CHAPTER 1: INTRODUCTION
"Environmental Impact Assessment (EIA) is 20 year old tool for environmental management, not living up to its full potential". (Mudge, 1993).
This chapter describes the Environmental Impact Assessment (EIA) planning process as conventionally depicted in subsequent EIA texts and guidelines. EIA characteristics and objectives are first presented because EIA planning process characterisations are interdependent with assumed EIA characteristics and objectives. Following the depictions of EIA characteristics, EIA objectives and the EIA planning process vary greatly from source to source. These variations are more the result of the varying perspectives of different authors than clearly defined schools of thought. Although, there has been a pro- process of evaluation over the past two decades, there also are many instances where elements suggested in earlier works have not been incorporated into most recent portrayals.
This overview of the conventional EIA planning process is a point of departure for the modifications and refinements discussed in later chapters of this research. Also, the conventional portrayals of EIA characteristics, EIA objectives and the EIA planning process will be revisited in later chapters, taking account of combined implications. The following are EIA characteristics as commonly depicted in introductory EIA literature and guidelines;
As a field of study EIA draws upon many social and natural science disciplines (Jain, Urban and Stacey, 1977). Drawing upon diverse disciplines' is necessary to understand the significant aspects of the environment in order to predict how those environmental attributes may change over time - with and without a proposed action; Boundaries between, and links to both traditional disciplines and to other transdisciplinary and transprofessional fields such as planning (Lawrence 1992). EIA must transcend individual disciplines if a holistic image of the environment with and without a proposed action(s), is to be presented. Hence, EIA should not be viewed as a transdisciplinary field.
EIA consist of structural approaches and set of procedures in order to ensure that environmental factors are considered in planning and decision making (Clark1981a). In this regard EIA is a normative procedure that seeks to identify natural and social environmental norms or ethical standards and to infuse these into planning and decision making.
In the definition of Environmental Impact Assessment, the "impact" element is often prefaced by one or more dimensional distinctions, such as; positive and negative (Mitchell and Takheim 1977; Rau and Wooten 1980); time ( short term, long term, frequency, duration); space (on-site, off-site); direct and indirect, quantitative and qualitative; individual and cumulative; and likelihood of occurrence (Rau and Wooten 1980). While the ''assessment" component of EIA includes "analysis" "synthesis" and "management"- Analysis involves data collection and compilation, the identification of likely environmental conditions and interactions among environmental conditions and systems (Mm 1979; Munro et. al 1986; Amour 1990; Erickson 1994) und the description, measurement and prediction of likely effects and interactions among effects. Synthesis includes the interpretation of the significance of affects and interactions among them (Munn 1979; CEARC l988b) and the aggregation and evaluation of individual and cumulative effects (Cumulative Environmental Assessment - CEA) both with and without mitigation (Westman 1985; Lang and Annour 1981; Armour 1990; Erickscm 1 994; Shoanaka 1994). Management includes mitigation (Jain, Urban and Stacey 1977) compensation and local benefits (Amour 1990), the management of residual impacts (CEARC 1988b), monitoring and contingency measures, and communications/ consultation activities (CEARC 1988b).
In summary, EIA is a process that identifies, predicts, evaluates and manages the potential (or real) impacts of proposed (or existing) human activities on both the human and natural environment. The EIA planning process includes analysis, synthesis, management, communications and consultation activities. The consequences of such activities and their alternatives will result in specific impacts.
Underlying EIA practice are usually implicating application assumptions. Formal or informal institutional mechanisms are, for example, anticipated to be in place to help to compel, or at least facilitate public or private proponents to initiate and complete an EIA planning process and the necessary documentation, as a perquisite to project approval. Along with perquisite methods it is expected that a systematic planning process can be devised or adapted for analysing and synthesizing the appropriate data and for involving relevant agencies and the public.
Further assumed that: there is appropriate expertise to tackle the necessary technical work and to review whatever the outcomes of the planning process; there is a basis for choosing among alternative plans and for deciding if an undertaking should or should not proceed; the people who make the decision will rationally use the information provided to guide their actions; the requirements for approvals can be enforced and the impacts managed if unforeseen impacts occur; the contingency measures can be instituted. These application assumptions have been increasingly challenged in the EIA literature and in decision of courts and hearing panels and boards. The expectation that knowledge and expertise are sufficient may be especially dubious in situations characterised by emerging technologies, poorly understood environments and complex inter relationships within and among proposed actions and components of the environment.
The extension of EIA from the conceptual to the applied pre-supposes that EIA must also be a transprofessional field of practice, EIA comprises of a core body of knowledge, skills and methods. Social and natural sciences provide the initial knowledge base- EIA seeks to integrate and, thereby transcend, the inputs and insights of a range of professions with expertise m the proposed action, the environment and their interactions, within a public policy setting. Frameworks, procedures and methods have been formulated and refined through practice, which over the years, has resulted in the emergence of EIA as a recognized area of expertise.
EIA is a planning tool (Bisset 1983; Clark l9û3a; Smith 1993). It is a form of applied policy analysis or more specifically, a form of resource management and environmental planning (Smith 1993). Consequently, the formulations and applications of environmental planning processes is one aspect of EIA. It, therefore, tends to be assumed that the EIA planning process should be anticipatory (prior to decision-making), systematic or orderly and rational. The results and conclusions from the EIA planning process should also be documented, generally in the form of an EIA report or statement.
EIA is a generic planning process intended to contribute environmental information to decision-making. It provides a regulatory basis for forcing the explicit consideration of environment concerns by public and private decision makers. As such EIA forms a part of the institutional fabric through legislation, public policy or administrative procedures. Institutionalisation requires mechanisms to prepare, review and document the process, to coordinate inter-agency and private/public interactions, to adjudicate disputes and to monitor and enforce compliance.
This dissertation therefore takes up this theme to investigate the effectiveness of EIA in the Skye Bridge project by considering the planning process and by using literature review as a means of analysis and research.
CHAPTER 2: LITERATURE REVIEW
On July 3, 1988, European Union (EU) Directive 85/337/EEC (Directive) came into force and as a result, Environmental Impact Assessment (EIA) became a part of the EU's environmental protection plans. The Directive requires that before consent is given for the development of certain "public and private projects that are likely to have significant effects on the environment," an assessment of those effects must be compiled and considered by the developer and the authority in charge of approving the projects. By asking decision-making authorities to ponder likely environmental harm before the harm occurs, the Directive promotes a policy of preventing environmental harm. The comprehensive effectiveness of mandating pre-consent environmental impact assessment is undercut, however, because the Directive textually exempts national defense projects from its process. This study suggests that the European Union could and should include national defense projects in its EIA law. Part I of this Chapter will provide a summarized, chronological evolution of environmental policy in the European Union. Part II will give a description and history of EIA law, including that of the United States, so as to provide a comparative and contrasting point of reference. Part III will propose a way by which the European Union can more fully live up to the preventative approach that it has espoused for environmental protection by requiring environmental impact assessments for national defense projects. This Chapter concludes that the inclusion of national defense projects in the EU's EIA law would broaden the scope and effectiveness of EIA law and environmental protection generally.
2.1. HISTORICAL AND LEGAL DEVELOPMENT OF ENVIRONMENTAL IMPACT ASSESSMENT LAW
2.1.1. The Evolution of Environmental Policy in the EU The 1957 Treaty of Rome (Treaty), which established the European Economic Community, focused on the creation of a common-trade zone. Accordingly, the Treaty failed to make any explicit statements regarding policies for environmental protection. In fact, until 1987, all EU environmental protection legislation was introduced via the general language of one or both of two Treaty articles that only implicitly recognized EU authority over environmental issues in Member States. Article 100 of the Treaty calls for the harmonization of laws affecting the common market in Member States. Article 235 authorizes measures that "prove necessary to attain one of the objectives of the Community" absent a specific delegation of authority by the Treaty. Although the Articles make no explicit reference to environmental issues, they have been used as authority for certain environmental regulations. For example, Article 100's allusion to issues affecting the common market was used as the authority to develop legislation that regulated product and industry standards across the EU.
On the heels of the increased environmental awareness that swept the globe in the late 1960s, the European Community initiated the European Community Action Programmes on the Environment. The first of these five-year programmes, covering the years from 1973 to 1977, established principles and priorities for future environmental policies. The second five-year programme (1977-1981) established a list of eleven principles and actions to be taken in order to move closer to the goal of environmental protection. The list included the decision-making tool of environmental impact assessment. The first two Action Programmes had a common theme of protecting human health and the environment by controlling pollution problems. The third five-year Programme (1982-1986) solidly shifted the emphasis of environmental policy from one of pollution control to one of prevention and integration of environmental issues into other European Community policies. Not surprisingly, it was during the era of the Second and Third Action Programmes when Directive 85/337/EEC, an inherently preventative and integrating piece of legislation, was first proposed and then accepted. The Fourth Action Programme (1987-1992) continued the trend of prevention but proceeded further beyond its predecessors by stressing the importance of using stringent environmental standards in regulating the activities of Member States.
The evolution of environmental policy in the EU took a crucial step on July 1, 1987 when, in conjunction with the adoption of the Fourth Action Programme, the Community adopted the Single European Act. The Act, which consisted of amendments to the Treaty of Rome, contained articles that specifically affected environmental policy. Article 100A recognized the relationship between promotion of the common market and protection of the environment by authorizing the EU to adopt environmental legislation on the basis that such issues affect the marketplace. Article 130R lays out the objectives of future Community action relating to the environment by formalizing the principles of prevention, subsidiarity, "polluter pays," and most importantly, integration. Article 130T reconfirms that individual Member States may enact environmental legislation that is more stringent than, but is compatible with, that of the Community.
