclear installations has historically taken the form of EU Directives. As with international law, EU Directives are not directly applicable in Member States — they must be transposed into the national legal system by national implementing legislation. Two legal concepts have been particularly influ­ential in the regulation of the environmental impacts of nuclear installations

— Strategic Environmental Assessment and Environmental Impact Assessment. Both of these legal concepts are discussed in further detail below, as well as the national legislation which implements the relevant EU Directives in the UK.

European Union Strategic Environmental Assessment (SEA)

Strategic Environmental Assessment (SEA) is a mandatory legal require­ment in the European Union in respect of plans or programmes which are adopted by EU national public authorities. The SEA regime is a relatively recent concept that is derived from the Directive on strategic environmen­tal assessment (SEA Directive 2001/42/EC), which was transposed into English law by the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004/1633). The objective of the Directive is to ‘provide for a high level of protection of the environment’ by ensuring the ‘integra­tion of environmental considerations into the preparation and adoption of plans and programmes’ (SEA Directive, 2001, Article 1). ‘Plans or pro­grammes’ is very widely defined and covers many types of activity, including many kinds of government policy statements.

The SEA Directive provides that an environmental assessment is to be carried out for all plans and programmes which are likely to have significant environmental effects. The assessment is to be completed prior to the plan or programme being adopted so as to ensure that environmental considera­tions are fully integrated in the process from the outset (SEA Directive, 2001, Article 4(1)), and reasonable alternatives should be identified, described and evaluated where appropriate, taking into account the objec­tives and geographical scope of the plan or programme (SEA Directive, 2001, Article 4(1)).

Plans and programmes requiring SEA

The SEA Directive and its transposition into the domestic legal systems of Member States of the EU establishes a statutory test to determine whether an SEA assessment is required:

1. Is there a specific legislative, regulatory or administrative requirement for the plan or programme?

2. Does the plan or programme set a framework for future development consents?

3. Is the plan or programme ‘likely to have significant environmental

effects?’

4. Does the plan or programme relate to a subject matter contemplated by the Directive? Plans or programmes prepared for energy purposes are expressly covered by the SEA Directive and so, in the context of the development of new nuclear power programmes, SEA will often feature as a mandatory requirement. (SEA Directive, 2001, Articles 2(a), 3(1) and 3(4))

A key issue for national, regional and local authorities therefore is to determine (in advance of approval) whether the proposed plan or programme is subject to the requirement of an SEA assessment. This will be important since SEA carries with it certain minimum administrative and procedural steps and requirements for consultation that lead to the produc­tion of formal documents such as the Environmental Report (akin to the Environmental Statement in a project-level Environmental Impact Assessment — see below). In the United Kingdom, a local authority’s decision may be challenged by way of judicial review if, for example, it incorrectly determines that an SEA is not required.

The United Kingdom government has taken the view that pure state­ments of general government policy do not fall within the scope of the SEA Directive, such as the Energy White Papers of 2006 (Department of Trade and Industry, The Energy Challenge: Energy Review Report, July 2006) or 2008 (Department for Business, Enterprise and Regulatory Reform, Meeting the Energy Challenge: A White Paper on Nuclear Power, January 2008), and so do not require an SEA assessment to be carried out in advance of their adoption or publication. This is for a number of reasons, the principal one being that the preparation of policy documentation is not specifically required by legislation or a mandatory administrative process. So how does an authority determine whether its proposed ‘plan or programme’ is subject to the requirements of the SEA Directive? The answer must lie, to a certain extent, in the SEA Directive itself, but particular consideration must also be given to what, in practice, the drafting of policy documents will lead to. Is the document one that is specifically required by legislation? Will it be used as a framework (or part of a framework) for subsequent development consent decisions? Are the issues it addresses ones that are likely to have significant environmental effects? If the plan or programme is to proceed on the basis of identifying development suitability on a site-specific basis, there will inevitably be greater pressure to ensure that SEA is undertaken.

Take the proposed United Kingdom Nuclear National Policy Statement (NPS) as an example; all of these criteria are clearly met. Having addition­ally resolved to invite the nomination of specific sites for assessment against a range of criteria relevant to the subsequent grant of a development consent for new nuclear power stations, the United Kingdom government has accepted it is inevitable that the SEA process must be adhered to. For the nuclear NPS, the UK Department of Energy and Climate Change/ Office for Nuclear Development (OND) has indicated that an ‘Assessment of Sustainability’ (AoS) will be undertaken that discharges all the require­ments of the SEA Regulations. For this Nuclear NPS, at least, the AoS may replace SEA (see ‘Towards a Nuclear National Policy Statement’, OND, January 2009). Although it is now undertaking that process at the same time as drafting the NPS, the UK government recognises that formal stages of SEA are such that the draft NPS and the formal SEA Environmental

Report cannot be one and the same thing, but have to be offset. The NPS must have been issued in draft before the Environmental Report under the SEA Regulations can be prepared.

So, in cases such as this, policy makers are faced with the challenge of ensuring that there is adequate environmental investigation of the policy that they intend to put forward before the policy is formalised. In this respect, the United Kingdom’s forthcoming Nuclear NPS is expected to set the standard for the level of information required for the drafting of an NPS that is site-specific.