EIA v EOR: How will LURA affect you?

From the commencement date of Boxing Day, the Secretary of State will have new powers under Part 6 of LURA to establish a system of Environmental Outcomes Reports (EOR) to replace EIA and SEA. The Government has indicated that EORs will only apply in England at first.

This may be the beginning of the end of environmental assessment as we know it. However, it is only the beginning of the end. For now, we have no implementing regulations, nor any draft text. The Government has consulted on some of the “principles” behind the EOR regime, but no response has been received.

So, readers do not have to start writing EORs for projects going ahead next year. Even when we get the draft regulations, the consultation has indicated an implementation period of up to two years.

But what do we know already about the likely shape of the future regime? Section 153(4) LURA explains that an EOR is essentially a written report which assesses the likely impact of the proposed project/plan “on the delivery of specified environmental outcomes”, together with any proposals for mitigation and monitoring. The specified environmental outcomes will be set out in regulations (see s.152 LURA), as will rules about when an EOR is required (see s.153).

The consultation tells us that the Government’s goal is to “simply and streamline” environmental assessment, and it indicates there may be several key areas of difference between EORs and EIA.

First, the focus of the assessment will shift from likely significant effects on the environment to reporting against pre-defined priority outcomes, using supporting “indicators” (to be set out in guidance). The consultation indicates that the “outcomes” would be high-level, with the example being an “increase in the abundance of protected species and supporting habitat”. They would cover a series of topics that align with the existing EIA regime, such as air quality and geodiversity. But, strikingly, the consultation does not propose an outcome related to climate change.

The second area of difference relates to screening. The Government thinks the current approach leads to too much litigation, and it wants clearer rules with less scope for judgement – albeit it is not clear how that is to be achieved. The consultation suggests changing the focus of the screening regime from the size of the development to its proximity to a sensitive site or receptor.

The third area that is proposed to change is scoping. Again, the consultation states that the current approach has limited value, requiring significant and duplicative work. The new proposal for EORs would be that a set list of pre-defined outcomes would all be “scoped in” to every assessment, whether or not there is likely to be a significant impact. While that could reduce litigation, it could also lead to increased reporting burdens.

There are two other provisions of LURA that should be noted. First, LURA section 164(2) sets out that the future EOR regulations can (a) treat anything done in relation to an EOR as satisfying a requirement under the Habitats Regulations and (b) disapply or modify any part of the Habitats Regulations where an EOR is required. That could potentially be the start of a longer term fusion of the two regimes.

Secondly, LURA section 156(1) tells us that the EOR regulations should not result in an overall level of environmental protection. EOR Regulations must also be consistent with the UK’s international obligations (section 156(2)).

So we have the outlines but not the details of the new regime. We will continue to provide updates as and when the Government gives further insight into its plans – watch this space!

This article is adapted from a presentation given by Odette Chalaby at No5’s recent Environmental Law for Development Seminar.