The evolution of environmental policy in the EU from the 1957 Treaty of Rome through the various Action Programmes and to the Single European Act exemplifies the European Community's commitment to a preventative approach to environmental protection. EIA law stands as a hallmark of that preventative approach. The EU's commitment to the comprehensive prevention of environmental degradation is tested, however, by the limitations of its own EIA law.
2.1.2. Environmental Impact Assessment Law: A Description and Comparative Study
188.8.131.52. EIA: A General Overview
The "essential structure" of EIA law is common to all the nations that use it. Generally, EIA law is a process intended to minimize or prevent environmental damage that is usually associated with the construction and operation of certain development projects. Usually in the form of legislation, regulations and/or administrative processes, EIA law requires that certain development projects, while still in a planning stage, be analyzed in terms of their potential adverse impacts on the environment. Developers and/or governmental bodies, depending on the particularities of the EIA law in question, must conduct an analysis, or assessment, of the environmental effects of certain projects. The public authority responsible for granting or denying consent to the project is asked to take into account the results of the assessment. Again, depending on the particularities of the EIA law in question, provisions are made for public disclosure of the assessments, as well as for public involvement in the authority's decision-making process.
The EIA process plays four important roles in protecting the environment. First, EIA law gives concrete, practical effect to environmental policy language that is often broad, general and otherwise absent of specific mandates. The U.S. Congress, in formulating its declarations of environmental policy, included EIA so as to "insure that the policies enunciated . . . are implemented." EIA helps to insure proper implementation of policies by requiring the formulation and submission of written assessment reports, demonstrating an affirmative compliance with the environmental concerns outlined in policy language. A second role for EIA is to provide an analytical decision-making tool that "institutionalizes foresight." It asks the decision-making authority to look beyond the moment and to incorporate into its decision the possible irreversible future effects a project may have on the environment. Third, to the extent that EIA affirmatively asks developers and decision-makers to account for the social and economic costs resulting from their actions, EIA forces the internalization of those costs and consequences that might otherwise go unaccounted for. The final role that EIA plays is as a public-awareness measure. Most EIA processes allow for public disclosure of development plans, as well as for public participation in the decision-making process. In the words of Professor Nicholas Robinson, "EIA facilitates democratic decision making and consensus building regarding new development."
For EIA to incorporate environmental norms into decision making, it must address both environmental ethics and values and human ethics, values, perceptions, beliefs and attitudes. It is an objective procedure for identifying, measuring and predicting environmental attributes and changes brought about by existing or proposed actions, but is subjective in the interpretation, aggregation and management of those changes. Although driven by an environmental ethic, the links between EIA and ethical theory in general and environmental ethics in particular, have been tenuous at best. The tendency has been to assume that concepts and methods developed to predict and explain environmental change provide a sufficient knowledge base.
The practice of EIA involves, usually implicit assumptions regarding the known environment, environmental impacts and environmental norms. It is, for example, generally assumed that aspects of the environment and their inter- relationships can be identified, described or measured and monitored; changes, with or without a proposed action can be predicted to the extent that cause-effect relationships can be established; stakeholders' values can be determined; measures of impact magnitude and importance can be combined; individual and cumulative environmental consequences can be interpreted, aggregated and managed; end issues of probability of uncertainty can be managed sufficiently to decide whether a proposed action should proceed and, if so, then, in what fashion. These knowledge assumptions are questionable, especially in the subjective realm of conflicting values, perceptions and human behaviour.
The primary focus of EIA was initially on the physical and natural environment and, to a lesser extent, on the socio economic consequences of physical and natural environmental changes. The "environmental" aspect of EIA now generally embraces both natural (physical, biological and ecological) and human (human health and well being, social, cultural, economic built) environmental components and systems (Wiesner, 1995) and their inter relationships (Jain, Urban and Stacey, 1977; Estrin and Swaigen, 1978; CEARC, 1988b). There are many opinions regarding whether social impact assessment (SIA) or socio-economic impact assessment is or should be a sub-field of EIA (Morris and Therive1, 1995).
A broad definition of the environmental EIA facilitates a more comprehensive approach to environmental management but it leaves open the possibility that certain elements of the environment will not receive pertinent attention. The question of how best to integrate social, ecological and economic data and perspectives remains unresolved. Human actions alter the environment (Jain, Urban and Stacey 1977; Mitchell and Turkheim 1977). In EIA, the term "impact" generally refers to the accepted environmental consequences (Meredith 1991) of a proposed action or set of actions (Rau and Wooten 1980) and less frequently to the actual consequences of an existing activity. Distinctions also are often drawn between changes or effects (measures of magnitude) and impacts (measures of magnitude in combination with measures of importance), between alternations of environmental conditions or the creation of a new set of environmental conditions, and between environmental conditions changes caused or induced by actions (Rau and Wooten 1980).
Although the traditional focus of EIA has been capital projects, EIA requirements are increasingly applied to legislative proposals, policies, programs, technologies, regulations and operational procedures (Munn 1979; Estrin and Swaigen 1978; CEARC 1988b). The expectation that the conceptual basis for EIA largely developed at a project level can be readily extended and applied to policies, programs and technologies is questionable. At the policy and program level the range of inter related choices tends to multiply, impacts tend to be more generic and less amenable to precise prediction and EIA overlaps with policy and program evaluation, planning and environmental and resource management.
A distinction is sometimes drawn between project level EIA und the strategic environmental assessment (SEA) of policies, plans and programs (Sadler 1995). Risk assessment, technology assessment and environmental health impact assessment are viewed as either subfields within EIA (Sadler 1995) or as distinct fields that partially overlap with EIA in most cases EIA applies to the actions of both public and private proponents (Meredith 1991; Mitchell and Tuclcheh 1977). Alternative methods of achieving a proposed end and of managing the impacts associated with a partial choice are also usually considered in an EIA planning process.
184.108.40.206. A Comparative Study: The United States' Experience with EIA The significant history of EIA law began with the passage in the United States of the National Environmental Policy Act (NEPA) of 1969. NEPA was brought about as an instrument of policy and planning (Roberts, 1984a). Among NEPA's eloquent but broad declarations of environmental policy is a brief section mandating EIA law for certain projects, thus providing a set of teeth with which to enforce the statute's policies. Section 102(2) of the Act requires all federal agencies to prepare and include an environmental impact statement (EIS) with every recommendation or proposal for "major Federal actions significantly affecting the quality of the human environment." The importance and weight of this requirement, as well as the problems inherent in defining its triggering terms, are demonstrated by the fact that the EIS clause has spawned nearly all case law brought under NEPA. Much of NEPA case law has dealt with the issue of whether projects involving national defense and national security are subject to compliance with Section 102(2), and judicial review of such compliance. The environmental, public-awareness and military interests at stake in these cases are reflected by two questions. First, will compliance and judicial review compromise the confidentiality of matters regarding national security? Second, will compliance and judicial review compromise the ability of the military to proceed with projects, which while detrimental to the environment, are crucial to the defense of the country? In answering these questions, it is important to note that NEPA calls for EISs from "all agencies of the Federal Government;" the statute does not provide a textual exception for national defense or security projects. Despite the clear language of the statute, however, U.S. courts have struggled with the issue and are currently responding in a manner that runs counter to the language and true intent of NEPA.
Most court decisions find that NEPA-based claims against projects involving national defense interests are justifiable. Early cases, however, were ambiguous in answering questions of whether such projects must comply with NEPA requirements and whether EISs for such projects are subject to judicial review of their legal sufficiency. For instance, in the early case of McQueary v. Laird, the Tenth Circuit Court of Appeals dealt with a NEPA challenge to a military project by claiming lack of jurisdiction. In another early case, Citizens for Reid State Park v. Laird, the U.S. District Court for the Southern District of Maine found that NEPA applies to all federal agencies, including the Department of Defense. The Court in Citizens for Reid State Park refused to require an EIS for the Navy project in question, however, because it found that the plaintiff citizens group had failed to prove that the Navy plans constituted a major project significantly affecting the environment. Later court decisions often allowed national defense projects to proceed without an EIS or judicial review of an EIS, not because the courts believed that such projects did not have to comply with NEPA, but merely because the courts found that "major" federal action or "significant" effects on the environment--requirements necessary to trigger NEPA --were absent.
In cases where major federal actions having significant effects on the environment were found to exist, compliance with NEPA was required despite national security interests. In Committee for Nuclear Responsibility, Inc. v. Schlesinger, for example, the Supreme Court refused to issue an injunction for violation of NEPA, but the Court's rushed decision upheld a Court of Appeal's finding that the Atomic Energy Commission did have a "judicially reviewable duty to comply with NEPA requirements in spite of national security considerations." In Progressive Animal Welfare Society v. Department of Navy, the Western District Court of Appeals of Washington found that the Navy's plan to use dolphins in a military project was a major federal action with significant environmental impact; accordingly, a NEPA EIS was required for the project. Finally, in Concerned about Trident v. Rumsfeld, the Court of Appeals for the District of Columbia found that the Navy's plans for a submarine support facility required compliance with NEPA "to the fullest extent possible." The court found that the Navy's own internal environmental impact statement was insufficient to fulfill the requirements of NEPA. In making its decision, the court, citing judicial precedent as well as NEPA's lack of a textual military exception, rejected the Navy's argument that NEPA could "'not possibly apply' to strategic military decisions." The court stated that the Navy's plans were subject to NEPA requirements despite the project's "serious national security implications." In 1981, the Supreme Court again addressed the issue of the military's compliance with NEPA's EIA mandate. In Weinberger v. Catholic Action of Hawaii, the Court refused judicial review of the Department of Defense's compliance with NEPA in a matter of national security. The dispute began with the Navy's plan to construct a weapons and ammunition holding facility capable of storing nuclear weapons in Ohau, Hawaii. The Navy's internal assessment concluded that the facility would not have significant impact on the environment and as such, a NEPA EIS was unnecessary. The Navy's assessment, however, failed to include an analysis of the facility's impact on the environment should nuclear weapons actually be stored at the site. The district court that first reviewed the case found that the Navy had complied with NEPA to the fullest extent possible.
