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Strategic Environmental Assessments: Decision-making all at SEA

About The Author

Former Author (Assistant Editor)

Author is a King's College London Law graduate, currently working as a corporate paralegal for a firm based in South West England. Author is due to begin his BPTC at the University of Law in September 2015, having attained a scholarship from Middle Temple.

The Strategic Environmental Assessment (SEA) Directive was implemented in 2001 by the European Union and sets a framework for a strategic assessment of plans or projects likely to have a significant effect on the environment. As has been widely publicised, the government plan to create a high speed rail route from London to Birmingham and beyond. Holly recently wrote an article on the property law implications of the project, but here I shall focus on the environmental aspects of the decision. The Supreme Court held in their decision that an assessment of the overall strategy is not required despite the magnitude of the project. The importance and requirements of the SEA have therefore been cast into doubt because the Directive was created with the express intention of being engaged in situations such as HS2.

The Directive is seen by some as a bureaucratic hurdle that ultimately slows down growth and prevents efficient decision-making. Whilst it is true that SEAs do require the assessor to undertake a detailed appraisal of the impacts of a proposed measure, many of the requirements are matters of good administrative practice. The driving focus of the Directive was to make the process of creating and implementing large-scale plans and programmes more transparent and reviewable at as early a stage as possible. The government’s approach over HS2 should be considered in light of the proposed changes to judicial review currently passing through Parliament which I previously wrote an article on. The decision of the government to contest the need for an SEA shows that their primary focus is to prevent any delay to growth, whether legitimate grievance or illegitimate.

The Directive is part of a wider framework of environmental decision-making framework that has been set up by the European Union. In addition to SEAs, there are EIAs (Environmental Impact Assessments) which are focused solely on individual projects and have much more limited scope for the consideration of alternatives. Then there is the wider protection for the natural environment through the ‘Natura 2000’ initiative, an EU-led project designed to establish fundamental protections of natural habitats through designation of special sites which require particular regulation and control.

The SEA Directive

The basic requirement of the SEA Directive is that an environmental assessment should be carried out for ‘plans and programmes’ which are likely to have significant effects on the environment. As defined in Article 2, Plans and programmes relevant for the directive are those which are subject to preparation or adoption by an authority at local or regional level and are required by legislative, regulatory and administrative provisions. Therefore these plans must be of a large scale, a typical example being the improvement of a major road network. Article 3 provides further that these plans must ‘set the framework for future development consent of projects listed in Annex I and II of the EIA Directive’. There have been several issues litigated with regards to the SEA Directive, most pertinently the requirement that the plan is ‘required by legislative, regulatory or administrative provisions’. The CJEU has had to deal with much of the litigation as the domestic courts have used the preliminary reference procedure to request an opinion from them. The CJEU have taken a very purposive approach to the implementation of the Directive and have construed it broadly, viewing the Directive as a vehicle to extend the protection of our environment, a goal that is now enshrined in Article 177 of the TFEU. Constitutional issues are rife when applying the Directive though, especially in the UK with its strong tradition of Parliamentary sovereignty, as the SEA Directive will often be engaged when dealing with planning issues which are actually outside of EU competence.

The HS2 Decision (here)

The decision in HS2 was predominantly concerned with whether the ‘Decision and Next Steps’ document presented by the Government after their Command paper was ‘required by legislative, regulatory or administrative provisions’ and whether the government had ‘set the framework for future development consent’. It is important when looking at this decision to understand the context and how the current position we find ourselves in has come about.

The implementation of HS2 was a very haphazard process which encompassed two Command Papers and then a consultation document. These ‘Command Papers’ were documents that set out the general schematics of the route including stations and other related infrastructure but did not assess the actual case for High Speed rail and the consultation was issued on the questions raised within. This process does not fit within the paradigmatic SEA approach, as one would usually expect the setting up of a framework or strategy document such as an overall transport policy document or a ‘High Speed Strategy’ so that a clear direction is set up for the policy of the government. It is undoubtedly the case that an SEA would have been expected if such an approach was taken as it would be a clear case where a framework impacted on future development consent, i.e. the decision to build HS2.

As this was not the case, the HS2 Action Alliance raised a judicial review on the grounds that there should have been a Strategic Environmental Assessment of the decision to promote the HS2 strategy and that the Command Paper had ‘set the framework for future development consent’. The Supreme Court was asked to determine whether or not the Secretary of State had been correct in allowing the project to continue without such an assessment being carried out. The HS2 Action Alliance attempted to get an SEA of the proposed railway because the Directive has a much greater focus on alternatives than provided within the EIA framework and thus there would have been the option to scrap HS2 entirely in favour of upgrading the West Coast and East Coast mainline tracks.

