EIA Law the State of the Art

ine Ryall
1.

Environmental Impact Assessment (EIA) is the cornerstone of European

Community (EC) environment protection policy.

2.

The recent arrival of Strategic Environmental Assessment (SEA) clearly holds the
potential to strengthen the role played by project-level EIA in the gradual
transition towards sustainable development. See Directive 2001/42/EC (the SEA
directive). This directive was due to be implemented in the Member States by
July 21, 2004.

3.

The original EIA directive, Directive 85/337/EEC, has now been in place for
almost 20 years (recall that Member States were required to implement the 1985
directive by July 3, 1988).

The directive was the subject of substantial

amendments in 1997 (see Directive 97/11/EC), which aimed to tackle a number of

difficulties that had come to light in the day-to-day operation of the directive as
originally drafted.
4.

In June 2003, the EC Commission published a detailed report on the state of

implementation of the directive (as amended) in the Member States. This report
made grim reading. It documented a range of (apparently widespread) practical
problems with implementation of the directive on the ground at local level.

5.

These problems included: variation in the levels at which thresholds were set for
the Annex II projects; lack of monitoring of EIA activity, together with an absence
of data on EIA activity; the variety of approaches adopted to scoping; lack of
formal review procedures to confirm that the information provided by the
developer in the Environmental Impact Statement (EIS) actually complies with
the specific requirements set down in the directive; inadequate attention to the
consideration of alternatives in a number of Member States; ongoing difficulties
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with salami-slicing of projects; wide variations in the level of public

involvement in the EIA procedure; lack of clarity in the relationship between EIA
and other control systems such as Integrated Pollution Prevention and Control
(IPPC) and the Habitats directive at national level; current EIA practice does not
appear to pay sufficient attention to risk and health impacts; inadequate
mechanisms for ensuring access to justice; and the dearth of formal measures for
facilitating control of the quality of EIA procedures.
6.

EIA remains one of the most problematic areas of Community law in terms of
implementation and enforcement at local level. The EIA directive is a framework
directive. It leaves considerable discretion to the Member States as regards the
manner of implementation within the national legal system.

This approach

conforms with the principle of subsidiarity. It also aims to take account of the
(sharp) differences in legal and administrative cultures throughout the Member
States. However, this flexible approach leads (almost inevitably) to problems
with implementation and enforcement.

In many instances, it is difficult to

pinpoint the scope of the obligations created in the directive. The outer limits of a
Member States discretion are sometimes uncertain. It is vital, therefore, that
effective mechanisms are put in place for review of the exercise of Member State
discretion where individuals (either developers or objectors) and NGOs
complain that this discretion has been exceeded by the Member State and/or the
relevant competent authorities.
7.

The Commission report (noted above at para. 4) set out a number of detailed
recommendations as to how the implementation of the directive could be
improved in practice. At the top of the list of recommendations produced by the
Commission was an appeal to Member States to check their national
implementing legislation in light of the weaknesses identified in the
Commissions review and to remedy any shortcomings (see further para. 10
below).

8.

Other important recommendations included: improved recording and monitoring

of EIA activity at local level; careful attention to the screening process in
Member States where fixed mandatory thresholds have been set; wider use of
Commission guidance on EIA-related issues and a greater attention to training at
national level; the introduction of formal provisions for quality review of EISs;
and a strengthening of national planning/EIA procedures to ensure that any
conditions attached to a development consent are sufficient to prevent or mitigate
any predicted environmental harm.

9.

The Commission stressed the fundamental role of the following mechanisms in

improving the effectiveness of the EIA directive in practice: further research on
EIA-related issues; training for officials involved in EIA; enforcement action
against Member States in cases of incomplete or inadequate transposition. The
Commission also acknowledged that, in due course, further amendments to the
Community EIA regime may be required in order to deliver more consistent
application of EIA law throughout the Member States (in particular in the areas of
quality control, data collection and the approach taken to threshold setting and
cumulative impacts).

10.

The EIA directive has recently been the subject of further amendments (see
Article 3 of Directive 2003/35/EC).

The most recent amendments aim to

strengthen certain core elements of the EIA procedure. The Member States are
required to implement the new amendments by June 25, 2005.
11.

The main motivation behind the recent amendments is the rhus Convention
which was signed by the EC and by the (then fifteen) Member States in June
1998. The rhus Convention is a most significant international Treaty in the
environmental

field

(for

more

detailed

information

go

to

http://www.unece.org/env/pp). It entered into force on October 30, 2001. One

noteworthy element of the Convention is the strong emphasis that is placed on
access to justice in environmental matters. The Convention sets down basic

requirements regarding access to justice with a view to ensuring that information

and participation rights are effective and enforceable.