The Ninth Circuit Court of Appeals reversed the decision of the district court, arguing that an EIS was necessary and feasible since it would not necessarily release confidential matters. Important to the court was the fact that the Navy had already made the nuclear capabilities of the facility public knowledge. The court went on to suggest a "hypothetical" approach to writing EISs that would protect national security, environmental concerns, and public disclosure interests. Judge Merrill wrote that under this hypothetical approach, the Navy's EIS must evaluate the hypothetical consequences of storing nuclear weapons at the site but it need not imply that a decision to actually store nuclear weapons had been made. The court argued that since the public was already aware of the capability of the facility to store nuclear weapons, a hypothetical EIS that discussed the impact of such storage, but not whether it would actually occur, would not reveal anything the public did not already know. Further, it would allow the Navy and the decision-making authority to consider the true and potential costs and consequences of proceeding with the project. Finally, the Court stated that a hypothetical EIS would assure the public that the decision-making process had fully accounted for the project's externalities and consequences.
On review, the Supreme Court reversed the Court of Appeals' creative approach to balancing the interests at stake. The Court, discrediting the Ninth Circuit's notion of a hypothetical EIS, refused to mandate a NEPA EIS because it believed that doing so would reveal confidential matters of national security. In the majority opinion, Justice Rehnquist outlined the current status of the law regarding military compliance with EIA law in the United States. He wrote that public policies favoring the protection of confidential information regarding national security ultimately forbids judicial scrutiny of "whether or not the Navy has complied with NEPA 'to the fullest extent possible.'" Justice Blackmun, who concurred with the judgment of the Court, was joined by Justice Brennan in stressing that although the Defense Department may disseminate EISs in a manner that protects confidential matters, it is still bound by the obligations of NEPA.
220.127.116.11. A Comparative Study: The European Union's Experience with EIA
Sixteen years after NEPA took effect in the United States and after five years of consideration in the European Union, Environmental Impact Assessment law was officially incorporated into the statutory framework of the EU on June 27, 1985. Directive 85/337 mandates EIA for certain projects such as those involving crude-oil refineries, thermal and nuclear power stations, motorway construction and dangerous waste landfills. It also requires EIA to be performed in conjunction with those other projects that Member States find have a significant effect on the environment due to the projects' particular characteristics. The specific legal authority for the Directive is derived from Articles 100 and 235 of the EEC Treaty. The Directive also cites to the first three Action Programmes for their policies of preventing environmental harms at the source rather then trying to counteract environmental degradation once it occurs.
The procedure called for by the Directive identifies, describes and analyzes the effects a development project may have on humans, fauna, flora, soil, water, air, climate, landscape, welfare and cultural heritage. The EIA must contain a description of the project in question, an outline of the main alternatives to the project, the reason for choosing the proposed plans, a description of the significant effects the project will have on the environment, and a description of the measures that must be taken to avoid, reduce or compensate for those effects. Because developers have the best knowledge of the nature of their proposal, they have the responsibility of gathering the information and compiling the EIA. The decision-making authorities who have the power of giving consent to the developer's plans have the responsibility of setting standards for approval or disapproval and ensuring that the developers' EIA complies with the law. Further, they are obligated, by statute, to incorporate the EIA into their decision-making process. Also, Article 10 of the Directive states that the authorities must respect existing regulations and practices regarding industrial and commercial secrecy. Finally, the Directive envisions an active role for the public. In addition to supplying the decision-makers with information regarding the impact a project will have on the local environment, the public may have an opportunity to suggest alternatives and to pursue judicial action in order to request a review of consent. Further particularities of public participation and involvement are to be determined by the individual Member States.
18.104.22.168. The "National Defense Project" Exception to Directive 85/337/EEC
The effectiveness of the Directive in preventing environmental harms is undercut by the exception it gives to national defense projects. It is reasonable to infer that this exception reflects two assumptions. The first assumption, explicitly mentioned in the Directive, is that national legislative processes will ensure that defense projects comply with the Directive. No rationale is provided for this assumption except for the implied reasoning that national legislators share the concerns of the Directive and are able to guide national legislation accordingly. The second assumption appears to be that the confidentiality of Member States' national security matters would be compromised if the EU mandated EIA law for national defense projects. Member States may be concerned that applying EIA to national defense projects would violate their autonomy by subjecting their independent security and foreign policy to the investigative eyes of the EU. As such, the Directive leaves such matters to internal, national legislative processes.
The Commission's decision to exempt national defense projects from the Directive is under increased questioning by Member States and European citizens. In 1991, for instance, Mr. Diego de los Santos L. Pez of Spain presented a question to the Commission regarding the application of the Directive to a Spanish naval training camp and firing range using live ammunition. Although the Commission could not respond with a definite answer, it did say that if the firing range served a national defense purpose, the Directive would not apply. Another instance of doubt being expressed regarding the national defense exception to the Directive was made in response to the French Government's resumption of nuclear testing in French Polynesia. The Committee on the Environment, Public Health and Consumer Protection stated that "'it would be most timely and appropriate' if the `Environment] Commissioner were to ask for an environmental impact assessment to be carried out before the tests go ahead." The Member States, which were instructed to implement the Directive by 1988, have the authority of Article 130T to enact legislation that goes further than the Directive. Despite that authority, however, EU leadership has not sufficiently encouraged the Member States to extend EIA law to national defense projects. England's Town and Country Planning Regulations 1988, for instance, exempt projects serving national defense purposes from EIA requirements. In the absence of a direct mandate or at least the encouragement from the EU to move beyond the minimum requirements of the Directive, the environmental impact of the Member States' defense establishments will continue to go largely unchecked.
2.2.1. Applying Directive 85/337/EEC to National Defense Projects
The time is ripe for the EU to expand the scope of its EIA law to include projects relating to national defense. Exempting national defense projects causes the EU to fall short of effectively promoting the policies of prevention, integration, and harmonization that the Action Programmes and Directive 85/337 promote. The substantial size of defense budgets, whether shrinking or not, is indicative of the magnitude of defense projects and the potential effects they may have on the environment. For instance, wildlife and natural settings may be disturbed by aircraft, motorized transport, and explosives testing. In the United States, an Air Force range encompasses more than half of the Desert National Wildlife Refuge, subjecting the area to "flybys," weapons firings, and strafing of bighorn sheep watering holes. National defense projects may also contaminate the land and air, as well as water supplies, by igniting explosives and producing other solid and gaseous emissions characteristic of military activities. In addition to these threats, the normal accoutrements and influx that are necessary to equip military bases and run military programs make it clear that requiring EISs for national defense projects is a desirable and necessary step in the effective prevention of environmental degradation.
The absence of an EU mandate requiring EIA for national defense projects places the European environment in a position of unnecessary peril. The United States' experience has demonstrated that it is possible and advantageous to extend EIA law to projects involving national security. Further, the rationales behind excluding national defense projects from EIA law are essentially unjustified assumptions. First, if the EU truly believed that the legislative processes of individual Member States would achieve the objectives of EU directives, there would be no point in issuing enforceable directives and, further, no point in the existence of the trans-national common market itself. Forcing cooperation and harmonization of law among European nations was at the very heart of the formation of the EU. The EU's harmonization efforts imply that no one nation's legislative process is to be relied upon to achieve the goals of the Community at large. In the absence of EU mandates that correct for the expected varying results of individual nations' legislative processes, the significance of EU law vis-a-vis Member States' national law is placed very much in doubt. It is precisely because the individual Member States do not naturally act in harmony with each other and with over-arching EU policies that EU recommendations, directives and regulations are necessary.
Further, the fact that some Member States may already have regulations in place to force defense projects to account for their environmental impacts should not stop the EU from issuing harmonizing legislation. The purpose of Article 100 of the 1957 Treaty of Rome was to harmonize certain laws regarding the common market. The Directive itself states that one of its purposes is to harmonize the law of EIA so as to prevent "unfavourable competitive conditions" among the Member States. A situation wherein one Member State incurs the costs of mandating its defense establishment to account for environmental impacts while another Member State avoids incurring such costs clearly runs contrary to the harmonization and common market policies of the Treaty of Rome and of the Directive. That the EU has, in the past, introduced directives which affect pre-existing national law is illustrated by the fact that at the time the Directive was passed, some Member States had already been using EIA as a means of achieving environmental protection within their borders.
The second rationale for exempting national defense projects from the directive--that it would compromise national security--is equally unjustified. The line of U.S. cases running from Committee for Nuclear Responsibility to Concerned about Trident to Progressive Animal Welfare Society and culminating in the Ninth Circuit Court of Appeals' decision in Catholic Action demonstrates that EIA of defense projects is possible and has worked, even in light of national security concerns. A comparison to the U.S. situation is, of course, limited by the fact that the United States has a common defense system whereas the Member States of the EU largely retain autonomy from the EU with respect to their security and foreign policies. he United States' EIA experience is enlightening, however, in that it indicates that the general confidentiality of national security matters can be maintained while complying with EIA law. In Concerned about Trident, for instance, the Court of Appeals for the District of Columbia implicitly found that EIA would not jeopardize the confidentiality or effectiveness of the nation's security policies. Also, Justice Blackmun's concurring opinion in Catholic Action stressed that EISs may be constructed so as to avoid any threat of breaching the confidential nature of national security projects. By analogy, the Member States of the EU should feel confident that EIA law will not divulge the secrecy of their national security projects to the public or to other nations. Indeed, there is a means by which the interests at stake--prevention of environmental degradation, confidentiality of national security projects, and public awareness--can be served. These interests are not, as some may assume, antithetical to one another.
