Restructuring of the Environmental Impact Process (EIA) AFTER Brexit for Incompleteness

1.1. Introduction:

The concept for a development within a particular set of surroundings requires careful investigation and analysis, and the general strategy of policy making, and the follow-up administrative process requires impact analysis¹. Everything we see and understand in those surroundings is the environment into which the development and its process must be aligned, to ensure the minimum disturbance to the virgin state. The approach towards that policy is through an ‘impact assessment’ which requires careful thought, and its significance has been widely recognised by lawyers, applied biologists and engineers².

‘Environmental Impact analysis’ (EIA) is an approach to policy development that incorporates analytical techniques, and its main purpose is to protect³ the public and the environment from the consequences of mankind’s actions causing damage to, and an imbalance of, the environmental surroundings.

The first documented legislation for ‘environmental impact analyses was introduced by the United States of America ‘National Environmental Policy Act’ (NEPA) 1969 and came into force on 1^st January 1970. It was certified through an ‘environmental impact statement’ (EIS). Errors were made in learning how to implement the EIA requirement, resulting in amending the ‘environmental impact assessment’ EIA-EIS provisions through executive order 1991 on 24 May 1977, giving the regulations by the ‘Council of Environmental Quality’ (CEQ) (guidelines covering research / surveys / monitoring / public participation) the effectiveness of administrative law.⁴ It remains today incomplete, as an evolving process.⁵

A structure for European regulations was formulated in 1985, through their EIA Directive (85/337/EEC), where disparities⁶ between the laws in force in the various member states necessitated linkage to Article 100 of the ‘Treaty of the European Union’, to approximate national laws about assessments of environmental impacts for public / private projects. To ensure this regulatory tool remains “fit for purpose”, several amendments were necessary in 1997 / 2003 / 2009, with codification in 2011, and the last amendment in 2014, as (2014/52/EU).

As a member state the United Kingdom (UK) adopted the ‘Town and Country Planning Regulations’ format, to enable the effective transposition of the EEC EIA Directive into English Law, which was initiated in 1988 as the ‘Town and Country Planning (Environmental Impact Assessment) Regulations’ 1988 (EIAR 1988). They were duly amended in 1999 / 2011 / 2017 as (EIAR)2017, and a further minor amendment⁷ in 2018 to allow for changes to thresholds for industrial estate development projects. The ‘incompleteness’ and ‘ineffectiveness’ of this structured legislation requires a comprehensive review.

The withdrawal of the UK from the EU took place at 11-00pm (GMT) on 31^st January 2020, central European time (CET), when the UK ceased to be a member state of the EU, and Britain’s exit day followed 11 months later 1^st January 2021, at the end of the transition period, when a new Island sovereign state was formed adjacent to the EU’s 27 member states Block.

1.2. Brexit legislation, and an opportunity for a ‘National Environmental Structure Plan Framework Model’ towards future UK Environmental Legislation

The ‘Great Repeal Bill’⁸ to repeal the European Communities Act 1972⁹ (ECA1972), and transpose EU Law into UK Law, was announced by the United Kingdom (UK) in October 2016, following a Referendum on 23^rd June 2016, when the British electorate voted to leave the EU (52% / 48%). The main reasons were identified as Immigration, Independence from the ECJ in Brussels, and opportunities for Free Trade. On 29^th June 2017, Prime Minister, Theresa May, triggered Article 50¹⁰ of the Treaty of the European Community¹¹ (TEU), to start the 2-year period of negotiations for a deal for exit from the European Union, and on 18^th June 2018 the European Union (Withdrawal) Act 2018¹² came into force, after nearly a year of deliberations.

This set-in motion structure plans for new policy, including the UK Government’s ‘25 Year Environmental Plan’¹³ Paper on 18^th January 2018. The UK left the EU on 31^st January 2020 and entered a 1-year transition period when nothing changed, and the rules governing the new relationship between the EU and UK took effect on 1^st January 2021. A policy statement for the Environment Bill 2020 was made on 30^th January 2020, with the Environment Act 2021¹⁴ coming into force on 17^th November 2021.

This Environment Bill 2020 set out a new domestic framework for environmental governance, aimed at maximising UK’s opportunities, created by leaving the EU, and to deliver the government’s commitment, envisaged in the 25-year Environmental Plan. The new system to embed environmental principles¹⁵ in future policy making is to help to ensure the protection and improvement of the environment and includes for a UK Environmental Protection policy regarding future environmental legislation, with Ministers to be required to make a statement to Parliament for setting out the impact of new primary legislation on existing levels of environmental protection. This to include reviews of significant developments in the environmental protection legislation of other countries and prepare linked reports to parliament every 2 years. Statutory Environmental Improvement Plans and a new framework for defining long term legally binding targets to then follow. The Bill set out new legally binding targets in four priority areas of the natural environment, being: air quality / waste and resource efficiency / water / nature. The Environmental Improvement Plans and legally binding targets are to be reviewed every 5 years¹⁶.

The Environmental Bill proposed a new public body as the independent UK watchdog, called the ‘Office for Environmental Protection’ (OEP)¹⁷. Failures by public authorities to implement environmental law were no longer to be considered through European processes and instead OEP was to engage with public authorities to reach a solution. Legal proceedings will be taken only in urgent cases, or as a last resort¹⁸.

The Environment Act 2021 embeds in law the policy statement on five important environmental principles¹⁹: environmental protection to be integrated into making of policies / principle of preventative action / precautionary principle / principle that environmental damage is rectified at source / polluters pay principle. Chapter 2 covers the ‘Office of Environmental Protection’, which covers scrutiny, advice and enforcement functions, covering monitoring²⁰ and reporting procedures on environmental improvement plans and targets.

This is now the opportunity for a new approach towards major environmental strategies for UK under new supreme legislative controls, and to tackle important ‘climate change’ policies, urgently required, and to address new ideas for ‘global renewable energy’, with the UK’s location at the northern end of the Atlantic Gulf Stream offering major opportunities.

2. A summary Review of various operating international EIA Processes

2.1 ‘Impact Analysis’ was recognised as a realistic tool towards implementing International Law Principles in the first Earth Summit in Stockholm 1972²¹. It recognised the importance for proper planning to be applied for integrating development with environmental needs, with the aim to avoid adverse effects on the environment and obtain important social and economic benefits for anthropogenic projects. In the second Earth Summit in Rio²², Principle 17 sought for a mandatory EIA to be included in national law for any activities that are likely to have a significant adverse effect on the environmental surroundings, while Agenda 21²³, called on all countries to assess environmental surroundings for all development projects through EIA prior to deciding.

The ‘Protocol on Environmental Protection to the Antarctic Treaty’ ²⁴ came into force in 1998 and designates the Antarctic as a natural reserve, devoted purely for peace and science. Article 8²⁵ embraces the essential aspect of the management of ‘Impact Analysis’ of the natural environment. Annex 1 identifies the logical steps towards the ‘Environmental Impact Assessment’ process as: preliminary stage / Initial environmental evaluation / followed, if necessary, by a comprehensive evaluation, with the decision to be based upon the comprehensive evaluation of that environment. Next are the structured ‘monitoring-control’ procedures for an essential element towards sustainability, together with complete registration and circulation of all information. The protocol requires ‘Cases of all Emergency’ to be identified and actioned to the acceptable environmental standard requirement, and to result in satisfactory environmental adjustments to record a required amendment / modification. This structure could be adopted as the basis for formulation of an approach towards an environmental structure plan for a suite of handbooks, and to embrace the global monitoring / control procedures, towards environmental protection.

