What’s new for the third edition? 

Since the last edition: the climate change aspects of environmental impact assessment (EIA) have come to the fore, by a combination of adjustment to the legislation and a huge uptick in climate change case law; the UK’s withdrawal from the EU has effected significant change to how the courts will approach now-assimilated (EU) EIA legislation and case law; and the Government has committed to a shift from EIA to environmental outcome reporting. Within the climate change arena, some questions on EIA have been highly controversial and high profile, such as how to treat Scope 3 emissions from burning extracted fossils fuels (addressed by the 2024 Supreme Court decision in Finch), and whether ‘inbound’ flight emissions should be counted when considering airport expansion proposals (to date addressed only at first instance, due to the Luton claimants’ unfortunate procedural misstep regarding their appellant’s notice, but which may be addressed in other litigation). All of these are fully addressed in the new edition.

In addition, there have been major changes in approach to EIA of nationally significant infrastructure projects, as a result of the government’s wish to simplify procedures and expedite consents in that area, and there has been a steady flow of case law building on existing principles and in some cases developing them. Again, these are addressed in the new edition.

Are there any trends in this area that practitioners will want to be aware of?

EIA law stands at something of a crossroads. It has been highly effective as a tool to ensure that environmental effects are properly taken into account in decision making, but it has also been subject to much questioning  and criticism (not always entirely justified) as to its lengthy procedures and the sheer volume of environmental information it produces. The period since the last edition has seen no abatement of the flow of claims challenging decisions on EIA grounds, some of which have achieved notable success. Of the various trends, the swell of climate change litigation and associated legal thinking stands out, as it is increasingly pushing boundaries. For example, both lawyers acting for claimants and professional institutions such as the Institute for Environmental and Sustainability Professionals, are seeking to expand the concept of what would traditionally be considered a development’s environmental impacts, to go beyond assessment as against a balance-of-probabilities but-for baseline, and instead to assess against the trajectory required to achieve net-zero (even if that is not, as yet, the but-for baseline).

What areas of law highlighted in the third edition could lead to significant cases over the next few years? 

EIA seems likely to continue to be a fertile ground for legal challenges in respect of controversial and unpopular projects, despite attempts by government and the courts to rein in such challenges. The same is true of habitats protection, and, at a macro level, strategic environmental assessment. Within EIA, the question of screening assessments will continue to generate litigation, as will in some cases the definition of the project and the scoping of the environmental statement. An area to watch for is the extent to which developers seek to rely on the combination of Finch and the Luton first instance decision to justify not assessing impacts that are novel or for which there is no established measure. As the new system of environmental outcome reporting is developed and implemented this will undoubtedly create a rush of cases.

What is the most challenging aspect of your role? 

As authors, we have faced three main challenges with this edition. First, we have had to assimilate and organise very large amounts of case law, which has led to much expanded and reorganised treatment in some chapters. Second, we have had to understand and explain the implications of the complex Brexit legislation, which has been a significant task, given the very substantial role that EU law and ECJ/CJEU jurisprudence have played in this area – again this has involved much new thinking and extended analysis to provide a definitive account. Third, we have had to look ahead to the forthcoming environmental outcomes reporting regime, without a great deal to go on from the Government in that regard.