2.2.1. The Proposal
This Note's proposal begins with the use of a hypothetical EIS, similar to that which was discussed by the Ninth Circuit Court of Appeals' decision in Catholic Action. A hypothetical EIA system is an innovative means for achieving a balance between the interests at stake. y hypothesizing about proposed plans and discussing the environmental impact of those plans, it would be unnecessary for the military to reveal which plan was actually selected. Any material which the military claimed was confidential could be reviewed by the appropriate court in camera. Courts could use in camera review to decide whether the military's claim to confidentiality was meritorious and if so, whether the EIA was sufficient to satisfy the Directive. Further, under this proposal, any material that the court agreed was confidential would be excluded from a publicly released document. Next, the confidential material would be reviewed by an independent, objective governmental body, acting under a rubric of confidentiality, not unlike a U.S. congressional intelligence oversight committee. fter reviewing the material, the committee would compose a recommendation consisting of a brief opinion and numerical ranking that reflects its understanding of the project's environmental impact. The recommendation would not contain any reference to the confidential material that the committee reviewed. The committee would then make its recommendation available to the public and deliver its recommendation to the decision-making authority in charge of granting or denying consent to the project. Neither the public nor the decision-making authority would be made privy to confidential materials; they would have and be able to use, however, an informed review of the project's environmental impact.
It is important to note that the Directive already contains measures that ensure the secrecy of certain materials in the EIA process. Article 10 of the Directive calls for the protection of industrial and commercial secrets. Extending the scope of that article to include the protection of materials relating to national security would be a reasonable justification and aurance that the confidentiality of sensitive materials would be maintained throughout the procedure that this Note proposes. This proposed EIA system, as applied to national defense projects, would accommodate the various interests at stake. First, it would ensure that the decision-making process accounts for future environmental impacts and therefore more fully gives effect to a policy of preventing environmental harm. Second, the confidentiality of materials would be protected. As stated, outside of the body issuing the EIS, only an in camera court and an independent, confidential board would learn of those materials. Third, the public-awareness interest would be satisfied in that the public would be appraised of the decision-making process, including the independent board's recommendation ranking, and would be permitted to opine on the project's approval or disapproval.
Now is an appropriate time for the EU to expand the scope of its EIA law to include national defense projects. The U.S. model demonstrates that this expansion is possible. Further, factions within the EU seem ready and willing to adopt an expanded EIA law. The call for an EIA of France's nuclear testing by the Committee on the Environment, Public Health and Consumer Protection is indicative of an official desire to apply EIA to defense projects. Also, the 1991 publication of a written question regarding the application of the Directive to military projects is indicative of public concern over the impact that such projects have on the environment. The EU would be wise to amend the Directive so as to include national defense projects in its EIA law.
EU Directive 85/337/EEC makes EIA law applicable to public and private projects significantly affecting the environment. EIA, which has been utilized throughout the world, signifies a commitment to a preventative approach to environmental protection. In order to be truly effective, however, the Directive's EIA requirement must be extended so as to apply to those national defense projects that are currently exempted from the Directive. An EIA process such as the one proposed by this study, which is tailored to national defense projects, will give broader, more direct effect to the EIA policies intended to prevent the further degradation of our environment.
CHAPTER 3: RESEARCH METHODOLOGY
A review of the Environmental Impact Assessment of the Skye Bridge Project was conducted. It illustrates many of the issues the current issues facing the implementation of EIA at different sites in the UK. To fulfill the purpose of the investigation, the author have used various theoretical models and applied them in environmental studies. Analysis instrument is designed specifically and criteria, bringing into operation in the work. This was done through careful considerations.
An increased interest in the theory-oriented case studies has been shown in recent years not only in the state science but also in other social sciences such as sociology and economics. The development of philosophy has resulted in a more stable basis for case study methods. Case studies, as well as other methods, are useful for theory development almost regardless of which tradition you belong to (George & Bennett 2005). Qualitative case studies focus on the discovery, interpretation and understanding rather than on hypothesis testing. Case studies are an appropriate method when:
- Required details of any specific context, as when the study items are complex for an exploratory study or an experiment.
- Is a description of the context
- An evaluation facilitated by an illustrated case study.
Case studies show what happens under actual conditions and provides a detailed knowledge about the process. The case studies illustrated some existing phenomenon. The case studies do not show whether the conditions exist for something similar to happen in other organizations or the like. Discussion and conclusion is based in the case study included in this study.
One of the strengths of case studies is that it involves a high degree of conceptual validity, i.e. one can identify and measure the criteria which correspond to the theoretical framework. Some variables are difficult to measure, such as political regime. A researcher should make use of contextual comparison as "self-consciously seek to address the issue of equivalence by searching for analytically equivalent phenomena - even if expressed by substantively different terms - across different contexts" (Locke & Kathleen 1998). This requires taking into account the contextual factors that are difficult in the example statistical studies.
Another advantage is that one can define new variables and hypotheses by studying deviant cases (George & Bennett 2005). A common criticism against case studies is that the choice of cases is distorted. Although it is a big problem but it also applies in the use of statistical methods. One might ask if the researcher prefers a hypothesis over others (George & Bennett 2005). Here, the author believes that it is not possible to eliminate its existence and that training and re-training required for building a good case study. Another criticism is that case studies are not representative (George & Bennett 2005). If one applies for case A, it does not apply to the case B. The Author will not make any claim that this case can be applied to others, which leads the critic may consider the case without any value. It is argued that a generalization is possible because it can later make comparisons with other countries. With the help of comparative elements can construct classifications based on the analysis. The researcher Yin discusses the concept of analytical generalization, which can be used even when the case study contains one or a few cases (Yin 1989). The term refers to the researcher's thinking ability and style, together with a careful and reflective interpretation helps that it is possible to generalize about the patterns one discover. This should be combined with an account of alternative interpretations and explanations (Yin 1989).
Reliability is the question to what extent the results can be repeated. If an investigation at repeated occasions with the same method to the same result, it is deemed to have high reliability. The goal of reliability is to minimize the errors and distortions (Yin 1989). The qualitative research makes the assumption that there exist different interpretations of what is happening and there is no guarantee that other researchers reach the same result. To minimize the likelihood should carefully document the procedures and how to operation up their criteria. It is a process in which the theoretical definition is given one or more operational indicators. Bringing into operation is of great importance for the results we get and how safe we can be on them.
CHAPTER 4: RESULTS & DISCUSSION
The Skye Bridge is a remarkable story of public procurement mixed with private capital. Although no proper examination of the extent of the threat exists, the bridge is a threat to wildlife, including Eurasian otters, a type of Coastal otter. A mixture of International treaty, European Union, and domestic British law purportedly protects these endangered species.
The Skye Crossing: Environmental Statement (Skye-EIA) discussed site analysis and ownership, geological surveyance, existing vegetation, marine charting, and soil surveyance. However, two serious defects exist. The price per copy is a staggering for the standard version or for the glossy version. This excessive cost limits access, public discourse, and debate, the raison d'etre of the EIA process. The objective of the Skye crossing was to provide a privately financed, fixed crossing to Skye as explained by a Government Green Paper. Thus, the second main criticism of the Skye-EIA was its misstatement of facts:
"This Environmental Statement is an essential part of the process demonstrating that all aspects of the design have been adequately considered and that all reasonable precautions have been taken. This Environmental Statement is published in association with the Road Orders for the project and has been prepared in accordance with the European Community Directive 85/337/EC and the Environmental Assessment (Scotland) Regulations 1988".
The Skye-EIA also failed to determine the cost of alternative schemes. The then-Scottish Secretary, Mr. Ian Laing, said that the Skye Bridge was part of the Government's "non-interventionist" approach to the future provision of essential public amenities, however, a classic conflict of interest arose between the government as the promoter and overseer of the project. This conflict pitted economic exigencies against the whole concept of sustainable development.
Celebrity activists like Bridgette Bardot helped to focus attention on the matter. Indeed, work began on the project before the February 1992 public inquiry report was released. The report was coloured with allegations of cynicism and hypocrisy and encouraged a campaign of direct action, which thereafter resulted in the arrests of demonstrators for breach of the peace near the construction site.
Employing his discretionary powers, the Secretary of State disregarded the recommendation of the public inquiry concerning bridge design and otter protection.
For various reasons, both good and bad, the adversarial system in Scotland discourages public-interest litigation. Opponents of the Bridge made a Court of Session challenge to the merits of the EIA but were thwarted by a slow, expensive, and cumbersome process. Public-interest litigation concerning the environment needs a streamlined process, guaranteeing faster and less expensive access to the courts.
In Stevens v. Secretary of State, environmental activists objected to the hearing outcome, and lodged an appeal in the Court of Session. These activists sought suspension of the Scheme and attendant Orders, and their appeal went through two years of interlocutory motions and procedural skirmishes which forestalled the court from determining the merits of the claim. However, EIA is just beginning to develop in the European Union, and a lack of precedent inhibits rational procedure. By treating it as a form of localized planning law, therefore, environmental review has become impotent.