The Espoo Convention in 2003²⁶ recognised the need for forward planning to set out defined strategies for consideration of co-ordinated programmes and structured linkage plans, to include transboundary effects in strategic environmental impact analysis, while the ‘World Charter for Nature’ ²⁷ scrutinised what might have an impact on nature shall be controlled, and the best technologies made available to minimize significant risks to nature, including EIA techniques²⁸

Also, for the Marine Environment, UNCLOS considered that countries should have reasonable grounds for considering the planned activities under their jurisdiction or control that may cause substantial pollution of, or significant and harmful changes to, the marine environment, and they shall be able to assess the potential effects of such activities on the marine environment, including communicating reports of the results of assessments and reviews, to competent authorities²⁹. In New Zealand v France [1974] ICJ Rep 457 the International Court of Justice was required to make judgement on France’s proposals for carrying out atmospheric tests in the South Pacific, though France withdrew their proposals and judgement was not necessary. Further, in 1986 the Noumea Convention required each country to assess and review the potential effects of any likely projects which might affect the marine environment, to allow appropriate measures to be taken to prevent substantial pollution and significant harm within their domain³⁰. In the MOX Plant Case (Ireland v UK) 2002, Ireland’s concerns related to the failure of the 1993 ‘Environmental Impact Statement’ regarding assessment of the ‘impacts’ of radioactive discharges into the Irish Sea. The impacts and potential adverse effects were missing from the statement. Ireland withdrew its claim before the tribunal³¹, pending judgement of the ICJ, who legally dismissed the case and terminated proceedings in June 2008.

While all the major international EIA structured Instruments struggle to achieve a comfortable approach for the screening³² process for anthropogenic projects, the UN’s Biodiversity Convention³³ approaches ways to minimize activities likely to have any significant adverse impact towards nature’s conservation, and sustainable use of biological diversity.³⁴ It requires appropriate procedures for EIA to any proposed project, with a view to avoiding or minimising significant adverse effects and maximising public participation in that process.³⁵ Importantly, it identifies the monitoring³⁶ process for sustainability and conservation through the life of biological diversity, which is an integral part towards ‘substantial completion’ of an effective EIA process towards ‘satisfactory completion’ for acceptable performance.

Many leading International Organizations, such as World Bank³⁷ (WB), have developed their own assessment / review environmental procedures for proposed projects they wish to fund, and require environmental assessments, for their Bank financing, to ensure they are environmentally sound and sustainable for the full life period, which is an adaptation of the presently accepted EIA structure. This type of ‘International Financial Institution’ (IFI) EA structure is to ensure Insurance of their Funding to the Borrower, who is responsible for carrying out the ‘EA’. This must embrace a range of types of Impact analysis, including environmental audit, degree of hazard and risk, as well as an environmental structure plan embracing all the surroundings and of course taking into account various ‘cultural types.

World Bank Environmental Systems are described in a report study by ‘ECA and ESSDD(WB)³⁸’ titled ‘Environmental Impact Assessment Systems in Europe and Central Asia Countries', to examine EIA systems of 28 countries in Europe and Central Asia (ECA) Region. Some main findings were the lack of public consultation and participation, and lack of the environmental management plan mechanism, to ensure that necessary monitoring and mitigation measures, for avoiding or controlling adverse environmental impacts, are implemented³⁹.

2.2 Other International EIA Systems: By the mid-1970s other countries such as Canada, India, France, Australia and New Zealand developed their own EIA processes⁴⁰, and the various structured approaches towards environmental law controls, from differing ethics and culture backgrounds, require careful examination, comparison and review for ‘impact analysis’ process of different development styles.

In Canada the EIA process, introduced in 1973 by the Federal ‘Environmental Assessment and Review Process’ (EARP) was replaced in law, to strengthen EIA, with the Canadian Environmental Assessment Act⁴¹(CEAA). Changes in Government in 2012 resulted in a modified CEAA 2012, and in 2019 it was repealed by the ‘Impact Assessment Act’ (IAA) 2019⁴², with the approach to include additional steps to assess the environmental, social, health, economic, and cultural impacts of major projects, and importantly, the effects those projects had on the indigenous population and their cultural well-being.⁴³

The environmental legislation of Canada, from its outset, evolved through distinct changes of environmental policy. The EIA process structure remained consistent with steps adopted by all the main international systems⁴⁴, particularly including monitoring, and as such is incomplete. The adjustments to environmental targets, based on international strategies, were considered weaker⁴⁵ for the 2012 / 2019 era, and Canadians who recognised the climate crisis⁴⁶ were instrumental in lobbying the government to restore and improve the legislation to the IAA 2019, which covers four types of Impact Assessment used in Canada: Health Impact Assessment / Environmental Impact Assessment / Strategic Impact Assessment / Risk Assessment.

The initial approach of the Canadian Environmental Act (CEAA) forbids responsible authorities from exercising any power, or performing any duty, in relation to the project until the EIA process has been completed⁴⁷. Like the USA it has federal EIA legislation that applies only to federal projects and approvals,⁴⁸ and applies the transboundary EIA provisions of CEAA in relation to non-parties to the Espoo Convention,⁴⁹ as well as parties to that convention without differentiation⁵⁰, and EIAs are transnational legal processes⁵¹. The harm principle in International Environmental Law was used in the Trail Smelter Arbitration (United States and Canada, 16 April 1938, 3 RIAA 1907(1941), between Canada and the US, arising from air pollution from a smelter located in Canada, regarding state responsibility for transboundary harm.

In India the Union Ministry of Environment and Forests (MoEF)⁵², under the Environmental (Protection) Act 1986⁵³, promulgated an EIA notification making Environmental Clearance (EC) mandatory for expansion or modernisation of any activity or for setting up new projects listed in Schedule 1 of the notification⁵⁴. The ‘Bhopal Gas Tragedy’,1984⁵⁵, led to many thousands of deaths and triggered India’s EPA 1986 legislation⁵⁶. Since then, there have been 12 amendments made in the ‘EIA’⁵⁷ notification of 1994, starting when MoEF notified EIA legislation in September 2006. That notification made it mandatory for various projects such as mining, thermal power plants, river valley, infrastructure (road, highway, ports, harbours and airports) and industries including very small electroplating, or foundry units, to get ‘environment clearance’. Unlike the EIA Notification of 1994, this legislation has put the onus of clearing projects on the state government, depending on size/capacity of the project.

Certain activities permissible under the Coastal Regulation Zone Act 1991, also required clearance. International Financial Institutions (IFI) operating in India (like World Bank / Asian Development Bank (ADB)) have a different set of requirements for giving ‘environmental clearance’ to projects that are funded by them. Most EIA processes have a common structure, and the application of the main stages is a basic standard of good practice. In India, the ‘environment impact assessment’ consists of eight steps, with each equally important in determining the overall performance of the project: Screening / Scoping / Impact Analysis / Mitigation / Reporting / Review of EIA / Decision-making / Post Monitoring. (This last term requires definition, though could suggest sustainability which leads towards ‘substantial completion’). Also recommended are other Forms of Impact Assessment: Health Impact Assessment (HIA), Social Impact Assessment (SIA) .... so that they are taken into consideration along with the environmental assessment.

