The SEA Directive
By Paul Homewood
h/t oldbrew
Heathrow Airport
A bit more information about the Appeal Court’s decision to block the Heathrow expansion.
Below is the finding of the Appeal Court’s judgement, which seems to be the crucial factor behind their decision:
[ANPS is the Airports National Policy Statement]
Leaving aside the legal question of whether the ANPS should have specifically considered the Paris Agreement, (the ANPS does go into great detail as to how the Heathrow expansion is compatible with the Climate Change Act), just what is the SEA Directive?
The Strategic Environmental Assessment (SEA) Directive is an EU Directive, which has been in force for several years now. In essence, it sits on top of the system of Environmental Impact Assessments (EIA’s), which are aimed at specific projects.
The SEA Directive is designed to set an overarching procedure for individual projects which stem from it. There is a useful short video here, which explains it.
Wikipedia explain:
The European SEA Directive 2001/42/EC is a European Union Directive in the field of environmental protection, evaluating all those plans and programmes which can produce environmental effects. The environmental assessment procedure will be finalised to indicate, to describe and to evaluate all those effects which can happen on the environment when plans and programmes are implemented and as a consequence all the alternative solutions which can be realised on the basis of objectives and the environmental plans and programmes areas.
The European Commission tells us just how wide the coverage of SEA actually is:
https://ec.europa.eu/environment/eia/sea-legalcontext.htm
There does not seem to be much infrastructure not covered!
And it is not only national projects that must comply, as even local ones also have to follow procedure and prepare plans:
The precedent now set by the Appeal Court will mean that every single project which falls under the SEA Directive must in future take into account the Paris Agreement. And presumably projects already approved can be challenged.
This decision will surely open up a whole new Pandora’s box and allow the likes of Greenpeace to legally challenge any and every project they don’t like in future.
FOOTNOTE
It is worth bearing mind who brought the Heathrow case against the government in the first place.
Apart from five London councils and the Mayor of London, there were four other litigants:
Plan B Earth
Friends of the Earth
WWF-UK
Greenpeace
NOT A LOT OF PEOPLE KNOW THAT 
Apologies for O/T but how good is it to read a piece from (the late) Christopher Booker?
https://www.mailonsunday.co.uk/debate/article-8060751/CHRISTOPHER-BOOKER-tyranny-woke.html
PS: Paul, do you have a ‘Submit a story’ option somewhere in site?
Not as such.
You can email it to me if you want, or simply post the link
I agree that Heathrow’s impact on climate change should be the least of our worries. The major concern should be the NO2 and particulate pollution from the jet exhausts. These far outweigh those from vehicular traffic in the vicinity, and they are spread directly into Central London on the prevailing wind. For this reason – and what follows – it is also worth asking why anybody would develop a major airport immediately upwind of a densely-populated city. Since 1948 there have been 14 crashes at or in the immediate vicinity of Heathrow, with (so far) no fatalities on the ground. As one of the busiest airports in the world it must also be a prime target for terrorist activity, since with the prevailing westerly wind most approaches are over Central London. And of course the Lockerbie airliner had taken off from Heathrow. There have also been at least 11 instances of stowaways falling from aircraft over Central London, with no fatalities on the ground (again, so far). At least the approach path for the third runway will be over the Houses of Parliament and the Civil Aviation Authority’s HQ!
The judgment, as I guessed yesterday, is based on the shambles caused by the Paris Accord. Whether or not the Accord is binding or not the UK government has treated it as such and made its own binding commitments under it. That being the case (and in the light of the SEA requirements) the government is in breach of its own obligations with regard to the ANPS.
It’s a fine point of law which could keep m’learned friends in deep debate for months and which is typical of the mess that environmental legislation can lead to. Boris is not planning to appeal this to the SC because he’s quite happy with the outcome but somebody needs to because the law on this is now desperately in need of clarification or, as Paul says, virtually any infrastructure project — from runways to HS2 and from fracking to new power stations — can come under legal challenge from the enviro-nuts.
(And those arguing for the closest possible alignment with the EU post-transition should be very careful what they wish for. This case alone poses questions about how important a trade deal is compared with being subjected in perpetuity to the sort of onerous nit-picking in this Directive — and others!)
“(And those arguing for the closest possible alignment with the EU post-transition should be very careful what they wish for. This case alone poses questions about how important a trade deal is compared with being subjected in perpetuity to the sort of onerous nit-picking in this Directive — and others!)”
Really, how?