Stevens v. Secretary of State involved an interlocutory motion concerning the 1979 Berne Convention on the Conservation of European Wildlife and Habitats. This multilateral, international treaty provides for the protection of certain species, including otters (Lutra lutra). Although an EU Council decision adopted the treaty, the issue became whether the laws of the United Kingdom have fully incorporated the treaty even though Britain reputedly implemented the Berne Convention by passing the 1981 Wildlife and Countryside Act. In other words, the questions remaining unanswered were whether Britain partially implemented its EC obligations and what steps were necessary to ensure compliance with this treaty.
II. Otters and Environment: "Ring of Bright Water"
The Skye bridge runs from the west of Kyle of Lochalsh to the island Eilean Ban (actually two islands) and then crosses to the western side of Kyleakin on the eastern shore of the Isle of Skye. Eilean Ban was formerly owned by Gavin Maxwell, author of Ring of Bright Water, a novel about otters which was later made into a 1969 feature film.
Maxwell wanted to establish an otter sanctuary on the island but died before accomplishing his goal. He reportedly contributed 10,000 to the World Wildlife Fund for Nature. This high-profile environmental group was noteworthy in its absence from the bridge protest. Because the Bank of America funded the group with 3 million, part of the project consortium, this environmental group was co-opted. Thus, business joined the environmental bandwagon and tried to shape the movement and debate. One of Maxwell's otters, Teko, is buried on the island. Consultant ecologists did not find Teko's grave but cited a literary reference from The White Island by Sir John Lister-Kaye, who carved Teko's name on a nearby rock:
Teko alone chose not to be moved again. He died suddenly and unexpectedly of a heart attack whilst swimming in his pool. We buried him at the foot of a huge boulder at the top of the island and I carved his name and dates in the rock face above the spot: Teko 1959-69. A Memorial to the last of the Ring of Bright Water otters. As the dinghy crunched into the shingle of Kyleakin beach for the last time on that December morning, we turned to look back at the island which had been our home . . . . For the first time I saw a good reason for the island's name, Eilean Bhan, the White island.
While ubiquitous in the West Highlands, otter populations are endangered in England except in the western regions. Two national surveys in the mid-1980's reported otters inhabited approximately 75% of the Scottish landmass, compared to 9% of England's--a common phenomenon across Europe.
The Scottish otter population has international significance; it is one of only three substantial marine populations in Europe. Marine populations are important due to their relative scarcity and, although otters are not distributed equally across Skye's coastline, the crossing area is one of the most populated habitats around Skye. The World Conservation Union, a Swiss environmental group focusing on otters, stated that the Scottish otter population should be officially recognized as having international importance, that the scheme should be stopped, and that conservation of viable populations like those along the crossing route should be given top priority. Although few otters inhabit a single kilometer of shore in the West Highlands, the social organization of the animals suggest that the Skye crossing's population is more dense. Female otters in groups of four or five exclusively occupy ranges up to 14 kilometers around holts (natural cairns); males occupy more expansive ranges. The crossing area of Eilean Ban currently has an estimated ten to twelve resident otters with a about two or three transients at a given time. Otters eat small bottom-living fish or crustaceans and hunt near rocky shores, where the seaweed zone is well-developed. Otters are prone to hypothermia because they lack a layer of subcutaneous fat, and the insulating quality of their fur decreases after repeated immersions. To restore this insulation, they require frequent grooming and bathing in fresh- water to remove accumulated salt crystals. Otters are protected pursuant to Schedule 5 of the Wildlife and Countryside Act 1981. Recently, the Forestry Commission created an "otter haven" at Kylerhea.
Approximately 700 coastal otters might inhabit the Skye and West Highland region, but the estimated loss of twenty to thirty on bridge crossing is nonetheless significant. Despite the Skye-EIA's statement that they "do not see this as forming a major problem" after construction, bridge construction, with its attendant sea-water passages, will likely disturb and destruct the otter's habitats, including the holts. Likewise, road construction will likely increase the number of road casualties--a "sump effect" will attract new individuals to spaces vacated due to the loss of a resident animal. One study in Shetland found that roads accounted for 42% of all known mortalities, despite the otter's low reproductive rate and cub development. The Vincent Wildlife Trust, consultants for the bridge builders, claimed that the bridge would destroy at least two holts, impede four paths, and one sea passage between Eilean Ban and Eilean Dubh. Because dense vegetation prevented surveying inland, the Skye survey was "accurate but limited" and further acknowledged the need for a winter survey, which was never conducted. Consequently, a minimum of fifteen to sixteen otters will likely be affected.
Consultants recommended replacement of otter holts by relocating artificial sites, provided their location did not encourage animals onto the road. Otter road signs, like those in use in Shetland and Orkney were recommended in addition to road underpasses, fences and overhangs around vulnerable sections of the crossings, and drains flowing off embankments at steep angles to discourage otters naturally attracted to freshwater. The Skye-EIA accepted that "the relationship between plants and animals, though often complex, is one of mutual dependence." However, the SkyeEIA did not complete a full otter study and recommended that a survey be undertaken in the winter months when low vegetation would allow survey of habitats away from the shore. This was not done despite the recommendations of the Public Local Inquiry.
III. The Skye Bridge Proposal
In 1986 the Highland Regional Council considered the feasibility and socioeconomic effect of building a bridge to Skye; it found the financial cost to be too expensive. About this time, the Government published a Green Paper entitled New Roads by New Means. This Paper proposed that roads which were not economically justifiable, and therefore could not utilize public funds, could instead be built by private enterprise and financed by collecting toll charges. In October 1989, Highland Regional Council voted in favor of this proposal and created a Skye Bridge Working Party, which received expressions of interest from over fifty companies. Six of these companies submitted proposals to design, build, finance, and operate the bridge. In February 1990, three finalists were chosen to tender: the Miller/Dywidag joint venture, the Morrison Construction Group (a cable stay bridge proposal), and Trafalgar House Offshore and Structure Ltd. These companies prepared tenders pursuant to a performance brief prepared by the Highland Regional Council and J.M.P Consultants Ltd. This "performance" or outline brief stipulated a minimum free height of thirtysix meters above the high-water mark, thus precluding tall ships from sailing up the Sound of Sleat. The brief also excluded an alternative direct (central location), low-level causeway plus bascule bridge solution, which was proffered as the least environmentally damaging. Nevertheless, officials urged that "this brief, in addition to technical and financial matters, directed attention to the need for the proposed crossing to be designed with priority given to any environmental effects it might have on the exceptional location in which it would be built."
In November 1990, after submission of the three tenders, the views of the Royal Fine Art Commission for Scotland, the Countryside Commission for Scotland, and the National Trust for Scotland were sought. The three finalists engaged Professor Fritz Leonhardt, the consultant and a member of the Pisa Tower Committee, who preferred an alternative high level cable-stayed bridge design, which was preferred based on its more aesthetic qualities and its relation to the nearby topography. All three finalists expressed grave reservations about the design of the least expensive tenderer, the Miller/Dywidag submission for a 23 million box-girder design. In April 1991, however, this design was announced as the preferred scheme. The Highland Regional Council approved the proposal to proceed with the preferred scheme in September 1991. The design team for the project was Dykerhoff & Widmann A.G. as the bridge designers, Ove Arup and partners acting as the project engineers, and Glasgow-based landscape and environmental consulting firm of Holford Associates.
While popular support on Skye favored the bridge (before ferry service became a 24-hour service), it has always remained decidedly opposed to a toll bridge. More than 2,000 islanders objected by petition and letter. Hence, the immediately affected communities branded the Highland Regional Council members as "quislings," due to their apparent acquiescence to the dictates of the Scottish Office to accept either the toll bridge or no bridge within the foreseeable future.
The Council will act as agent for the project during the payback period, estimated to be twenty years, in which tolls will be an inflation-linked version of 1991 ferry charges exceeding 4 per car. Now, the sum exceeds 5 per car peak season. 50,000 PIEDA consultant's study assessed the likely impact of the bridge on the two communities, stating that it would hit Kyleakin the hardest by causing a loss of jobs due to the ferry closure. Proposals were made for a 228,000 tourism-visitor center initiative to develop Kyleakin when its present role as the "Gateway to Skye" dissipates.
Compulsory purchase Orders and Road Orders were issued on October 23, 1991, and published about a week later. Objections were received within the prescribed 6-week period, and a statutory "Public Local Inquiry" was subsequently ordered by the then-Secretary of State, Ian Laing. However, the terms of reference had a limited scope, referring only to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947. This Public Local Inquiry heard objections from a wide range of interest groups.
The contract was signed December 16, 1991, before the Public Hearing concluded. However, the terms remained secret--ostensibly due to reasons of "commercial confidentiality". Ironically, the whole matter affects the public interest. The Secretary of State has quasi-judicial functions, but the act of awarding the contract effectively made the public hearing process the subject of concurrent proceedings. To the contrary, planning procedure usually does not condone project construction during a pending appeal.
Procurement of government contracts should be more "transparent" than commercial arrangements between private individuals at arms-length negotiation. Government contracts are different from private enterprise contracts, because government has a superior bargaining position and owes political accountability to parliament. Here the construction contract was signed while consultation and possible public litigation concerning the bridge was pending (lis pendens). The process should not fetter the Government's ability to conclude ripe private deals and should preserve resolution of bona fide public disputes.
The confidential construction contract may or may not have provided an escape clause if an appellant's case succeeds. Nonetheless, the Government would likely face a penalty payable to the contractor if it stopped or canceled the project. The implication is that the Government disdainfully regarded the local public hearing and the potential appeals as a fait accompli, in the Government's favor. Part of the Government's confidence stems from the narrow possibility of remit of the EIA.
The Skye-EIA stated: "Ecology and Landscape: The area is extensively used by otters and the main features of their habitat have been identified together with mitigation and habitat replacement proposals, with a view to minimizing disturbance and reducing the risks of road mortality." Appendix 9 of the report specifically concerned Otters and was prepared by The Vincent Wildlife Trust, London.