Article 15 of the

Convention deals with Review of Compliance and an innovative compliance

mechanism has been put in place. See Decision I/7 on review of compliance
(Lucca,

Italy,

October

21-23,

2002)

available

at

http://www.unece.org/env/pp/documents/mop1/ece.mp.pp.2.add.8.e.pdf.

12.

At the time of writing, Ireland has not, as yet, ratified the Convention.

13.

The amendments introduced to the EIA directive pursuant to Article 3 of Directive

2003/35/EC aim to bring Community EIA law into line with rhus requirements.
A number of changes have been introduced to the text of the EIA directive. For
example, Article 6, which deals with inter alia public participation, has been
expanded and strengthened - with a view to guaranteeing that the public
concerned by a proposed project have early and effective opportunities to
participate in the EIA procedure (see, in particular, Article 6(2), (4) and (6) of the
amended directive).

14.

Directive 2003/35/EC also inserts a new Article 10a into the text of the EIA
directive. This new Article is of particular interest for present purposes. Article
10a is based on Article 9 of the rhus Convention and concerns access to justice
where it is alleged that the right to participate in the EIA procedure has not been
respected by the relevant competent authority/authorities. The text of Article 10a
reads as follows:

[1] Member States shall ensure that, in accordance with the relevant national legal
system, members of the public concerned:
(a) having a sufficient interest, or alternatively,
(b) maintaining the impairment of a right, where administrative procedural law of
a Member State requires this as a precondition,
have access to a review procedure before a court of law or another independent
and impartial body established by law to challenge the substantive or procedural
legality of decisions, acts or omissions subject to the public participation
provisions of [the EIA] Directive.
[2] Member States shall determine at what stage the decisions, acts or omissions
may be challenged.
[3] What constitutes a sufficient interest and impairment of a right shall be
determined by the Member States, consistently with the objective of giving the
public concerned wide access to justice. To this end, the interest of any nongovernmental organisation meeting the requirements referred to in Article 1(2) [of
the EIA directive, as amended], shall be deemed sufficient for the purpose of
subparagraph (a) of this Article. Such orgnisations shall also be deemed to have
rights capable of being impaired for the purpose of subparagraph (b) of this
Article.
[4] The provisions of this Article shall not exclude the possibility of a preliminary
review procedure before an administrative authority and shall not affect the
requirement of exhaustion of administrative review procedures prior to recourse
to judicial review procedures, where such a requirement exists under national law.
[5] Any such procedure shall be fair, equitable, timely and not prohibitively
expensive.
[6] In order to further the effectiveness of the provisions of this [A]rticle, Member
States shall ensure that practical information is made available to the public on
access to administrative and judicial review procedures.
[Note that I have inserted paragraph numbers into the text of Article 10a above for
ease of reference.]

15.

A number of features of Article 10a should be noted. First, in the style of a

typical framework directive, Article 10a sketches the basic requirements for
access to justice in EIA cases in broad outline. The detail is left to be completed
by the Member States. A considerable element of discretion is left to the Member
States and a number of the obligations created within Article 10a are open to
interpretation.

16.

The basic requirement, set out in Article 10a para. 1, is that the Member States
must ensure that members of the public concerned (an important concept which
is now defined in Article 1(2) of the EIA directive, as amended) who satisfy a
locus standi test:
have access to a review procedure before a court of law or another independent
and impartial body established by law to challenge the substantive or procedural
legality of decisions, acts or omissions subject to the public participation
provisions of [the EIA] Directive.

17.

So, members of the public concerned must have access to a review procedure
where both the substantive and procedural legality of a decision concerning a
project falling within the scope of the EIA directive is open to challenge.

18.

Locus standi is addressed in Article 10a para. 3. It falls to the Member States to
set down the detailed rules governing standing, but the Member States discretion
is constrained by the core requirements set down in Article 10a para. 3. It is clear
that national standing rules must be consistent with the objective of giving the
public concerned wide access to justice. What exactly is contemplated by the
concept of wide access to justice is not explained in the text of the amended
directive, but it seems clear that a restrictive approach to standing would not sit
well with the obligation created in Article 10(a) para. 3.

19.

Special provision is made for environmental NGOs in terms of locus standi.

NGOs that satisfy certain basic requirement set down in Article 1(2) of the EIA

directive, as amended (i.e. NGOs that promote environmental protection and meet
any requirements set under national law) are deemed to have standing.
20.