Strategic Environment Assessment (SEA) refers to systematic analysis of the environmental effects of development policies, plans, programmes and other proposed strategic actions. In India this process is beyond the project level and covers for when major alternatives are still open. ‘SEA’ is a proactive approach to integrating environmental considerations into the higher levels of decision-making. India says “EIA has certain shortcomings as a tool for minimising environmental effects of development proposals. It takes place relatively late at the downstream end of the decision-making process, after major alternatives and directions have been chosen.”⁵⁸ On 23 March 2020, the Indian Ministry of Environment, Forest, and Climate Change issued a ‘Draft Environmental Impact Assessment Notification’, 2020 (‘Draft EIA Notification’), which was intended to replace the existing EIA Notification, 2006. The Supreme Court of India dismissed the appeal, filed by the Ministry, against the order of the Delhi High Court⁵⁹.

Evaluation of the Draft EIA Notification argued that “the Draft EIA Notification dilutes the very premise of EIA and emboldens violation of the core principles that are part of national and international environmental jurisprudence” in India.

The major dilutions include removing several activities from the purview of public consultation and EIA. These projects may require, for example, deforestation, or the dredging of major rivers, which do not need prior clearance for such activities.

3. Incompleteness of the EIA process

3.1 The EIA process inherited after Brexit is based on a structure initiated by United States⁶⁰ statute to reform policy-making procedures and adapted⁶¹ to suit the European culture comprising a multiple number of mainly landlocked states. It concentrates on anthropogenic principles for developing a project in a transboundary context, internationally following the UN’s international environmental principles to prevent harm to the worldwide environmental surroundings. The path inherited for the EIA process starts at its conception and is analysed in defined steps through to the completion of the decision process for the anthropogenic project, which remains incomplete for the life of the designed project when built, and the chosen environmental surroundings.

The incompleteness of the UK inherited EIA process requires several necessary changes to ensure an effective and flexible EIA structure is achievable towards ‘substantial completeness’, which must cover the project period up to end of project life and return to acceptable environmental conditions. It also must embrace ‘climate change’ and ‘renewable energy’ possibilities around the UK coastlines, together with the real difficulties encountered from river and coastal waters pollution, and shortcomings to UK Environmental Law.

UK ‘Environmental Law’ is a gradual evolving process lacking a structure plan and inherited from international sources, loosely based on Environmental Principles established at global conferences⁶² over the last 50 years. The present structure is fragmented, based on uncertain definitions⁶³ and sets of planning regulations, which require many changes and amendments to enable it to remain ‘fit for purpose’.

The ‘splendid isolation’ of a sovereign Island country status, to which the United Kingdom has now returned, possesses a different set of environmental surroundings to the landlocked EU block of States, including mapping of UK coastal areas which is missing from the EU Mapping and Assessment of Ecosystems and their Services⁶⁴. New renewable energy opportunities are already under consideration, and now require important and necessary legislature changes under the UK Supreme Court, following the repeal from the EU’s European Court of Justice.

This dissertation paper will cover just the anthropogenic project life inherited at Brexit, but it is necessary to outline a skeletal basic structure for the proposed impact analysis procedures necessary for the UK today and describe the requirements for important main topics discussed in this paper.

3.2. EIA process continuation to end of project life/return to acceptable environmental conditions

Initial preparatory works should embrace a ‘project management plan’ and ‘programme of works for the construction period, followed by a comprehensive ‘Commissioning’ to allow for commencement of ‘commercial operation’. This requires a comprehensive ‘project supervision structure plan’ covering all the various phases of the construction period, to mitigate possible ‘slippage’ and delays to works activities, culminating in a ‘defects liability period’, to record and ensure satisfactory performance. The Commissioning of the completed construction works is essential to confirm the effective reliability of the works / plant, together with accurate records endorsed through a comprehensive ‘Tests on Completion’ (‘ToC’)⁶⁵ structure plan, which is important as a reference throughout the ‘operation period’.

The life of the project to be operated needs reference to a comprehensive set of ‘Operation and Maintenance’ Manuals (O&M), and effective ’monitoring/control’ procedures which it is important to maintain throughout the ‘operational life’. Annual ‘Operation Inspection Reports’ furnishing all essential records (events and data) need to be prepared and held as a project record. They are essential management services tools which should be utilised for any identified malfunctions. This allows adjustments and corrections to the ongoing operational facilities, as and when it is desirably necessary, to provide a continued satisfactory balance to the project with the environmental surroundings.

The ‘decommissioning’ structured programme for certain projects is essential to ensure safe and proper environmental conditions are achieved and recorded. This will allow a satisfactory return to safe and balanced environmental surroundings. It needs to embrace any demolition / taking down of all defined materials (incl. harmful waste) for safe removal, recycling whenever possible, and return to acceptable environmental surroundings. Harmful, hazardous and radio-active wastes require separate planned proposals following identification, for separation, transportation and placement to specially prepared long term modular storage sites.

3.2.1). Air Pollution:

UK Air pollution legislation has evolved over the last 30 years with Part 1 of the EPA 1990 seeking prevention of Air pollution through permit-based control, leading to the Environmental Permitting Regulations for England and Wales, and progressive amendments. This was followed by the Clean Air Act 1993⁶⁶ to address vehicle emissions. The Environment Act 1995 created the establishment and operation for ‘GHG’ emissions trading scheme, embracing the importance of transboundary effects around the globe. After Brexit the Environment Act 2021⁶⁷ recalled the importance of Air Quality and smoke control regulations in England and Wales.

Pollutants causing concern are carbon monoxide, nitrogen oxide and ozone⁶⁸. Fine particles in vehicle emissions, each less than 10 micrometres across, ‘PM10’, cause respiration problems by entry of chemicals into the lungs. Ozone at ground or at tropospheric levels is a highly corrosive pollution, based on reaction between sunlight / NO₂ / volatile organic compounds (VOCs) causing summer problems in cities, and ‘photochemical smog’ comprising micro particles of VOCs/ NOx.

The Secretary of State’s Guidance Note 6/9 (04)⁶⁹ issued conditions for emissions into the air and guidance on Best Available Techniques (BAT) not entailing excessive cost.

Defra’s ‘Air Pollution in the UK 2019’⁷⁰ was issued in September 2020, as the UK was required to report air quality data on an annual basis under various⁷¹ EU Directives. The Report provides background information on pollutants covered by various EU Directives and UK’s Air Quality Strategy: covering the sources / effects / monitoring networks / UKs modelling methodology. The pollutants covered in the report are SO₂ / NO/ NO₂ /PM10 & PM2.5 particles/ Benzene / 1,3-Butadiene CO / Metals/ PAH/ O_3.

Sulphur dioxide is another major pollutant produced by chemical plants and not effectively controlled under earlier legislation of the 1950s. The method of control was to discharge at height over the surroundings, which dispersed over a wide area and fell as acid rain, harming freshwater and terrestrial ecosystems in UK, and beyond into Europe, indicating incompleteness.

The earth’s wind pattern forces⁷² change, North / South, at 30^o and 60^o latitudes along ‘fronts’, while rotational deflections travel great distances around East / West hemispheres in what is called the ‘Coriolis’⁷³ effect over the surface, spreading man’s pollution. Careful global organization from all cultures is now urgently required.

