Article 5(2) of the EIA Directive:
Where requested by the developer, the competent authority, taking into account the information provided by the developer in particular on the specific characteristics of the project, including its location and technical capacity, and its likely impact on the environment, shall issue an opinion on the scope and level of detail of the information to be included by the developer in the environmental impact assessment report in accordance with paragraph 1 of this Article. The competent authority shall consult the authorities referred to in Article 6(1) before it gives its opinion.
Member States may also require the competent authorities to give an opinion as referred to in the first subparagraph, irrespective of whether the developer so requests.
The so-called “scoping” is a part of the EIA process that provides an early opportunity both for the developer and the competent authority to define the key environmental impacts and issues of concern in the EIA procedure, as well as the nature and extent of information required to make an informed decision about the project. This step involves the assessment and the determination of the amount of information and analysis that the authorities will need and therefore provides a higher level of certainty for the developer at an early stage of the EIA process. In other words, scoping defines the EIA report’s content and ensures that the environmental assessment is focused on the most significant effects of the project on the factors listed in Article 3 of the Directive, and that time and money are not spent on unnecessary examinations. It also reduces the likelihood that competent authorities will need to request additional information from the developers after the environmental report has been prepared and submitted for development consent. Therefore, generally speaking, scoping can be considered as a “risk reduction tool” in the EIA process.
The process of scoping
Source: European Commission Scoping Guidance, 2017
It has to be pointed out that Articles 5(1) and 5(2) of the EIA Directive do not require mandatory scoping from the transposing national legislation, voluntary scoping is the minimum, i.e. to allow the developer to request a scoping opinion from the competent authority upon its own motion. While it is not mandatory for the developer to request that the Competent Authority issue an opinion on the scope and level of detail of the information to be included in the EIA Report, this is strongly encouraged as it may bring several benefits.
However, it also needs to be pointed out that once scoping is carried out (either on a voluntary or mandatory basis) and a scoping opinion is delivered, Article 5(1) of the EIA Directive requires that in such a case the environmental impact assessment report shall be based on that opinion. Furthermore, Article 5(1) requires the inclusion of the information that may reasonably be required for reaching a reasoned conclusion on the significant effects of the project on the environment, taking into account current knowledge and methods of assessment.
In 2017 the European Commission also published a guidance document on scoping which can, similar to the Screening Guidance, serve as a very useful source of information for all legal professionals dealing with environmental impact assessments. (More information: http://ec.europa.eu/environment/eia/pdf/EIA_guidance_Scoping_final.pdf)
Developed by the Academy of European Law (ERA)