Finally, the review procedures referred to in Article 10a para. 1. must be fair,
equitable, timely and not prohibitively expensive (Article 10a para. 5). It is
likely that this specific requirement will have a dramatic impact on certain aspects
of Irish judicial review practice and procedure, particularly in the context of costs
and delay.
expensive?

But what exactly is contemplated by the concept prohibitively

The text of the amended directive does not provide any further

guidance on this important practical point. (See most recently Carrickmines

Castle defender awarded costs Irish Times March 19, 2005). There is also likely
to be an impact on entitlement to civil legal aid and advice in the context of
challenges to decisions concerning projects that are subject to EIA. It is wellknown that it is currently very difficult to secure civil legal aid with a view to
mounting a challenge by way of judicial review in a planning/environmental case.
21.

The recent judgment of the European Court of Human Rights (Fourth Section) in
Steel and Morris v. United Kingdom, February 15, 2005, (the so-called McLibel
case), should also be noted here. This case concerned an alleged violation of
inter alia Article 6(1) of the European Convention on Human Rights concerning
the right to a fair trial (incorporating equality of arms). The full text of the
judgment is available at www.coe.int.

22.

Article 10a leaves a considerable amount of discretion to the Member States and
is loaded with deference to national procedural autonomy. That said, the new
provision may well have a strong impact in practice. The European Court of
Justice (ECJ) has always interpreted the EIA directive in a broad and purposive
fashion with a view to delivering the objectives of the directive in practice. The
Court has been careful to contain any Member State discretion within the
boundaries set by the directive. This approach is most likely to continue. Indeed

it is very likely that the ECJ will draw on the text of the rhus Convention to
support a robust interpretation of the newly amended text of the EIA directive.
23.

At the time of writing (April 10, 2005), there is no indication as to how the Irish
authorities propose to implement the most recent amendments to the EIA
directive.

24.

Note that Article 4 of Directive 2003/35/EC also introduces important

amendments to the IPPC directive (Directive 96/61/EC), including the addition of
a new Article 15a which is the equivalent of the new Article 10a in the EIA
directive concerning access to justice.

25.

Directive 2003/4/EC on public access to environmental information was due to be

implemented in the Member States by February 14, 2005. This directive repeals
and replaces an earlier directive on the freedom of access to information on the
environment Directive 90/313/EEC.

The new directive confirms and

strengthens the right of access and clarifies its scope. There is also a specific
provision in Directive 2003/4/EC concerning access to justice (Article 6) which
is cast in somewhat similar terms to Article 10a of the EIA directive. At the time
of writing, Ireland has not implemented Directive 2003/4/EC. The European
Communities Act, 1972 (Access to Information on the Environment Regulations),
1998 (S.I. No. 125 of 1998) purport to implement the requirements set down in
Directive 90/313/EEC.
26.

A detailed submission containing analysis and recommendations on giving effect

to the requirements of Directive 2003/4/EC in Irish law has recently been
submitted to the Department of the Environment, Heritage and Local Government
by Comhar (the National Sustainable Development Partnership).
available

at

www.comhar-nsdp.ie.

This

document

includes

Full text
detailed

recommendations on access to justice in the specific context of Article 6 of

Directive 2003/4/EC.

See, in particular, paras. 4.6-4.8 and 5.12 of the Comhar

submission. Note that the Comhar submission was informed by a study into the
implementation of Directive 90/313/EEC in Irish law undertaken by Friends of
the Irish Environment (FIE) (Access to Information on the Environment January
14, 2005). In the absence of national implementing measures, the question now
arises as to whether or not Directive 2003/4/EC may be invoked directly against
emanations of the State now that the February 14, 2005 deadline has passed.
27.

It is interesting to note that the United Kingdom has implemented the new
directive on public access to environmental information.

See Environmental

Information Regulations 2004 (the EIR Regulations) (Statutory Instrument 2004

No. 3391) which came into force on the same date as the Freedom of Information
Act 2000 January 1, 2005. The text of these new regulations, together with a
Code of Practice, guidance notes and other very useful documentation, are
available at www.informationcommissioner.gov.uk.
28.

Returning to the EIA directive, it remains to be seen what approach Ireland will
take to the implementation of the recent amendments, in particular, the access to
justice requirements (noted in paras. 14-23 above). If Ireland fails to implement
the amendments to the EIA directive before the June 25, 2005 deadline, an issue
will arise as to whether or not the amended provisions may be invoked directly
against emanations of the State.

29.

In terms of enforcement of the EIA directive, it is interesting to note that the

Commission receives the highest number of environmental complaints per capita
from Ireland.

30.