The fragmented progress of UK Air Pollution legislation has lacked structure and remains incomplete, also lacking any unified co-ordinated directive from the global stage. It is now essential to restructure an intelligent approach towards setting out a UK structured framework for ‘air pollution’ controls, based upon the ‘common but differential responsibility’.⁷⁴

3.2.2). Climate Change

Over a decade ago, the UK put into force the Climate Change Act (CCA) 2008⁷⁵, setting targets for a reduction of Greenhouse Gases (GHG) by 2050, to provide for a system of carbon budgeting⁷⁶ for the purpose of limiting GHG from the atmosphere. The Act established ‘The Committee on Climate Change’⁷⁷(CCC) to assist in ‘carbon management’, to monitor, advise and report with ‘carbon budgets’ and on ‘monitoring / control’ procedures towards the ‘2050 target’⁷⁸ for reduction of GHG.

Under general ancillary powers⁷⁹ the committee may exercise its duties to take action to ensure it carries out its functions under the guidance of National Authorities and the Secretary of State. The British Standards Institute (BSI) fast tracked their Specification for ‘Carbon management in Infrastructure’⁸⁰ in May 2016, to enable accuracy, transparency, consistency, relevance and completeness of carbon management and GHG emissions quantification. The scope of PAS 2080 is about Carbon management as part of wider climate change mitigation; it is not about wider environmental or sustainability issues⁸¹.

Under the specification the management of ‘whole life carbon’ in UK, infrastructure is defined as embracing the ‘transport’, ‘energy’, ‘water’, ‘waste’’ and ‘communication’ sectors⁸², and the management services covers the assessment, removal and reduction of GHG emissions measured as ‘carbon dioxide equivalent’, which relates and covers for the 6 gases quoted in the Kyoto protocol⁸³.

The methodology control procedures for the ‘practitioner’ calculating Infrastructure GHG emissions, is covered in the specification,⁸⁴ which were responsible for over half of the UK’s GHG consumption in 2010 emissions, a total: 981 million tonnes Mt CO₂e⁸⁵ and a programmed emissions target of 178 Mt CO₂e in 2050. CO₂e is a unit for comparing the radiative forcing of a greenhouse gas to carbon dioxide⁸⁶ and is calculated using the mass of a given GHG, multiplied by its global warming potential. ‘GWP’ which is the factor describing the radiative forcing impact of one mass-based unit of a given greenhouse gas relative to an equivalent unit of CO₂ over a given period⁸⁷. In 2019 the Climate Change Committee (CCC) Report, ‘Net Zero - The UK’s contribution to stopping global warming’⁸⁸, led to the (CCC) committing the UK Government by law to reduce greenhouse gas emissions by at least 100% of 1990 levels by 2050, which relates to ‘net zero’.

The ‘Office of Environmental Protection’⁸⁹ (OEP) is responsible for Environmental governance, including environmental targets, environmental improvement plans, environmental monitoring, and importantly to embrace compliance with the five main environmental principles⁹⁰ recorded in the Environment Act 2021.

Following Brexit, and the one-year transition period, the ECJ responsibility as the supreme court in UK ceased. This is now the opportunity for the UK to set out a new structure plan framework for climate change, based on CCA 2008 and augmented to include relevant latest global ‘climate change’ targets, all as set out under the UNFCCC on climate change⁹¹. It is important to ensure comprehensive environmental analysis on climate change is included in a suite of EIA handbooks.

3.2.3). Renewable Energy:

After Brexit the UK government published its new strategy for renewable energy, “The British Energy Security Strategy”,⁹² which is aimed at a faster decarbonization with the approach towards earlier energy security and independence. This early strategy so soon after Brexit had been triggered because of Russia’s special operations in Ukraine, together with UK’s increasing reliance on foreign sources, and its principal target is to secure clean and affordable British energy for the long term. The energy renewables⁹³ targets included offshore & onshore wind power, solar and related technologies, Nuclear⁹⁴ and Hydrogen, though with coastal tidal power conspicuously omitted.

The European Commission issued the 2^nd Report on ‘Mapping and Assessment of Ecosystems and their Services⁹⁵ - Biodiversity Strategy to 2020’ in February 2014, which solely concentrates on mapping the land mass and was based on river basins for their UK state at that time.

Following Brexit, the UK has once again become an Island State, and located at the northern end of the Atlantic gulf stream, has massive potential for large renewable energy projects around the irregular shaped coastline and smaller Islands. While it remains premature to consider major marine opportunities for the Irish and North Seas at this time, the estuaries and jagged coastlines are already being discussed⁹⁶ and legislation should now be in place. These near future projects will also probably embrace the causation factor to erosion along the south and east coasts of England and the need to readdress methodologies for proper and correct adaptation of potential tidal energy.

3.2.4). Water Pollution

Present UK water pollution control legislation is fragmented, unclear and inefficient, and compounded by extremes relating to agriculture pollution effects and discharging of badly treated and untreated sewage into rivers and coastal areas. The Water Framework Directive⁹⁷ (WFD) regulatory controls, transposed in 2003⁹⁸ and updated in 2017⁹⁹, focuses target performance¹⁰⁰ for member states to undertake to achieve ‘good status’¹⁰¹, whereas regulatory controls based on specification standards to harness nutrient controls appears to be the preferred choice for ‘protecting the water, soil and air’¹⁰², covered in (DEFRA) ‘A Code of Good Agricultural Practice’ in 2009. In the case C-461/13 Bund fur Umwelt und Naturschutz Deutschland, Advocate General Jaaskinen said ‘The WFD is a complex and particularly elaborate measure which is unusually difficult to understand’¹⁰³. However, the EU WFD does cover all the main aspects relating to Water Pollution control, and it is the presentation and structure of the EU Framework that requires further thought towards a preferred approach for a restructured water framework for the UK after Brexit?

After Brexit there is an opportunity for UK policy and regulatory control to give greater emphasis to specification and process standards, followed by performance targets, through a clearer programme of measures¹⁰⁴ for ‘River Basin Management Plans’ (RBMP) for nutrient control defined standard levels. A comprehensive updated co-ordinated planned framework is required to embrace the ‘UK Implementation of the Nitrates Directive in England’.¹⁰⁵ This, with the follow up ‘Explanatory Memorandum’ of NPPR 2008¹⁰⁶ and ‘Consultation Guidance’¹⁰⁷, together with ‘several important Nitrate Pollution Regulations' (NPPR 2016¹⁰⁸, RPADPR 2018¹⁰⁹, FW (EU Exit) R 2019¹¹⁰). Following exit from the EU, an approach to reference these important pieces of legislation in a ‘reference Chart for environmental legislation for agricultural nutrient controls chart’ would be a useful tool, reference, Figure 1¹¹¹. This coordinated structure plan approach requires as a starting point a particular ‘environmental impact analysis tool mechanism for managing UK Water Pollution’ which would embrace a UK Common Agricultural Policy (CAPUK), good agricultural and environmental conditions for UK farms (GAECUK)¹¹² and to be a part of a suite of Impact Analysis reference books for adoption after Brexit, though this is beyond the scope of this paper.

3.2.5). Waste:

UK waste regulation has evolved through early domestic regulations (EPA 1990)¹¹³ relating to the management of solid waste. This covers ‘household, industrial and commercial’ waste, with waste defined as ‘controlled waste’¹¹⁴, for collection, handling, transportation and disposal or recovery, and as amended by (EA 1995)¹¹⁵, (CW(RCSV)R 1991)¹¹⁶, HWR 2005¹¹⁷ and (EP(E&W) R 2010)¹¹⁸. Whereas through the EU ‘Waste Framework Directive’¹¹⁹ the definition of waste is the term ‘discarded’¹²⁰ from substances, materials and articles, where the approach considers a ‘duty of care’ for handleability of waste. The confusion of the definition of waste and what is waste, required UK clarification through the Waste (England and Wales) 2011 Regulations,¹²¹ and following freedom from the EU States this important definition and waste handleability will require a completely fresh approach for a ‘national structure plan for waste management’.