The Public Local Inquiry (PLI) was held between January 28 and February 7, 1992, by Miss E.B. Haran (the "Reporter"). Draft copies of Part I of the Report were circulated to parties for comment. No full transcript of the hearing (a first instance proceeding) was circulated even though the Reporter recommended that:
[8.2] . . . further consideration is given to the risk of disturbance of otters on the islands . . .
[9.32] . . . further consideration be given to resolving the potential conflict between providing opportunities for quiet enjoyment of the islands and adequate protection of the otters . . .
[9.66] and . . . a supplement to the Environmental Statement is prepared in respect of changes made since the Statement was published and matters omitted from the Statement (para 9.7).
Thereafter, the Secretary of State replied that:
15. . . . The Secretary of State is not persuaded that there are any significant omissions from the environmental statement, nor does he consider that a supplementary environmental statement is the appropriate means of updating the information referred to by the reporter in 9.7. Accordingly, he does not agree with the consequent recommendations in paragraph 9.16.1 that a supplement should be prepared.
17. . . . The Secretary of State accepts the Reporter's conclusions in paragraphs 9.31 and 9.32 regarding the need for further protection for the otters. These matters continue to be pursued and will be the subject of consultation with the Scottish Natural Heritage and the National Trust for Scotland. Arrangements will be made to have otter activity, and the effectiveness of the measures introduced, monitored by representatives of the Vincent Wildlife Trust.
The foregoing decision is final, subject to the right of any person aggrieved by the decision to apply to the Court of Session within 6 weeks [pursuant to the] Tribunals and Inquiries Act 1971. IV. Opposition to the Bridge Design
The high box-girder bridge requires 2.5 miles of approach roads with a secondary bridge. These approach roads will cost approximately 10 million and will be financed publicly. The project bypasses the village of Kyleakin, thus requiring publicly-funded mitigation roads. Professor Fritz Leonhardt of Stuttgart, a leading world expert on bridge design, wrote a report commissioned by the National Trust for Scotland (NTS), the Countryside Commission, and the Royal Fine Arts Commission for Scotland. He remarked, "I think that all other options for the Skye crossing have to be properly investigated and . . . . an environmental Assessment carried out by an impartial team of experts and more time for public consultation as well".
Professor Leonhardt criticized the heavy box-girder design as being aesthetically and environmentally the most damaging. He further disputed the figures cited by the Scottish Office for modern cable-stay bridges, contending that it could be cheaper and citing modern technology in Norway in support of this contention. In an effort to allay criticism, the Skye-EIA stated that "aesthetic quality is a subjective issue, however, and, as with any scheme of such visual importance, the bridge inevitably will have both admirers and critics." The Skye-EIA, even as drafted by its proponents, was a portent of future controversies.
The Secretary of State overruled the advice of the Royal Fine Arts Commission for Scotland, which advised a different style of bridge more uniform with the landscape. The Skye-EIA admitted that the bridge and roads "will lead to a loss of the islands' character and individuality," but it claimed that the bridge and roads would lessen the occurrence of vandalism aimed at the lighthouse and the keepers' cottages.
V. National Trust for Scotland: Conflict of Interest The box-girder design was criticized by the National Trust before it sold crucial land after a high-pressure visit from Scottish Office officials. The Trust, which owns the Skye landing, had previously maintained that the proposed bridge had to be "an outstanding design of international quality," yet in October 1991 it yielded to Scottish Office political pressure. The National Trust for Scotland is an independent charity that owns over one hundred properties of national importance "in perpetuity for the Nation." The National Trust employs the motto: "We serve the nation."
These are the terms under which the Scottish Office purchased the island Eilean Ban:
. . . the larger of the two islands at the mouth of Kyle Akin where it meets the Blind Sound at the southern limit of the Inner Sound of Raasay. The Smaller island, Eilean Dubh, is in the ownership of the National Trust for Scotland, and although in private ownership, the Trust is also feudal superior of Eilean Ban itself. The islands are often referred to as one, Eilean Ban, but are separated by a calas, except at low tide when the crossing can be made by foot.
The Scottish Office has no power of compulsory purchase over NTS property. The environment minister at the time, Lord James Douglas-Hamilton, wrote to the Trust chairman Charles Tyrell, stating that if the NTS opposed the government-approved bridge, compensation would be due to the construction company, no bridge would be built, and "great disappointment"would exist among the residents of Skye.
Allegedly, the Minister and other high-ranking Scottish Office officials bluntly intimidated the NTS by telling them if they did not approve, a bridge would not be built for another twenty years. In April 1996, the Scottish Office announced its intention to sell the island by public auction in the Central Hotel in Glasgow, but later withdrew the sale. As late as November 1996, the Scottish Office was engaged discussions with environmental groups about the sale of the island. When the NTS council voted in 1991 against the recommendation of the Bridgeworking party for a cable-stayed bridge, the council sought to save face by pressing for minor modifications to the concrete box girder bridge--namely, switching to Vshaped pillars. These modifications were rejected by the design team leader of Dywidag of Munich, which designed the crossing with the Miller Group as a joint venture. On the Skye side of the bridge, Mrs. Clodagh MacKenzie was upset because her woods were cut down to make way for the bridge approach. Her late husband left money to the National Trust of Scotland in 1971, and they jointly signed a conservation agreement protecting the Kyle House policies and land. This was probably a breach of faith by the National Trust for Scotland and certainly amounts to poor stewardship in light of their acquiescence to political pressure from the Scottish Office.
VI. E.U. Environmental Assessment
E.U. Directive 85/337 provides for both an Environmental Impact Assessment (EIA), and the legislation which implements the EIA. Because European Union environmental law is newer than its American counterpart, Britain was less than enthusiastic about the Directive; however, it was adopted unanimously. The history and character of America was forged by the frontier, "the ever advancing line where civilization confronted nature. Each move forward provided a clean slate and free land where the advancing Americans would develop an independent spirit and a democratic society." Conversely, the European Union is comprised of twelve ancient member states, numerous cultures, and several language groups whose turbulent, sometimes even aggressive, history did not experience a "frontier" in the Eighteenth and Nineteenth Centuries. Therefore, European environmental laws are new attempts to tackle regional controversies like the perennial hot potato of Scottish land use and ownership.
Initially, the E.U. focused on solving acute problems within the Community. However, realizing that pollution did not stop at its frontiers, the E.U. intensified cooperation with other countries. Generally, however, the initial response within western European states to the environmental agenda has been muted. Several reasons account for this slower application. European planning law, at least in north-western Europe, already required a measure of environmental assessment as part of normal planning and development controls. Corporate and government actors had already found means of controlling chemical and nuclear toxic wastes in response to the existing requirements of occupational health laws, the social welfare culture and the high density of population. The problems of regaining economic growth have also tended, until recent years, to swamp environmental issues.
Community policy has recently accepted that climate change, ozone depletion, and diminution of biodiversity are "threatening the ecological balance of our planet as a whole." E.U. environmental policy presently seeks "sustainable development" through a mixture of coercion and self-regulation.
But black-letter environmental provisions are relatively new, and reference must be made to general Community law. Pursuant to article 130r(1), Community actions affecting the environment must satisfy objective requirements, for example, "to ensure a prudent and rational utilisation of natural resources." Article 130r(2) goes on to state that "environmental protection requirements shall be a component of the Community's other policies," and Article 130r(3) directs that in preparing its action relating to the environment, the Community shall take account of: (i) available scientific and technical data; (ii) environmental conditions in the various regions of the Community; (iii) the potential benefits and costs of action or lack of action; (iv) the economic and social development of the Community as a whole and the balanced development of its regions. ]
Like EEC Articles 8a and 100a, which promote the approximation or harmonization of national laws which otherwise would create obstacles to free trade, Articles 130f and 130r create "multidimensional framework provision(s)". These provisions are unlike the "straightforward, unambiguous, onedimensional" provisions of classic Community law such as Article 34(1) Quantitative Measures and measures having equivalent effect. Thus, "there is no absolute frame of reference and Community law is now about to enter into its relativistic age where formulas need to be found which allow the reconciliation of a magnitude of shifting frames of references, each of them composed of a set of legal objectives of equal importance."
The interdependence of environmental exigencies accentuates this relativistic age. Mandatory environmental assessment in Britain came into force in July 1988 because of E.U. initiatives. E.U. Directive 85/337 took over twenty drafts and ten years before the legislature approved it. The Directive was designed to provide uniformity of EIA requirements for all member nations. "There was concern within the Community that great disparities in such legislation would affect investments in the Community and distort economic competition within the common market."
The Directive sets out the basic framework for assessment to be implemented in each member state, listing twelve categories of development that could require environmental impact statements and nine categories which are mandatory. The latter categories require specified information which describe the project, precautions against adverse effects, data required to assess the main environmental effects on the environment, and a non-technical summary and consultation with interested "authorities." For instance, mandatory assessment is required for facilities such as crude oil refineries, thermal power stations, motorways, and roads over a certain length. An impact statement must consider the direct and indirect effects of a project upon: (1) human beings, fauna and flora; (2) soil, water, air, climate and the landscape; (3) the interaction between these first two items; and (4) materials, assets, and cultural heritage.
Although the British Government thought that the Town and Country Planning Acts were sufficient, it felt that defining the type of projects needing assessment would be difficult. Pursuant to section 42 of the New Roads and Street Works Act 1991, "special roads" are treated as having characteristics which make Environmental Assessment compulsory within the meaning of Annex 2 of the EIA Directive 85/337/EEC. Thus, certain planning purposes which are classified by British legislation require environmental impact assessment. The process requires wider consultation than ordinary planning applications and must be advertised in the same way as a bad-neighbor development. It also takes the form of an "Environmental Statement," which must have a non-technical summary of its contents and be publicly available at a reasonable charge.