It is difficult to identify the various factors that lie behind this state of affairs. The
high number of environmental complaints is, in all probability, a modern
manifestation of the strong tradition of public participation in planning and
environmental decision-making in this jurisdiction. It also serves to demonstrate
a keen interest and awareness in environmental issues and environmental law.

That said, it would appear that dissatisfaction with responses received from
competent authorities, together with the costs, delay and unpredictability
associated with judicial review proceedings appear to be the main catalysts behind
Irish complaints.
31.

In light of this state of affairs, it seems appropriate to conclude this overview with
a summary of the ruling delivered by the European Court of Justice in Case C210/02 Wells.1 This ruling is very relevant on the question of the remedies that
ought to be provided by the national courts where it is alleged that the
requirements of the EIA directive have not been met in a particular case.

32.

In a series of strong rulings, beginning with Kraaijeveld,2 the ECJ emphasised

that the national courts are under an obligation to take all the general or particular
measures necessary to ensure that the fundamental objectives of the EIA directive
are not undermined in practice. The phrase all the general or particular measures
necessary obviously covers a wide variety of reliefs and remedies. Note that the
Court did not require that a decision taken in breach of the EIA directive must
always be quashed (or set aside) by the national court. However, it is submitted
that given the plain obligation of the national courts to uphold Community law in their capacity as Community courts - it must be the case that the national
court's discretion not to quash such a decision must be very limited (this view
found support in the decision of the House of Lords in Berkeley [2002] 2 AC
603).

33.

In Wells, the ECJ was asked to consider the thorny question of horizontal or
inverse direct effect in the specific context of enforcement of the EIA directive
(see paras. 55-61 of the judgment). It is a basic principle of Community law that
directives are not (generally) enforceable against private parties. In other words,

Case C-210/02 Wells v. Secretary of State for Transport, Local Government and the
Regions, judgment of the European Court of Justice, January 7, 2004, nyr [2004] ECR I0000.
2
Case C-72/95 Aannemersbedrijf P.K. Kraaijeveld BV and Others v. Gedeputeerde Staten
van Zuid-Holland [1996] ECR I-5403.
1

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directives are enforceable against the State and emanations of the State (vertical
direct effect) but horizontal effect is not permitted. 3 The rationale behind this
principle is that the obligation to implement Community law falls squarely on the
State, and its emanations, and not on private individuals. Put simply, the core
issue in Wells was whether allowing an individual to invoke the EIA directive in
order to challenge a planning decision taken by the competent authority amounted
to horizontal effect because the result is that an innocent third party (the
developer) is deprived of the benefit of the planning permission?
34.

The ECJ ruled that mere adverse repercussions on the rights of third parties, even
if the repercussions are certain, do not justify preventing an individual from
invoking the provisions of a directive against the Member State concerned (para.
57).

In the Court's view there was no direct link between the competent

authority's obligation to ensure that an EIA was carried out in respect of the
project at issue and the performance of any other obligation falling on the
developer pursuant to the directive. So, according to the ECJ, it is open to an
individual to rely on the EIA directive against a planning authority even where
there may be so-called adverse repercussions or consequences for the rights of
innocent third party developers. This aspect of Wells is consistent with earlier
ECJ rulings such as Costanzo4 and is therefore not particularly surprising.
35.

In Wells, the ECJ was also asked to elaborate on the appropriate remedy where a
national court finds that the requirements of the EIA directive have not been met
in a particular case (see paras. 62-70 of the judgment). The Court began by
confirming the basic principle that pursuant to Article 10 EC the Member States
are required to nullify the unlawful consequences of a breach of Community law
(para. 64). This obligation is owed by every organ of State, including for matters
within their jurisdiction, the national courts.

The competent authorities are

required to take all the general or particular measures necessary in order to

Case 152/84 Marshall v. Southampton Health Authority [1986] ECR 723 and Case C91/92 Faccini Dori v. Recreb Srl [1994] ECR I-3325.
4
Case 103/88 Fratelli Costanzo v. Comune di Milano [1989] ECR 1839.
3

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ensure that the requirements of the EIA directive are observed (para. 65 and para.
68). The Court went on to expressly acknowledge that this obligation includes,
subject to the limits laid down by the principle of procedural autonomy of the
Member States, the revocation or suspension of a consent [e.g. a planning
permission] already granted, in order to carry out an [EIA] (para. 65). So, subject
to any limitations imposed by national procedural law (which must comply with
the principle of effectiveness) it is open to the national court to quash the
contested decision. The ECJ's approach appears to fall short of actually requiring
the national court to quash the contested decision in all cases where a breach of
the requirements of the directive has been established. However, the Court went
on to emphasise that:
The Member State is likewise required to make good any harm caused by
a failure to carry out an environmental impact assessment (at para. 66).
The Court does not elaborate on what it means by the phrase harm in this
context.
36.