The mix of various types of environmental assessments could be presented as a co-ordinated framework of linked EIA documents, presented in a suite of ‘environmental impact analysis’ books, including a Guidelines Handbook, for UK environmental policy for the present time, and adjusted to suit future environmental change, though this is outside the scope of this paper. (Figure 2)

3.3. Approach towards an effective structure for ‘EIA’ after Brexit

UK Environmental Law is an evolving and fragmented process lacking a structure plan and based on various international principles and global conferences, which for the last 50 years has evolved through the EU, with the European Court of Justice (ECJ) implementing EU Law, consisting of judges from all member states. The main purpose is to protect the environmental surroundings and is aimed at preventing harm or minimising any damage within permissible limits, through planning law,¹²² and management of the anthropogenic effects, resulting from the changing use of its land, using tools and mechanisms set up to analyse the impacts that could be caused. But the impact of planning control is, in many ways, inadequate¹²³,and indeed, incomplete as adequate environmental protection is failing the present process.

A new structured ‘Environmental Impact Analysis’ process structure needs to be developed to embrace the range of conditions and situations that are now applicable for a modern advanced UK Island State, following exit from the EU land block of member states. This new structure must embrace a range of impact analysis options related to both anthropogenic and non-anthropogenic cases (Figure 2), which will result in a creative suite of ‘Impact Analysis’ processes covering the range of options required for the UK. The structure of the ‘Impact Analysis’ process must be integrated into a modern and updated set of UK legislative environmental planning regulations that is suitable for use and fit for purpose after Brexit for an Island state, and with options to consider a special environmental court to provide guidance in the full judicial process.

The scope for any EIA must embrace the effects of the proposed project on the conservation of species or their habitats¹²⁴, as the EIA regime must assess and review such interlinked environmental effects. This effectively means that a complete EIA analysis appropriately covers several separate smaller EIA compilations and are termed ‘Appropriate Assessments’, to analyse the individual plans and programmes of those parts; this approach was adopted in the 1992 European Directive¹²⁵, relating to species habitats.

The methodology for the full analysis and evaluation of this environmental process needs to be a simple, compact, uncluttered and precise document, presented in clear linked parts leading to sound findings, which may be understood through any public participation process, and for the anthropogenic projects needs to embrace the social, health and economic parts.

The excellent structure of the ‘Protocol on Environmental Protection to the Antarctic Treaty’, particularly its approach to ‘EIA’, is covered in Annex1¹²⁶ and identifies the importance to limit the size and quantity of information for the EIA Document: to furnish preparatory collation of information, to conclude with an initial environmental evaluation, and in particular cases to be followed by a comprehensive impact analysis evaluation.

3.4. UK and International Cases embracing Project Reviews

It is first necessary to examine and reflect on initial performances of some international cases, upon where much of UK legislation is founded. In an important case Gabcikovo-Nagymaros Project (Hungary/Slovakia) ICJ Rep 7 (80), this involved a project to build a cross-border system of dams between Gabcikovo and Nagymaros on the Danube and the history is summed up by two press releases of the International Court of Justice (ICJ), on 3 September 1998 to confirm Slovakia requesting an additional judgement and later in 2017 “placed on record the discontinuance by the Slovak Republic of the procedure begun by means of its Request for an additional judgment”.¹²⁷

A history of political change in the region was a cause for the failure and incompleteness of the project, though analysis of the fragmented approach indicates a poor coordinated structure lacking in ‘management control’ and wrong decisions of various international bodies as real reasons for failure, as follows:

• Two different Treaties in 1977¹²⁸ and 1997¹²⁹ with different Parties and yet they remain using the same conceptual project but with a modified ‘Variant C’ project presentation.
• Should construction of part of a project be modified and allowed to proceed without contractual verification? Under FIDIC procedures, Contract Law’s structured approach is unlikely to permit such action.
• Did the ICJ take the correct approach¹³⁰ and could the Court have pronounced on the ‘principle of continuity’¹³¹ to allow automatic succession of the Treaty? Was it contractually correcting for the 1977 Treaty ever to have been in force¹³²? The ICJ was asked to determine the legal consequences arising from its consequences.¹³³

The ICJ referred to the concept of ‘sustainable development’, remarking the Parties should look afresh at the effects on the environment of the operation of the Gabcikovo power plant.¹³⁴ However, the ICJ was referring to the law as it applied in 1989 and in 1992 and it did recognise the concept of ‘ecological necessity’,¹³⁵ and the need to analyse environmental risks through a structured management process, particularly as even today such management services tools require an effective updating set of procedures.

In another case, Pulp Mills of the River Uruguay Case (Argentina v Uruguay) [2006] ICJ involved international treaties and the disagreement surrounding the Statute of the River Uruguay [1975]¹³⁶. This was signed under article 7 of the 1961 Treaty that establishes articles to the boundary between the two Countries on the river Uruguay. It concerned Uruguay’s 2 No. pulp mills on the river, both in proximity to the Argentine City of Gualaguaychu, named ‘Boricuas (MBC) mill’ and the other a few kilometres downstream called ‘Botnia mill’¹³⁷. Argentina considered Uruguay in breach of the 1975 Statute and referred to the ICJ in accordance with Article 60¹³⁸ for preventing pollution, and activating measures including: prior notification of action, preparation of an EIA, to cease to act in breach and suspend construction of the pulp mills. In July 2006 the International Court rejected on the grounds that there was insufficient evidence to show any real ‘harm to the river Uruguay’ had been caused, and construction on the MBC mill was subsequently abandoned in September 2006.

The Court did find that Uruguay had violated substantial obligations of the 1975 Statute concerning coordination with the river commission, and the requirement to protect and preserve the aquatic environment. However, the Court stated the obligations only held until the end of the negotiating period provided by the statute, and Uruguay was free to proceed¹³⁹ to construct and operate the mill, though noted that a precautionary approach¹⁴⁰ may be relevant in interpretation of the statute. These findings were criticised and supported by several Judges, though Judge Keith¹⁴¹ felt otherwise, which reflect a recognition that the judicial assessment of complex, technical and scientific matters that arise in many international environmental cases, could pose significant challenges¹⁴².

This was a classic case in ‘International Environmental Law’, as part of the judgement explicitly recognised¹⁴³ EIA as an important practice in International Law, when considering the intent to prevent pollution under Chapter X, article 41 a)¹⁴⁴; also, a further point discussed in the case was the question of the use of experts by ICJ. The Case particularly highlighted the importance of following exactly the procedural obligations furnished in Environmental Law Cases¹⁴⁵.

In a further International case, Lac Lanoux Arbitration (France v Spain) (1975) 24 ILR 101, the French Government proposed construction of a barrage to channel water through a Hydroelectric power plant, diverting 25% of flow of the River Carol and returning the same quantity of water to the river, prior to its use by farmers in Spain, and the ‘community of interests’¹⁴⁶ approach invoked by the PCIJ¹⁴⁷ in 1929 was reflected in the arbitral award.¹⁴⁸ The Arbitral tribunal held that proposed French work did not constitute an infringement of Spain’s rights under earlier treaties, although the tribunal did suggest that may not be so if Spain’s claim to infringements of rights had been stronger, by saying it pollutes the river waters of the Carol, or changes chemical composition in a way to cause harm.

