Kingsland Conference II:
The Strategic Environmental Assessment Directive: A Plan for Success?
London, 14 February 2014
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Strategic Environmental Assessment: the Republic of Ireland Experience
ÁineRyall
Faculty of Law, University College Cork
Paper Overview
A legislative framework governing Strategic Environmental Assessment (SEA) has been in place in Ireland since July 2004. Ten years on, a critical analysis of experience in practice indicates a range of shortcomings in implementation and weak provision for oversight and enforcement. In many ways, the SEA story to date confirms wider, deeply rooted problems with environmental governance in Ireland including: fragmented structures and processes; lack of political will to integrate environmental considerations at all levels of decision-making; and (still) limited access to justice to enforce environmental rights and obligations in an affordable and timely manner. It is well-known that Ireland has long struggled to deliver effective implementation and enforcement of European Union (EU) environmental law at local level. The SEA experience provides an interesting case study of the challenges that must be tackled in order to integrate EU obligations into the national system and to strengthen local enforcement mechanisms.
Deficiencies in the SEA directive, in particular the restrictive definition of what constitutes a ‘plan’ and a ‘programme’, and the general manner in which many obligations are articulated, compromise the directive’s effectiveness as a regulatory tool. Moreover, the public is more inclined to engage actively in decision-making processes at ‘project’ level, when specific development proposals are on the horizon. It is clear that there is limited awareness of SEA among the public and that the Birds and Habitats directives and,of course, the Environmental Impact Assessment (EIA) directive are invoked far more frequently in practice. When compared with the SEA directive, these directives have a sharper edge in terms of their impact and enforceability.
It is not particularly surprising, therefore, to find that SEA related matters have only been considered in three High Court decisions to date. Two of these decisions turned on the definition of ‘plans and programmes’, while the third concerned the SEA decision-making process, in particular the duty to give reasons for adopting a plan in a particular form. A fourth case, challenging the legality of the National Renewable Energy Action Plan (NREAP) is currently pending before the High Court.
A review of the Environmental Protection Agency (EPA) published in May 2011 raised concerns inter aliaabout shortcomings in SEA implementation.[1] The Review Group recommended that consideration should be given to assigning a wider statutory role to the EPA with regard to SEA in order to strengthen practical implementation in a more uniform way.
In 2012, the EPA published the results of a review of the effectiveness of SEA in Ireland. Overall, the SEA Review concluded, optimistically,that:
SEA is fulfilling its role and is providing a vital tool for environmental protection in Ireland. SEA ensures that environmental considerations are taken into account in policy development and implementation, and is raising the profile of environmental issues in decision-making at plan level among those sectors applying SEA.[2]
However, it also identified a number of significant problems with SEA implementation. The key findings included: failure to screen some sectoral plans systematically; failure to document adequately scoping responses and how those responses are addressed; lack of a central database of plans with the result that it is difficult to identify what other plans exist; significant base line data gaps that need to be addressed at national level; inadequate consideration of alternatives; inadequate treatment of certain categories of environmental effects and the interrelationship between effects; mitigation measures not always taken into account in the plan or documented poorly; limited public involvement in SEA; Environmental Reports do not always focus on key issues; environmental effects of amendments to plans are generally poorly considered; some SEA Statements are either not produced at all or are of poor quality; SEA-related monitoring of the environmental effects of plans is seldom undertaken; and SEA and Appropriate Assessment could be integrated more effectively.
The SEA Review made a series of recommendations to improve implementation, with particular emphasis on strengthening governance, providing detailed guidance on various aspects of SEA, ensuring authorities have adequate resources to fulfil their obligations and improving training and awareness. Following the publication of the SEA Review in 2012, a National SEA (Environmental Authority) Technical Forum was established. An SEA Review Action Plan 2012-2016 was prepared to deliver the recommendations made in the Review and to improve the effectiveness of SEA.
Notwithstanding these reviews and the various recommendations presented, SEA remains relatively underdeveloped in Ireland. If SEA obligations are to be taken seriously, then robust governance and oversight mechanisms must be put in place. Unless there are tangible consequences where public authorities fail to fulfil legal obligations, it is highly unlikely that SEA will ever be integrated successfully into plan-making processes. The SEA Review suggested that ‘an independent body’ could review SEAs, decide whether or not they are acceptable and examine whether significant effects are being identified and mitigated. There is merit in this proposal, but the lack of detail is disappointing.
The problem in practice is that there is a strong tendency among certain plan-makers to regard SEA as a potentially expensive and time-consuming constraint on development. Moreover, the distinction between EIA and SEA is not always appreciated fully. As a result, SEA is treated by some plan-makers as little more than a ‘box-ticking’ exercise. At a time when public authorities’ resources are stretched to the limit, it is difficult for environmental concerns to gain any real traction. Political leadership at the highest level is needed to drive SEA implementation.
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[1]Environmental Protection Agency Review Group, A Review of the Environmental Protection Agency (May 2011) pp 44-45.
[2]Environmental Protection Agency, Review of Effectiveness of SEA in Ireland: Key Findings and Recommendations (2012) p 62.