The Court concluded by recalling that the detailed procedural rules applicable in
cases where a challenge is mounted to a decision on the basis of non-compliance
with the EIA directive are to be determined by national law, subject, of course, to
the now familiar principles of equivalence and effectiveness. It followed that:
it is for the national court to determine whether it is possible under domestic
law for a consent [planning permission] already granted to be revoked or
suspended in order to subject the project to an assessment of its environmental
effects, in accordance with the requirements of Directive 85/337, or alternatively,
if the individual so agrees, whether it is possible for the latter to claim
compensation for the harm suffered (at para. 70, my emphasis).
This passage merits further comment. First, considerable weight appears to be
assigned to the state of domestic law and whether or not domestic law provides

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that the contested development consent may be revoked. This approach does not
sit comfortably with the strong language deployed by the ECJ as regards the strict
obligation falling on the national courts to provide an effective remedy
(articulated in earlier paragraphs of the judgment). Secondly, the Court seems to
be suggesting here that if the applicant for judicial review agrees (and this appears
to be a firm pre-condition) then compensation is an acceptable alternative remedy
to the revocation or suspension of the contested permission.
37.

A number of important practical questions remain unanswered following Wells:

What is the harm suffered by an individual objector or NGO where a competent
authority fails to carry out an EIA in breach of the requirements of the directive?
In what circumstances, if any, does a national court enjoy a discretion not to quash
a development consent that is found to have been granted in breach of the
requirements of the EIA directive?
What is the harm suffered by the applicant for judicial review if the national
court decides not to quash a decision taken in breach of the EIA directive?
Is it possible to put a monetary value on the loss of the procedural right to
participate in the EIA process?

38.

Broader issues/questions for consideration:

The difficulties that have come to light in the application and implementation of
the EIA directive raise important questions about the impact of European
Community law (specifically framework environmental directives) within the
national legal order.
EIA has brought about an increased legalisation of environmental decisionmaking.
How does one attempt to balance good environmental decision-making with the
need for administrative efficiency?

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What are the aims and objectives of public participation within the context of the
structured decision-making procedure set down in the EIA directive?
What exactly is effective public participation within the meaning of the EIA
directive (as amended by Directive 2003/35/EC)? How does one attempt to
measure effectiveness in this context?
What is the role of judicial review in enforcing the requirements of the EIA
directive at national level?
To what extent are the national courts entitled to defer to the views taken by the
relevant expert competent authorities on EIA matters?
How does one attempt to disentangle complex mixed questions of law, fact and
degree in the EIA context?
39.

The way forward?

Role of specialist training
Detailed guidance notes incorporating case studies
Collaboration between EIA practitioners and lawyers
Consultative forums mutual learning environment

This paper is designed to provide a general overview for information purposes only.
The text of the relevant directives and national implementing measures should be
studied closely.
Any comments on the paper would be most welcome.
Correspondence to a.ryall@ucc.ie

April 10, 2005

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Selected references
EC Commission, Report from the Commission to the European Parliament and the
Council on the Application and Effectiveness of the EIA Directive (Directive 85/337/EEC
as amended by Directive 97/11/EC): How successful are the Member States in
implementing the EIA Directive? (June 2003). Full text available at
http://www.europa.eu.int/comm/environment/eia/report_en.pdf
UNECE Convention on Access to Information, Public Participation in Decision-Making
and Access to Justice in Environmental Matters (the rhus Convention), June 1998. Full
text available at http://www.unece.org/env/pp/documents/cep43e.pdf
Johannesburg Principles on the Role of Law and Sustainable Development adopted at the
Global Judges Symposium, Johannesburg, South Africa, August 18-20, 2002. Full text
reproduced in (2003) 15 Journal of Environmental Law 107.

Also available at

http://www.unep.org/dpdl/symposium/
Judges ad hoc meeting for the development of a plan of work as a follow-up to the global
judges symposium relating to capacity building of judges, prosecutors, and other legal
stakeholders, Nairobi, Kenya, January 30-31, 2003. Text available at
http://www.unep.org/dpdl/symposium/
EU Forum of Judges for the Environment/UE forum des juges pour lenvironnement.
Further details available at
http://www.courdecassation.fr/relations_internationales/
Lord Justice Carnwath, Judicial Protection of the Environment: At Home and Abroad
(2004) 16 Journal of Environmental Law 315
Environmental Law Foundation, Environmental Justice (March 2004). Full text available
at http://www.wwf.org.uk/filelibrary/pdf/envirojustice.pdf

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