The award considered whether riparian states have any obligation to notify and consult with others affected prior to engaging in activities which may harm the watercourse.

The tribunal held that France is entitled to exercise her rights, but she cannot ignore Spain’s interests. Spain is entitled to demand that her rights be respected, and interests taken into consideration. Although not in breach, the tribunal did state that ‘the rule that states may utilise hydraulic power of international watercourses only on condition of a prior agreement between interested states cannot be established as a custom, even less as a general principle of law’¹⁴⁹. The award heralded provisions now set forth in 1992 UNECE Convention and 1997 UN Watercourses Convention and reflects limited state of customary law in 1957.¹⁵⁰

In a European context an example to performance standard is the case Kraaijeveld BV v Zuid-Holland (1996) C-72/95 and remains a central case in the jurisprudence of EIA¹⁵¹. Kraaijeveld challenged zoning plans concerning the Merwede dyke on the basis that no EIA had been carried out. Netherlands took the view that EIA was not necessary as the proposed works fell below the relevant national thresholds¹⁵². ECJ made several findings based on the original EIA Directive¹⁵³ making it clear that while Article 4(2) confers to a national discretion to set thresholds, it is limited to its obligations¹⁵⁴ to ensure projects with significant effects are subject to EIA¹⁵⁵.

It is noted that Article 4(1), Annex I for major projects stipulates ‘National’ Projects under the classes¹⁵⁶ listed, such as Netherlands National Zuider Zee Project¹⁵⁷ 1^st phase to claim land and controlled waters from the North Sea, which was started in 1918, with completion of a 19-mile-long closing Dam in 1932. This national Project is being carried out by the Dutch Government according to a law introduced to the parliament by Lely¹⁵⁸, a former employee of the Zuiderzeeverereniging,¹⁵⁹ which reclaims wetlands and produces fertile rich soils.

The judgement was made in answer to 4 questions submitted by Netherlands’s state Council to ensure the Directive was complied with, although no individual has invoked it¹⁶⁰. Why was there no question relating to waterway access services to the Kraaijeveld's premises, as it was alleged the new plan would be ‘ruinous to the business’?¹⁶¹ The judgement also raised the various language versions to the Directive’s Annex II (10e), indicating that it fell into 2 categories concerning interpretation, and given that divergence, one must go to the purpose and general scheme of the Directive¹⁶², and further that the wording of the Directive indicates that ‘it has a wide scope and broad purpose’¹⁶³, and this indicates incompleteness.

The EIA Directive has been amended 3 times in 1997 bringing it into line with UN ECE Espoo Convention for EIA in a Transboundary Context, in 2003 to cover public participation in line with the Aarhus convention and in 2009 to amend the Annexes 1 and II, before codification in 2011 with a further amendment in 2014. It is unclear why the ICJ findings did not acknowledge the specialization of Holland in Maritime Works and all Canalization projects which are already embraced within the Country’s blanket Policy¹⁶⁴. The Government of Netherlands did contend there is a distinction between work on a ‘dyke and flood-relief and canalization work’ and referred the Dutch language version ‘the Rivierenwet Law on Rivers’ for the directive as the version, and stated “as far as it is concerned, it was the only authentic language version”¹⁶⁵.

The ever evolving and fragmentated process surrounding EU EIA Policy, inherited by UK after Brexit, demonstrates the need for a comprehensive approach based upon a coordinated structure plan framework, adopting the latest ‘advanced project management services’ techniques, to assist Courts in wise judgements to environmental cases.

A history of the performance of existing records covering UK Environmental Law over the last 50 years must be examined and analysed, to ascertain and determine the requirements, if a fresh approach is to be taken. Present shortcomings and failings must be identified and recorded, particularly ‘unclear’ and ‘ineffective procedures’, together with failings to the present system, including failings to ‘Sentences’ for Water Pollution Offences. A comprehensive and fresh approach for ‘Sentencing’ is required for the Courts and must be aimed at quality ‘performance results. Specialist Environmental Panels must be established to assist UK’s senior Judges and to become an integral part of future court proceedings for environmental matters. Indeed, such specialist courts¹⁶⁶ have already been established in New Zealand¹⁶⁷ and some Australian states. Integrated management services techniques must be adopted by the Courts to effectively utilise these Impact Analysis tools, to handle sentencing procedures in effective ways to produce satisfactory performance levels.

The approach towards a restructured plan for EIA on anthropogenic projects has also to consider and embrace those projects which have been completed to a satisfactory performance level in the UK, and Internationally, and carried out under Contract Law procedures with the use of ‘modern advanced project management services’ (APMS), and in line with and supported by fiscal government policy. “Advanced Project Management Services (APMS) are an integrated set of project management tools which have been used in an integrated and co-ordinated way, and proven on a number of major Projects, to achieve good performance standards over a number of years”.

In the UK the Salford Quays Project covered the reclamation and redevelopment of a redundant inner city brownfield site including contaminated land¹⁶⁸. Once Salford City Council (SCC) had presented a comprehensive ‘Project Co-ordinate Programme’¹⁶⁹ to the ‘Department of the Environment’ (DoE), ‘derelict land grant funding’¹⁷⁰ was released to carry out the five-year programme of works and attract EU and other support funding packages. The full project embraced over 100 No. Infrastructure Contracts and attracted over 20 separate development projects and was completed within the 5-year programme without any major claims. All major Contracts in the UK use the structured Institution of Civil Engineers (ICE) model form of General Conditions of Contract¹⁷¹ and were used with proven management services tools and procedures. The ‘project co-ordinate programme’ is one such integrated APMS document tool, which achieved proven performance over a 4-year period by the City Council (SCC) and the Department of the Environment (DoE).

The International Islamabad Sewage Treatment Plant¹⁷² Project covered the construction of an integrated Sewage Treatment Plant carried out under a French Soft Loan to the Capital Development Authority (CDA), Islamabad, and the Whole of the Works went into Commercial Operation in accordance with the time programme on 18^th August 2007, despite the major Earthquake in the region in early October 2005. APMS tools included ‘critical path analysis monitoring/control’ procedures, which are used to trace accurate critical path records through a ‘project co-ordinate programme’ embracing all Contracts, including the ‘On-Shore’ and ‘Off-shore’ Contracts. Such performance indicates the advantages for specialised Environmental Courts to embrace such procedures, to ensure correct decisions are achieved, thus avoiding major extensions of time, and avoiding major delay and major additional project costs.

Two further major environmental IFI Projects, funded by the German Bank (KfW), demonstrate the effectiveness for adopting APMS integrated tools to achieve quality / timescale / budget targets for high performance standards.

In the Fethiye Sewerage Project, Supervision Services APMS tools were used, including: ‘Tests on Completion Structure Plan’, ‘Project Coordinate Programme’ and ‘monitoring / control procedures’, to achieve the Municipality (FESKI)¹⁷³ requirements for ‘early commercial operation’ for Fethiye’s Wastewater Treatment Plant¹⁷⁴, in December 2003; to be achieved prior to Turkey’s National Elections in 2004. The aim of this project was to eliminate the discharge of raw sewage to the Mediterranean Sea prior to the start of the Tourist season in 2004, for this popular Mediterranean resort.

