Lower thresholds for the mandatory requirement for Environmental Impact Assessments (EIA) seem likely following a recent decision by the European Commission to take Ireland back to the European Court of Justice for failing to implement an earlier ruling concerning developments that may harm the natural and man-made heritage of the countryside.
The European Directive 85/337/EEC on the assessment of the effects of certain projects on the environment requires Member States to establish systems for deciding whether individual projects need to undergo an environmental impact assessment. The aim is to ensure that projects which are likely to have a significant effect on the environment are assessed in advance so that people are aware of what those effects are likely to be. The decision on when a project needs to undergo an environmental impact assessment can be made based on thresholds, case-by-case analysis or a combination, or both. Whichever system they choose, Member States must take account of the specific selection criteria described in the Directive. These include sensitive locations such as sites protected under European nature legislation or landscapes of archaeological significance.
A European Court of Justice (ECJ) ruling against Ireland in November 2008 found that the thresholds for undertaking an environmental impact assessment for certain types of projects, including the restructuring of rural landholdings and water management projects for irrigation or land drainage, were too high. They did not take enough account of sensitive countryside features. This led to loss of wetlands and other habitats and the destruction of archaeological remains without any environmental impact assessments ever being required.
The European Court of Justice has ruled that Member States cannot select on the basis of project size alone – small projects can have significant impacts on important nature sites. Irish legislation uses very high thresholds – up to 100 hectares – to select projects for assessment.
Two years after the judgment, Ireland has still not adopted legislation to address the issue. The EU Environment Commissioner is now referring the case back to Court and asking it to impose a lump-sum fine of more than €4000 per day for the period between the first Court ruling and the second Court ruling and a daily penalty payment of more than €33,000 per day for each day after the second Court ruling until the infringement ends.
The Irish Government’s environment and agriculture departments are developing a further response to the judgment and plan to consult with the commission. It is hoped that the implementation of the directive’s requirements before the European Court of Justice rules in the new case would remove the commission’s ground for complaint.
The Irish Government has said it had proposed “fundamental” reforms to reduce mandatory thresholds cited in the ruling by up to 95 per cent. Above such thresholds a planning application and case-by-case screening for environmental impact assessment will be required.
“The commission has taken the view that these proposals do not adequately address the judgment,” the Government said.