In Kincardine and Deeside District Council v. Forestry Commissioners, the District Council (petitioners) objected to a Woodland Grant Scheme to plant trees on an area in the petitioners' district. European Union Directive 85/337 provides that projects likely to have a significant impact upon the environment must be subjected to an EIA before consent is given. This directive concerned forestry in the United Kingdom by the Environmental Assessment (Afforestation) Regulations of 1988. The respondent Forestry Commissioners claimed that the petitioners had no title and interest to sue. Lord Coulsfield held that the petitioners' concern to encourage tourism gave them sufficient interest in the matter, however, the Directive was not unconditional and sufficiently precise to have direct effect in the United Kingdom. Furthermore, the court held, the petitioners did not prove that the respondents failed to consider any requirements of the 1988 regulations or any Directive having direct effect in the United Kingdom.
In Lewin and Another v. The Secretary of State for the Environment and Another, representatives of the Society for the Preservation of the Field of the Battle of Naseby unsuccessfully challenged a road construction project order under the Highways Act concerning the M1-A1 link road. Judge Otton dismissed the motion for judicial review, stating that the Minister "must consider the environmental statement, any opinion expressed by the public and publish his decision as to whether or not to initiate the project." This judgement is unsatisfactory, however, because it failed to define the ambit of the considerations required of the Minister. The court consequently noted that a series of interconnected road orders, concerning an original line road and attendant side-roads, was not "one project" under the Directive and the regulations. Therefore, the court did not award costs, citing salient provisions of EC Directive 85/337:
For the purposes of this directive, 'project' means: the execution of construction works. 'Developer' means: the applicant for authorization for a private project or the public authority which initiates a project; 'Development consent' means the decision of the competent authority or authorities which entitles the developer to proceed with the project .
Article 3 provides: The environmental impact assessment will identify, describe and assess in an appropriate manner, in light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors: . . . .
Art 4(1) refers to projects of the class listed in Annex I which shall be made subject to an assessment. (this class includes construction of motorways, express roads). . . .
Art 4(2) refers to projects of the class listed in Annex II which shall be made subject to an assessment . . . . where Members States consider that their characteristics so require.
Art 5(1) is largely procedural, requiring specific information, elaborated by Annex III, including A description of the aspects of the environment likely to be significantly affected by the proposed project, including, in particular, population, fauna , flora, soil, water . . . including the architectural and archeological heritage, landscape and the inter-relationship between the above factors . . . .
Art. 6.2 provides: Member States shall ensure that: any request for development consent and any information gathered pursuant to Art. 5 are made available to the public" and that the "public concerned is given the opportunity to express an opinion before the project is initiated.
S. 105A Highways Act 1980 enjoins the Secretary of State to have regard to in particular to current knowledge and methods of assessment.
European Union Directive 85/337 illustrates the ability of the European Union to make progressive reforms in Britain. Theoretically, EIAs safeguard the environment in a changing world fraught with development pressures. European Union Directive 85/337 establishes common principles which the legislation of all member states must implement. These principles of the Directive basically require assessment before planning consent, which may be an issue when a development is likely to have significant direct or indirect environmental effects. The responsibility for providing the necessary information and producing the EIA is a prime responsibility of the developer. Nevertheless, the Commission has complained about British non-compliance concerning seven projects, four of which include the construction of the M3 link near Winchester; the East London River Crossing; the Channel Tunnel Rail Link and Passenger Terminal; and a road link between Hackney, Wick, and the M11.
VII. Functional Environmental Assessment
Difficult decisions in developed countries regarding large construction or natural resources projects are increasingly accompanied by environmental impact statements (EIS) or environmental impact assessments (EIA). Impact assessment "institutionalizes foresight" by encouraging government consultation. This EIA trend stems from the U.S. National Environmental Policy Act (NEPA) of 1969, which anticipates problems and "identifies alternative courses of action to avoid or mitigate adverse impacts."
The EIS document is only the most visible feature of an underlying social process whereby environmental values are identified, articulated, and advocated. While this process does insure that the decision maker will be apprised of at least some of the environmental issues surrounding a project, it also insures that he will treat them with considerably more disdain than they deserve. Environmental interests have managed to acquire a negative image in many circles which may be reinforced by the EIS.
Environmental assessment serves as a focal point between legal rules which often conflict with environmental concerns. But impact assessment is a dynamic process that helps bridge the doctrinal demarcations concerning private-law incidents between individuals and the field of public law occupied by the state.
These demarcations discourage environmental litigation by denying individuals the standing to sue. Denial of locus standi for environmental matters illustrates the functional conflict between substantive and adjectival law. Impact assessment encourages a wide variety of inter-disciplinary information. It widens justiciability by creating a public forum that enables so-called "intervenors" to contribute to the decision-making process. It also alleviates the standing problem by giving a voice to disenfranchised local people who cannot mobilize into an effective interest group.
Several global trends are apparent. EIA adapts to various political systems but works best when implemented by a politically independent authority. EIAs encourage communication and consultation between government agencies. EIAs are increasingly being recognized as part of international law and are utilized by international agencies like the World Bank. It is arguably becoming a norm of customary international law (opinio juris) that nations should engage in effective EIA before taking action that could adversely affect either shared natural resources, another country's environment, or the Earth's commons.
Conversely, opponents who are skeptical of the assessment's usefulness often resist EIA, at least initially. Countries that have adopted EIA tend to use the process for large projects and rarely enjoin courts to oversee its accuracy. The procedures may reflect proponent bias. Responsibility for EIA in federal-type jurisdictions may be divided, which can influence positive or negative biases towards the project.
Environmental impact assessments are usually carried out in a limited time period within a restricted area. It is assumed that reasonable estimates of the large-scale impact on the total area, can be represented by multiplying proportional small-scale effects, such as on a few arctic oil wells, by a factor of 100 or more. But the probability exists that "industry will be on its behavior, so the results will always be on the conservative side." Often these studies miss synergistic effects, the interaction of several components giving new or greater consequences than the sum of their isolated impact. Because expectation interests conflict, the process of environmental regulation is not so much conciliatory as adversary. And because development proposals involve uncertainty, much of an EIS is dominated by the "worst-case" scenario.
The concept . . . [that an impact is any "alteration in the state of the world"] is not straightforward, of course. What it means depends in large measure on beliefs about what the world might look like in the absence of the project. The simplest and most legally and politically defensible belief is that the world would in no way look different than at present. Unfortunately, this view . . . is most unrealistic. There is constant change in human and natural environments all around us, but this endemic change is ordinarily not contemplated by the EIS. Nor does it ordinarily take into account how people or other organizations, will adapt to change.
Governmental impact statements might also contain an "institutional pessimism." In the United States, too much optimism has led to "whitewashing" claims, which sometimes require a court to order the department to return and prepare an "adequate" impact statement. Conversely, agencies might not want the impact statement to look like a "balanced document" just in case environmental critics allege that the balancing was incompetent or prejudicial to environmental interests. An-other problem affecting the EIA process is the asymmetry of information. Objections, can be made on confidentiality and Crown privilege, but not on relevancy.
VIII. Legal Measures "Protecting" the Eurasian Otter
The 1979 Berne Convention for the Protection of European Wildlife and Habitats, Appendix II, places certain species in the "Strictly Protected" category, including otter (Lutra lutra). Britain purportedly implemented and enacted the Berne Convention by passing the 1981 Wildlife and Countryside Act. This statute renders it an offense to deliberately kill or intentionally disturb an otter's shelter, unless no reasonable alternative exists or the survival of the relevant population will not be affected.
Relying on what they understood about the law, environmental opponents to the Skye Bridge complained to the European Commission. The Commission examined the Skye Bridge EIA and report of the public inquiry and, perhaps not surprisingly, said that it:
"gives an account of the consultation of interested bodies and of the public required by Art. 6, (Council Directive 85/337/EEC) and indicates how the results of that consultation and the Environmental Statement itself were taken into account by the competent authority in the procedure for granting development consent, as required by Article 8 of the Directive. On the basis of this examination, the Commission considers that the procedures followed met the requirements of Directive 85/337/EEC . . . . With regard to Decision 82/72/EEC, the Commission ensures compliance with the requirements of the Convention on the Conservation of European Wildlife and their habitats within its area of legal competence. This corresponds to those areas of the Convention which are implemented in Community law by Directive 79/409/EEC on the conservation of wild birds. The information before the Commission does not indicate any breach of those provisions of the Convention.
Community law is not static but rather a "living tree" which incrementally develops and has a nexus within the political arena. The Berne Convention, E.U. Directive 85/337, and Britain's 1981 Wildlife and Countryside Act reflect this incremental development which requires judicial clarification.
This multilateral treaty has been acknowledged by an EC Council resolution. However, the vexing legal question is whether it has adequately been incorporated into the law of the United Kingdom, a "dualist" jurisdiction that allows the government to conclude treaties but requires Parliament's ratification in order to incorporate them into domestic law. Opinion is mixed whether a resolution of the Council of Ministers is sufficient to incorporate a Treaty into Community law. Section 2(1) of the European Communities Act of 1972 provides that all rights, remedies, procedures, and obligations created or arising under the European Community Treaties are to be given legal effect without further enactment in the United Kingdom. The expression "enforceable Community right" refers to the recognition and enforcement in the United Kingdom of directly effective or applicable Community rights and obligations enjoyed by or imposed on Member States or private individuals. It covers rights and obligations created by the Treaties themselves, existing and future Community Regulations which take effect directly in the Member States, and Directives to the extent that they are directly effective or applicable.