While in another environmental project the ‘Greater Irbid double Project’ for the City of Irbid, in Jordan, and the adjacent town of An-Nu’ayyima and collecting villages of Kitm and Shatana, for which the purpose was to build new Wastewater Treatment Plants for Wadi Arab and Wadi Hassan. ‘APMS’ tools were used and included: ‘Project Supervision Structure Plan’, ‘Tests on Completion Structure Plan’ and an ‘Approach towards the target Project Completion’, in order to recover the heavily delayed project comprising of 7 No. separate Contracts, to achieve a completion of the Wadi Arab Project¹⁷⁵, to an adjusted timescale deadline, for the soft opening by Prince Hassan of Jordan and President Roman Herzog of Germany, during the commissioning period in 1999/2000. Project Completion Reports were submitted and endorsed to the satisfaction of the Employer, ‘’Water Authority of Jordan’ (WAJ) and the ‘German Financing Agency’¹⁷⁶ (KfW). This type of technical expertise is required within the make-up of specialized Environmental Courts¹⁷⁷ to assist and provide guidance to legislate on future UK environmental projects, for improved performance.

4.01. Clarification for terms used and adopted in this Paper:

i.) The definition of ‘Environment’ is important towards a structure and understanding for ‘Environmental Law’ and is taken as the substance and physicality of ‘surroundings’,¹⁸⁴ and our perception of the law for protecting the land, water and air on the planet, including all ‘flora and fauna’; indeed, it is our perception of ‘everything we see and understand’.

The structured approaches, and views, for prospective projects will differ between Employers, large Companies and Individuals, but will have the Intention for common responsibility. As such, a singular definition of ‘the environment’ is problematic¹⁸⁵ and indicates ‘incompleteness’ outlined in various environmental books¹⁸⁶, though the intention to protect and ‘avoid’ harm to the environment is a clear and common responsibility.

ii.) The ‘monitoring process' is an important mechanism and management tool, and ‘monitoring’ is highlighted in several sections of environmental legislation.¹⁸⁷ Monitoring requires both accurate readings and measurements to be effectively taken and published. This is to ensure effective operation and sustainability, which may require further action to ensure proper ‘monitoring / control procedures’ are taken, and to allow for an ‘assessment / review’ of the activity, or range of activities. This is to allow suitable adjustments to be made, to improve that activity or related substance, and / or the rate of that activity. Effective ‘monitoring/ control’ of ‘works programmes’ and ‘co-ordinated programmes’ may also avoid ‘critical ‘slippage’ to the progress of construction works of projects, and any changes required to material substances related to environmental activities, would be identified to manage and enhance performance standards during the construction period and project life.

iii.) Definition of Project: Construction Projects are governed in some form by a contract, or several integrated contracts for multi-disciplined works, or staged construction, to a particular designated area to suit planning policies, or as required by site conditions. Very large projects require permission at National Level¹⁸⁸ by the responsible Secretary of State, and are known as ‘Nationally Significant Infrastructure Projects’ (NSIPs), and automatically need an ‘EIA’¹⁸⁹.

In the case ‘Regina v Rochdale Metropolitan Borough Council, Ex parte Milne (2): QBD 31 Jul 2000’ a large project development was to be carried out in stages and outline planning permission was granted based on bare facts. In a separate case, ‘R. v. Rochdale MBC, ex parte Tew and Others’ local residents successfully opposed the outline planning application for development of a business park, on grounds of inadequate information and that no EIAs were submitted. Such a development may be termed a ‘multi-project’ type, and a structured co-ordinated approach, furnishing information related to the ‘project life’, together with as much ‘structured information’ as possible at the outline planning stage, may have avoided rejection and the developer loosing available EU funding at the time.

In the case EU v Ireland (C-50/09) [2011] Env LR 25, the EU ruled that ‘demolition works may constitute a ‘project’, irrespective that ‘demolition works was not expressly mentioned in Annexes I and II¹⁹⁰. The ECJ was referring to the stated categories, rather than the exact activity and nature of the work.¹⁹¹

iv.) Forms of Contract: The UK use two separate forms of construction contract, now referred to as ‘Infrastructure Conditions of Contract’ (ICC), and the ‘New Engineering Contract’ (NEC), which offer a fundamental review of alternative strategies for good practice. For International constructional projects, the ‘Federation Internationale des Ingenieurs-Conseils’ (FIDIC), ‘The International Federation of Consulting Engineers’, published a traditional FIDIC ‘Conditions of Contract for civil engineering construction’, known as the Red Book. In 1999 this was followed by the FIDIC ‘Conditions of Contract for a Construction’ suite of contract books also embracing Electrical & Mechanical Works which embraced: ‘Red Book’ for Construction Works, ‘Yellow Book’ for a Design-Build Contract (embracing mechanical and electrical works), ‘Silver Book’ for a Turnkey Contract and a ‘White Book’ for Model Services Agreement between Employer and Contractor¹⁹². In 2017 the UK and FIDIC¹⁹³ Forms of Contract were updated, and the suite(s) of Contracts expanded including also for project management services requirements, though this is beyond the scope of this paper.

World Bank signed a five-year agreement to use FIDIC standard contracts¹⁹⁴ for some projects they finance for FIDIC documents, AND to be used as part of their standard bidding documents.

4.1 The restructured UK ‘EIA’ Project path for ‘substantial completeness’ after Brexit is for a structured presentation in the following stages: ‘project preparation’, ‘legal and administrative process’, and ‘construction works, and project life’. (anthropogenic) See Figure 4¹⁹⁵.

4.1.1) 1^st Stage: the recognised process remains and is described under 3 structured steps:

Step 1, Project Identification: Conception and location of the project footprint

Step 2, Screening: Identifies whether Environmental Impact Analysis is required.

Step 3, Scoping: Identifies the scope of the project work.

4.1.2) 2^nd Stage: the legal and administrative process:

Step 4, the ‘Evaluation’: to assess and review the Impact on the environmental surroundings, together with mitigating circumstances and the preparation of a standard structured environmental ‘EIA’ report, with classified findings.

Step 5, the ‘Submission’: in a standard format, recorded through the local authority to the ‘Office for Environmental Protection’.

Step 6, Decision to be recorded by the local authority and the Office for Environmental Protection.

4.1.3) 3^rd Stage covers ‘the build’ and ‘operate’ for the duration of the project life. This is the implementation of the plans and programme envisaged in the ‘incomplete’ part of the process and must embrace nature and man’s environmental changes throughout the lifetime, including ‘climate change’, and other non-anthropogenic changes that must be monitored and recorded, and control procedures undertaken, to ensure sustainability, and an acceptable environmental balance.

Step 7: Construction Works Period: The analysis for this period is considered in three phases: the ‘commencement period’, the main ‘’construction works period and the ‘completion stage’ of the works, leading into the operational and commercial life of the project.

The ‘Commencement to the Works’¹⁹⁶ in contract law terms, is structured for a start date record in the Contract data record, and a ‘programme of works’¹⁹⁷ is agreed between the Employer¹⁹⁸ and the Contractor¹⁹⁹, and a comprehensive set of administrative procedures is in place to record a full set of contract records, usually under the management of an ‘Engineer’ to the Contract. For major, national and international projects a ‘Project Co-ordinate Programme’²⁰⁰ is adopted, together with a ‘Project Supervision Structure Plan, ‘to describe the complete methodology to be used for the duration of the project works. This may embrace a multiple number of individual contracts.

