The Levelling Up and Regeneration Bill will see the replacement of existing EU-generated Environmental Impact Assessments (EIAs) and Strategic Environmental Assessments with new government-created Environmental Outcomes Reports.
The Bill is intended to build upon the Environment Act 2021 by improving ‘the process used to assess the potential environmental effects of relevant plans and major projects, through a requirement to prepare ‘Environmental Outcome Reports’ (EOR’s). Importantly, the Bill also creates a duty on the Secretary of State to ensure that the new system of environmental assessment does not reduce the overall level of environmental protection.
So, what are Environmental Outcomes Reports and what is the idea behind their introduction?
EORs represent a switch to an outcomes-based approach allowing the government to set ‘clear and tangible environmental outcomes which a plan or project is assessed against.’ These outcomes will be subject to consultation and parliamentary scrutiny prior to adoption and will also need to have regard to the Government’s environmental improvement plan (currently its 25-Year Environment Plan).
The idea is that EORs will be a much simpler, less bureaucratic system whereby environmental effects are measured against (soon to be agreed) environmental outcomes.
The Bill allows the Secretary of State to make new regulations requiring the preparation of EORs in respect of ‘relevant plans’ and ‘relevant consents’.
The EOR must:
– demonstrate how the plan or consent would effect the delivery of specified environmental outcomes as defined in regulations.
– assess any steps proposed to avoid, mitigate, remedy or compensate (the mitigation hierarchy) effects relating to the delivery of a specified environmental outcome.
– consider reasonable alternatives to the consent or plan.
– include an assessment of how matters raised through assessment are monitored or secured.
In terms of decision making, the Bill allows the Secretary of State to set the extent to which EORs are taken into account. The Bill’s Explanatory Note states that:
‘While Environmental Outcomes Reports must always be taken into account when prepared, the Secretary of State would have the power to make regulations that increased the weight afforded to an Environmental Outcomes Report. This would, for example, allow the Secretary of State to make regulations specifying that a decision-maker should, in certain circumstances, give increased weight to the findings of an Environmental Outcomes Report when considering whether to grant a consent’.
Regulations are to be drawn up setting out which ‘relevant consents’ will require EORs (‘Category 1’ consents will always require an EOR, whereas ‘Category 2’ consents will only be required to produce an EOR where it meets certain criteria to be set out in the new regulations).
The Government’s objective with the introduction of this new system is to ‘turn passive assessment into a more active tool to support environmental regeneration’. Effective monitoring and enforcement is key to this and, as such, the Bill allows for regulations to be made to enable action to be taken where monitoring shows that the expect delivery of an outcome is not being met.
At present, detail relating to how EORs will operate in practice is subject to future consultation and secondary legislation. However, the principle of replacing the EIA and SEA system with the new ‘outcomes-based’ system certainly represents a significant change, which will require careful drafting and implementation.