If a Community provision is not directly applicable, the United Kingdom does not incorporate it until domestic legislation is enacted pursuant to section 2(2) of the European Communities Act of 1972. Thus, a directly applicable provision--whether a provision of the EEC Treaty, a Regulation or Directive, or Decision made under the Treaty--must be clear and unconditional. It must not need implementation by domestic legislation, nor can it only concern intercommunity relations. Afterwards, it has the required "direct effect" being sufficiently clear and precise to allow a litigant to rely upon it in a court of a Member State. For instance, the European Court gave direct effect to Articles 85 and 86 of the Treaty, which forbid practices to reduce competition or amount to an abuse of a dominant trading position in an unduly fashion.
Community Directives set out the objects to be achieved and leave Member States to choose the method of achieving them. These and other existing and future Community laws, that are not directly effective or applicable, may be given effect pursuant to Section 2(2) of the Act. Typically, the legal instrument to do this is either an Order in Council or a ministerial regulation. Supplementary matters, including references to the European Court of Justice, may be dealt with by subordinate legislative power under section 2(2), which itself is limited pursuant to Schedule 2.
However, "external relations" powers of the European Community refers to the ability of the EC to conclude international treaties and "internal powers to adopt measures in relation to external relations." It is not clear whether agreements that bind the Community but have not been concluded by the Community bind the United Kingdom. Accordingly, the jurisdiction conferred upon courts in order to ensure the uniform interpretation of Community law must accommodate a determination of the scope and effect of the rules of the Berne Convention within the Community, regardless of whether the national court is required to assess the validity of Community measures or the compatibility of national legislative provisions with the commitments binding the Community.
Transposition of a directive into national law does not require that the directive be domestically enacted in the same words. A general legal context could suffice, but only if it ensures the full application of the directive in an adequately clear and precise manner. Furthermore, a planning tribunal, even a government Minister acting as a planning appeal authority, is not an emanation of the State. Consequently, a directive such as Directive 85/337 will not directly bind the tribunal under the principle of vertical direct effect. Thus, a need exists for a faithful transposition of a directive by member states. Faithful transposition is "particularly important where a directive entrusted management of a common heritage to the Member States in their respective territories." The question becomes one of compliance and monitoring of EC directives, which ultimately means action by the Commission or a European Court of Justice.
IX. Intervenors and Litigation Process
In Stevens v. Secretary of State, the litigation spawned at least seven interlocutory hearings at the Court of Session. On November 10, 1992, the appellant unsuccessfully sought an order for suspension ad interim of the construction order. Furthermore, court costs were awarded in favor of the respondent Secretary of State, the government agency in charge of both the project and the hearing process. More recently, the appellant unsuccessfully sought to amend the pleadings on February 11, 1994, in order to include reference to the Berne Convention. The previous solicitor for the appellant had failed to include this multilateral treaty in the pleadings, and the motion to amend pleadings was rejected. The Court of Session considered this an attempt to lodge a completely new appeal, and it remarked that this should have been done within six weeks of the Enquiry decision. Costs of the motion, to be taxed by the Auditor of the Court, were again awarded against the Appellant. Although this effectively might have signaled the end of the litigation in Scotland, the same is not necessarily true in regards to the European Court of Justice.
Although prejudice to the judicial process began in October 1992, work on the bridge continued. The Scottish Office Minister, Lord James Douglas Hamilton, explained that "it was our conclusion on an assessment of the strength of the appeal that we could not justify the potential cost to the tax-payer of halting the work." In effect, ministerial discretion prejudged the outcome of litigation in which it was involved--arguably, an improper exercise of discretion.
As a consequence, "reasonable alternatives" to the Skye-EIA recommendations were never considered by the court. For instance, section 29(1) of the Wildlife and Countryside Act of 1981 (c.69) allows the Secretary of State, after consultation with the Nature Conservancy Council, to make an order prohibiting any operation likely to destroy or damage flora, fauna, or geological or physiological features on designated land. In North Uist Fisheries Ltd. v Secretary of State for Scotland, the court held that "likely" referred to that which was probable rather than that which was merely possible. Accordingly, the probability of environmental damage has not been properly reviewed. In Britain, Canada, and other Commonwealth countries following the adversarial system, court costs are awarded in the discretion of the judge to the winning side. Two main types are used: party and party costs based on a periodically revised, but much cheaper tariff, and solicitor and client costs, a more expensive tariff. A court official "taxes" or reviews the file in a separate hearing, apportions hourly rates for appearances and preparation, and then orders reimbursement of disbursements for items like process serving. In the United States, costs are not normally awarded except where provided for by certain statutes, such as civil rights legislation. Moreover, the contingent-fee system has exponentially increased litigation by allowing an attorney to agree to take a proportion of an award if he wins, but nothing if he loses. Contingent fees coupled with the class action have widened the scope of standing (locus standi) to sue. Although criticized for encouraging high damages awards, the result provides greater access to the courts.
In the United States and Canada, a contingent-fee procedure is allowed subject to the court's power to modify imprudent arrangements, providing that the agreement itself is entered on the court record. But,
The tradition of the English common law, the French and German civil law, and the Roman law all agree that it is unethical for lawyers to accept fees . . . . The British explained that lawyers would no longer make their cases 'with scrupulous fairness and integrity' [if contingency fees were allowed] . . . . America is the only major country that denies to the winner of a lawsuit the right to collect fees from the loser. In other countries, the promise of a fee recoupment from the opponent gives lawyers good reason to take on a solidly meritorious case from even a poor client."
In Scotland, a Speculative Action is allowed under a "no win, no fee" situation pursuant to the Law Reform Misc. Provisions Act of 1990, but this is not a contingentfee procedure. Similarly, no procedure for class action presently exists. Time and resource-intensive agreements between litigants are the only way to select cases as "leading actions, the results of which may be accepted as determining other claims." Furthermore, the locus standi question is often intertwined with the costs issue, and litigants who fail to meet the test for locus standi face paying adversarial costs as well as their own. One potential solution to this financial deterrent involves the public funding of intervenors, who regularly utilize complex socioeconomic and financial data to advocate the position of their respective interest groups.
However, expansion of the right to be heard by intervenors can cost millions of dollars yet fail to yield an efficient result.
CHAPTER 5: CONCLUSION
Although foreign case law is of limited persuasive value, the Canadian case concerning the Bridge to Prince Edward Island enticingly suggests the need for clearly stated environmental assessment guidelines. Madam Justice Reed of the Federal Court Trial Division concluded that "all the assessments which have been done . . . have addressed the bridge project at the concept level . . . . I think the applicant is entitled to a s.12 assessment undertaken with respect to the specific design of the bridge which SCI plans to build before irrevocable decisions are taken."
Much of the impetus behind both assessments and audits is the desire to anticipate, assess and avoid environmental problems. To this end, it makes sense to make decisions about potential impacts and mitigative measures before proceeding. But try as we might, we can never know everything before proceeding. Nor would we want to know everything . . . the costs are simply too high and the likely benefits are too low. It makes sense therefore, to conduct a more limited assessment or audit of potential environmental impacts and a more detailed assessment of real or actual environmental impacts. This philosophy is reflected in the growing demand that environmental assessment include a monitoring component that involves those who must live with the impacts.
Unfortunately, the Skye Bridge case illustrates the failure of European-driven EIA and the recourse by protesters to the political forum. Petitions relating to the EIA-Berne Convention issue were presented to the Committee of Petitions of the European Parliament. As a consequence, the MEP's and the Commission sought more information regarding full compliance of EU Environmental Impact Assessment Directive.
The EIA-approval process should be proportional to the desired end--in this case, construction of the Skye Bridge after a thorough screening. Proportionality is ancillary to the principle of subsidiarity because the latter embodies the goal of "minimum interference." The proportionality test requires that the means must be rationally connected to the objective and not be arbitrary, unfair, or based on irrational considerations. But the EIA process has been broken up to fit the narrower, formalistic, and more mechanistic legal process and the larger conflicting governmental agendas.
Ironically, one of the recommendations for mitigation of the impact of the Skye crossing on Eilean Ban was the potential creation of a museum which "could house an exhibition of Gavin Maxwell material, lighthouse history and equipment, and a record of the development of the crossing project, together with a model of the bridge." Yet the EIA process seems to have been marked by cynicism, if not hypocrisy, concerning environmental assessment objectives. The price of the Skye-EIA report--or 250 glossy version--has contributed to an asymmetry of information and lack of public consultation. The limited nature of the Public Inquiry, the premature choice of the developer, and the failure to conduct a further EIA impugned the process.
The court challenge raises serious questions about the barriers facing environmentally related public-interest litigation. "Given London's reputation for closed government," the "explicit willingness on the part of Government ministers to deceive the public" is not new nor limited to environmental matters. The barriers to public interest litigation involve the legal process which needs to be streamlined as well as the abuse of process by government in the decision-making process.
In particular, the Scottish Office has placed political pressure on the National Trust for Scotland, straddling the boundaries between executive and judicial functions. Indeed, a presumption of shared confidences exists when a substantial relationship exists between the subject matter of prior and present representations.
The rules regarding the award of costs inhibit environmentally related litigation. Therefore, public interest groups litigate less successfully than private individuals. Because EIA is a nascent concept in Britain, judicial clarification is needed concerning its substantive and procedural scope. Although the legal process thwarts a proper appeal concerning the merits of the EIA, reduction of the transaction costs associated with EIA-public interest litigation requires that substantive changes in the law be accommodated by procedural mechanisms that facilitate rather than inhibit the process.