The construction works are carried out by the Contractor under the supervision of the Engineer²⁰¹ and his duties and authority are stipulated in the general conditions of contract between the two parties to the contract. Important duties include ‘monitoring’ of the ‘whole of the works’ and ‘collection and recording’ of data records.

The completion stage of the Works includes the ‘testing of all materials, plant and equipment’ and the issue of certificates for Completion of the Works at ‘taking-over’ followed by completion of proven ‘performance’.

Step 8: For the ‘Operational Life’ Period a structured set of ‘operation management procedures’ are required for monitoring, controlling and recording, during the operational life, and for larger and industrial projects a set of Operation and Maintenance (O&M) Manuals are adopted. Guidelines for monitoring, review and control procedures, to achieve sustainability for the environment, and including emissions and discharge of substances and materials, require proper regulation.

Step 9: End of Project Life: A new structure plan framework for the ‘decommissioning’ for all projects to be set up, to enable a satisfactory return to acceptable environmental surroundings, and full ‘Decommissioning’, accompanied by closure reports for Industrial and national projects.

4.2. Existing Environmental Regulations for restructure process

The following important primary and secondary legislation has to be embraced in the identification process, and inclusion of additional regulations in the structure plan for a restructured framework, covering the Climate Change Act 2008,²⁰² and the Environment Act 2021²⁰³, and including the Public Available Specification (PAS), commissioned by the Green Construction Board (GCB), under the auspices of the British Standards Institution (BSI).²⁰⁴ For the ‘Construction period’, ‘Operation period’’ and End of life period’, a number of the regulations may apply:

4.2.1) Climate Change Act 2008, Carbon targeting and budgeting²⁰⁵: carbon budgeting²⁰⁶, limit on use of carbon units²⁰⁷, proposals and policies for meeting carbon budgets²⁰⁸, targeting greenhouse gases²⁰⁹, carbon units, carbon accounting and net UK carbon account, and for (EA 2021):

PART 1 Environmental Governance: Chapter 1, Improving the natural environment: Environmental targets²¹⁰, Environmental improvement plans ²¹¹, Environmental monitoring²¹², Policy statement on environmental principles²¹³, Environmental protection: statements and reports²¹⁴.

PART 3 Waste and resource efficiency, Producer responsibility²¹⁵, Resource efficiency²¹⁶, Managing waste²¹⁷, Waste enforcement and regs.²¹⁸

PART 4 Air quality and enforcement recall: Air quality²¹⁹, Environmental recall of motor vehicles etc.²²⁰

PART 5 Water: Plans and proposals²²¹, Storm Overflows²²², Regulation of water and sewerage undertakers²²³, Abstraction²²⁴, Water quality²²⁵, Land drainage²²⁶ s94-s97

PART 6 Nature and biodiversity: Biodiversity gain in planning²²⁷, General provisions²²⁸ s142-s149

SCHEDULES - Schedule 1 through to Schedule 21.

4.2.2) For Environment Act 2021²²⁹ PART 1 - Environmental Governance:

CHAPTER 1- Improving the natural environment, Environmental targets²³⁰, Environmental Improvement plans²³¹, Environmental monitoring²³², Policy statement on environmental principles²³³, Environmental protection, statements and reports²³⁴. CHAPTER 2- The Office for Environmental Protection,

PART 3 Waste and resource efficiency, Producer responsibility 50 51, Resource efficiency 52 53 54 55 56, Managing waste 57 58 59 60 61 62 63, Waste enforcement and regulations 64 65 66 67 68 69 70 71²³⁵

PART 4 Air Quality and environmental recall, Air quality ²³⁶, Environmental recall²³⁷

PART 5 Water, Plans and proposals²³⁸, storm overflows²³⁹, Regulation of water and sewerage undertakers²⁴⁰, Abstraction²⁴¹, Water quality²⁴², Land drainage²⁴³

PART 8 Miscellaneous and general provisions - Regulation of chemicals - 140. Amendment of REACH legislation²⁴⁴

Schedule 10 - Enforcement Powers, Schedule 11 - Local Air Quality management framework, Schedule 12 - Smoke control in England and Wales, Schedule 13 - Modifying water and sewerage undertakers’ appointments: procedures for appeals,

Schedule 21 - Amendment of REACH legislation

4.3. New identified Environmental Regulations under a restructured process

This paper is confined to analysing a restructure for the actual ‘EIA’ skeletal path towards ‘substantial completion. ’A new UK National EIA structured process is beyond the scope of this paper, though it is important to highlight the parts to be addressed. See Figure 3. The present format and contents of EIAR 2017 comprises 12 Parts and 4 Schedules and the following additions²⁴⁵ are identified for inclusion, see Table 1.

Table 1

construction works and operational life’. [4(1)d] decommissioning - end of project life’. [4(1) e] construction works and operational life’. [new reg.] decommissioning - end of project life’. [new reg.] compliance with the requirements of the CCA 2008246, Carbon target and budgeting247, The Committee on Climate Change248, Trading Schemes249, Impact of and adaptation to climate change250, other provisions and General supplementary provisions251. [[new reg.] A further Schedule for ‘end of project life and return to environmental footprint’.

The changes will require a new Amendment for EIAR 2017 / 2018 to be triggered under EA 2021 containing aspects of new environmental law²⁵² through the Office for Environmental Protection, and to involve the relevant Minister²⁵³ (EA 2021 s40). The restructure to require a sequential order for 4 additional Parts and to embrace provisions under CCA 2008., as listed in Tables 2, 3, 4 and 5.

Table 2 Records and procedures during construction Works and Operational Life:

Duty to record commencement date of construction works. Monitoring and reporting during the construction period. Periodic reporting and submission of carbon emissions through construction period254 Duty to keep records of all tests on completion. Availability of record drawings Carry out commissioning where appropriate. Submission to local authority of project completion report Duty to issue set of Operation and maintenance Manuals where appropriate. Duty to issue Hand-Over Report for commencement of commercial operation Duty to set out annual timetable for preparation for all records covering maintenance procedures and carbon equivalent emissions. Duty to submit regular carbon equivalent emissions to appropriate authority body.

Table 3 New Part: Procedures for Decommissioning and End of Project Life

Duty to prepare and carry out Decommissioning of project when and as required. Duty to carry out, prepare and submit carbon emissions255 for ‘operational’ life records. Submittal of Project records to appropriate authorities. Preparation of ‘end of life’ Brownfield Site Land Report to local authority.

Table 4 New Part: Procedures for climate change requirements.

Duty to be following the requirements of CCA 2008256 Duty to prepare proposals for meeting the carbon targets. Duty to reach set carbon target and carry out carbon budgeting257 Duty to submit to the appropriate authority amount of greenhouse gases emitted, expressed as CO2e.

Table 5 Schedule 5: Decommissioning, ‘end of project life and return to environmental footprint’.

Characteristics of the demolition and removal of materials. the programme for the decommissioning period the methodology for removal and demolition the schedule and related data for recoverable materials information on transportation of waste material and location of disposal site. Location of project’s demolition site. the reuse of the brownfield site the methodology for safe removal and closure of all services the reintegration with the surrounding natural environment of contiguous site(s) the landscaping or capping of the project footprint. the plan for the landscaping characteristics of thematic soils, embracing soil properties and organic matter. Characteristics of changed acceptable environmental footprint. the absorption capacity of the natural environment England sites classified or protected under legislation. integration with the surrounding ecosystem transboundary effects and integration with wetlands lands and watercourses integration into densely populated areas.