17.3.1 Background to European Union Environmental Impact Assessment

The Environmental Impact Assessment (EIA), also known as the Enviornmental Impact Statement in the United States of America, is ‘an examination, analysis and assessment of planned activities with a view to ensuring environmentally sound and sustainable development’ (United Nations, 1987). Although the definition of EIA does appear strikingly similar to that of SEA, the fundamental distinction between EIA and SEA is essentially one of tiering: SEA is carried out at an early stage to assess the environmental impacts of a proposed plan or programme; EIA is carried out at a later stage in the development process when the authority has undertaken the SEA process and is considering granting development con­sents for a specific development activity. Specifically in the context of the development of new nuclear programmes, the approach to EIA can be contrasted with the high-level approach to regulatory justification required by ICRP 60 (International Commission on Radiological Protection, 1990) and other legislative instruments developed within the European Union (see EC Directive 96/29/EURATOM) and transposed into European Union Member States (for example, SI 2004/1769 on nuclear justification in the UK). EIA is a detailed, project-specific assessment of the environmental impacts of a proposed project.

Notwithstanding the fact that the EIA process comes after that of SEA, it remains paramount that EIA is undertaken at a very early stage in the decision-making process, crucially before a decision is taken as to whether consent for the development should be granted. Relevant significant envi­ronmental issues should be identified and impartially examined, so that national authorities do not undertake or authorise the activities in question without serious prior consideration of their environmental impacts. To this end, EIA is a necessary legislative tool in any regulatory system which aims to promote a certain level of concern between economic development and environmental protection.

It is commonly accepted that the concept of EIA has its earliest roots in legislation from the United States, the National Environmental Policy Act 1969 (NEPA), which was passed largely in response to the public’s height­ened concern for the environment raised by Rachel Carson’s Silent Spring. The express purpose of NEPA was to ‘promote efforts which will prevent or eliminate damage to the environment’ by establishing ‘a national policy which will encourage productive and enjoyable harmony between man and his environment’ (NEPA, Section 2). NEPA established a legal mechanism whereby federal agencies were compelled to prepare a ‘detailed statement’ of the environmental impacts of proposed projects, a statement which became known as an Environmental Impact Statement, and to ‘study, develop, and describe appropriate alternatives’ to the proposed course of action (NEPA, Sections 102(2)(C) and (E)). The process under NEPA bears many similarities with the modern-day SEA and EIA processes, principally in that it aims to compel the institutionalisation of environmental concern, and to ensure that the views of a wide range of parties, including the public, are incorporated in the decision-making process.

Since the 1960s, the principles established by NEPA have been refined and developed and are now enshrined at an international level in a number of legal instruments. In 1987, the United Nations Environment Programme demonstrated its support for the concept of EIA through the publication of its ‘Goals and Principles of Environmental Impact Assessment’ (United Nations Environment Programme, 1987), a comprehensive overview of EIA methodology at national, regional and international levels. Further support was given to EIA by Principle 17 of the Rio Declaration which advocates the use of EIA as ‘a national instrument’ for ‘proposed activities that are likely to have a significant adverse impact on the environment’ (United Nations, 1992, Principle 17). The European Union has also passed several Directives requiring Member States to legislate for the assessment of the environmental effects of public and private projects, the most notable in this area being Directive 85/337/EEC (the EIA Directive) which, in general, has been transposed and implemented in all Member States.

It is clear, then, that the concept of EIA is widely accepted by the inter­national legal community, principally on the basis that the process should introduce a certain level of impartiality, transparency and accountability to decisions that will necessarily have a significant impact on the natural and human environment. EIA also provides a valuable opening for public par­ticipation in decision-making, even though public opinion will not neces­sarily prevent the project from proceeding. The United Kingdom House of Lords has held that the obligation on authorities is to ensure that the EIA process is an ‘inclusive and democratic procedure. . . in which the public, however misguided or wrongheaded its views may be, is given an opportu­nity to express its opinion on the environmental issues’ (Berkeley v Secretary of State for the Environment and Another [2001]). Public participation is a fundamental tenet of the EIA Directive regime, and is also a factor which becomes particularly poignant when considered in light of the obligations of many States under the Aarhus Convention (Aarhus, 1998) and certain international human rights agreements (such as the European Convention on Human Rights and Fundamental Freedoms). Specifically in the context of nuclear new build, the IAEA International Nuclear Safety Group (INSAG) has emphasised the importance of public participation as a way of ensuring public confidence in the safety of nuclear installations (INSAG, 2006).