Constitutional matters were at the front of the mind of the court when delivering judgment in this case, as is most clear from the speech of Lord Mance. It is particularly striking that there was no reference to the CJEU on the subject, as it is highly likely that their interpretation of the facts of the case would have yielded a different result. Their purposive approach to the application of the Directive would have weighed heavily in favour of an SEA being required. It is undoubtedly the case that the constitutional issues of the case are relevant, although it is unclear whether they should have predominated to the extent that they did. The court held that the approach taken by the government to allow Parliament to debate a Hybrid Bill to approve the development should not be constrained by the application of the SEA which would have had to have been borne in mind during the process. It was stated that the Parliamentary process should not be constrained in this way because it would limit Parliamentary sovereignty.

It is my view that this misses the point of what the SEA was designed to do and what the Anti-HS2 campaigners were trying to argue in the courts. Large-scale projects such as HS2 require a coordinated and clear approach rather than a piecemeal progression from one stage to the next. The SEA Directive was specifically designed to deal with cases such as HS2 to ensure that environmental considerations were sufficiently considered and the timing of any assessment was made before development began in any meaningful sense. As stated above, the Environmental Impact Assessment regime deals with individual projects, of which Phase 1 of HS2 (the route from London to Birmingham) definitely falls under. This regime is designed to ensure that the project in isolation is delivered in the most environmentally friendly manner with a proper technical appraisal of the issues. However, the EIA does not have such a focus on the underlying rationale for a project as required by the SEA. The question of whether we should have high speed rail in this country has been the subject of much political debate, but there has been very limited study of the potential impact of the railway on wildlife and habitats. It will be too late for alternatives to be considered by the time that the EIA is completed and reported on as the approval for the project as a whole will have already taken place. This then casts the efficacy of the Directive in doubt.

Lessons for future

The decision in HS2 arguably reflects the prevailing attitude of the high levels of the judiciary that the approach of the CJEU should be viewed with scepticism and not blankly applied. The jurisprudence of the CJEU was in direct conflict to the approach taken by the Supreme Court and yet it was ignored. The question that we are left with is what does this mean for the efficacy of the SEA Directive and administrative decision-making more generally?

The main message to the government is that they can continue with the project without any further delays and have already brought forward the Hybrid Bill into the House of Commons. However, the approach of the government to HS2 is in marked contrast to the handling of gas and oil extraction activities in the North Sea. The oil and gas industry have been backed as a matter of policy by the government and enjoy considerable tax breaks for doing so. The government have ensured that SEAs were applied to coastal strategies even before the SEA Directive was passed in the EU. The assessments themselves have been commended as a very useful tool in considering the impacts of human activity on the natural environment, most notably the increase in ‘ocean noise’. This phenomenon was considered only marginally before the exercise of conducting SEAs of drilling activities and it has been found that this ocean noise can have very severe effects on marine life. The cost to the environment has been markedly reduced because of the data collected as a result of SEAs and it is disappointing to see that the same approach has not been applied to High Speed 2. I myself am in support of improving our rail links between the South East and the North of England and Scotland. However, I do not feel that there has been an adequate examination of the environmental impact of the policy and whether alternative approaches such as the improvement or modification of the West and East Coast mainlines or whether indeed such High Speed rail is needed at all. As stated in the National Planning Policy framework, the approach of the government should be promoting sustainable development, but how can we truly know if something is sustainable until we have all the requisite data to examine its effects?

Coherent thinking is essential when approaching issues as important as our future transport infrastructure and the SEA is a vehicle to ensure that this is done. The validity of the approach of the government to ignoring much of the animosity towards the project raises important questions about the accountability of our government. The Aarhus Convention, a very ambitious international treaty aimed at increasing public participation in administrative decisions, has most certainly been undermined in this instance. The consultation document focused solely on the question of whether to have an ‘Inverted S’ or ‘Reverse E’ rather than the more fundamental issue of whether HS2 was necessary at all. It will be interesting to note whether there is a hardening of this approach to public participation or whether this decision should be viewed in isolation because of the unusual direct involvement of Parliament in the planning system. Front-loading of participation and a detailed appraisal of the impact of a project enable the process to move much more smoothly as the details of each stage of the process must be considered and approved. It will be interesting to see whether the EIAs that are conducted for Phase 1 of HS2 provide an insight into how damaging failing to conduct an SEA could be to the public purse. £42 billion is an awful lot of money to be piling into a project when it is ultimately unclear if is an environmentally and administratively sound proposal.

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Tagged: Commercial Law, Environmental Law, European Union

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