The SEA does not make a decision, the assessment simply has to be carried out. In the same way as environmental impact assessments have been carried out. Where the assessment highlights issues, The person(s) or group carrying out can then decide the basis of the study if there are mitigation measures that can be put in place to address the issue, or if mitigation is impossible. The courts have decided that the basis of the study was incorrect, and this is purely a UK issue.
Tjey could have made exactly the same comment regarding an EIA
Isnt Heathrow Airport owners the counter party in this , not the government .
Yes, the Judgement gives Heathrow Airport Ltd as well as the Secretary of State for Transport as defendants
No, the NPS was the government’s legal decision on Heathrow – it was passed by a vote in parliament.
Heathrow us seeking leave to appeal from the Supreme Court however.
If the judgment stands, or if an appeal fails, the position will be that the Paris Agreement must be considered by the relevant decision maker, if SEA is applicable.
The court found in this case that the wrong advice was given to the government i.e. that the Paris Agreement MUST NOT be considered. That blunder led to the current fiasco.
Now we have left the EU, how long should we tolerate EU laws over-riding UK Law? Can the SEA be repealed? Or is it all to do with Maastricht enabling act (?) that allowed EU law to be adopted in the UK? Does Maastricht – can Maastricht – be repealed?
All EU law applies until we exit the transition period at the end of this year. After that it depends on what is agreed for our future relationship and what is in our current legislation. Directives are usually enacted by secondary legislation – statutory instruments or regulations as they are known. SIs are not debated in parliament and are created as a matter of routine with no scrutiny. A lot of SIs are made every year but the majority are for mundane things such as motorway closures, air shows, etc. In my area, traffic legislation, decades back what are now Traffic Management (or Regulation) Orders that do things like introduce yellow lines were SIs.
To remove EU derived legislation would require the regulations to be repealed – which if they are made so easily could be a formality. It is interesting to consider had we chosen a common sense approach to leaving the EU and taken the EEA-Efta route whether this directive and the habitats directive would apply. Dr North has shown that the landfill directive – the cause of our flytipping problem – IS part of the Single Market legislation. But of course there would have been Article 112 by which you can suspend the application of parts of the Single Market legislation – just as Liechtenstein has done for free movement and Iceland for movement of capital.
Something that the late Booker and Dr North have pointed out in the past is the gold-plating by our civil servants when passing a directive into UK law which may explain why other EU countries can get on with major projects.
Relative to that are the twin pillars of ‘proportionality’ and ‘subsidiarity’, the principle that Directives/laws should only be applied to the extent necessary to fulfil their purpose and as far as possible decisions should be taken as close to the people as is compatible with maintaining the level playing field.
I have lost an article from around 10 years ago by Booker which arose from a letter from some small businessman about a Directive (to do with storage of fuel, if I recall) which was about to put him out of business because of the demands it placed on him. It transpired that the Directive had never been intended to apply to SMEs — as was made clear in the Directive itself! Which hadn’t stopped the civil servants — and it had to have been the civil servants from having the relevant minister sign off on it in full.
Whatever the arguments for and against EU membership there is no doubt that we have frequently been our own worst enemy and the blame can be equally shared between the civil servants who were never keen on the EEC and the politicians who put far too much trust in them.
The current battle between the Home Secretary is just one more skirmish in this war with this government at last asserting itself which no administration since Thatcher has done.
Thanks, Gerry.
But the problem is not the EU law and getting out does nothing to help overturn this decision. The same judgement can be applied to any EIA if using pre SEA legislation. What the courts have pointed out is the basis of the SEA missed the Paris accords.
From reading what has already been set down as Comments on this posting m’learned friends are going to have little better to offer.
No mention yet of the obvious distinction between the consideration that must be given to new schemes within the scope of Single Market environmental legislation and the enlargement of existing schemes.
The “four other litigants ” referred to by Paul must be working on a plan to force Heathrow to close as this current episode seems unlikely to be the limit of their intention. We have learnt not to under estimate the conceit of these environmental pressure groups.
So how difficult would it be to knock out an SEA, staple it to the application and re-submit?
I suppose it would have to go back through Parliament again, (then wait for Greenpeace to challenge again!)
Sorry if this is already well-known in the UK, but I recommed reading the comment by Ben Pile in Spiked, on the Heathrow decision:
“The mess that we now see is not accidental. It is design. The design was obvious in Friends of the Earth’s original authorship of the Climate Change Act. It was explicit in David Miliband’s and other ministers’ statements on climate-change policy. It was transparent in the formulation of the cross-party consensus on climate change. And it was clear in the framing of any criticism of these policies as ‘denialism’. The design has been to bring about a transformation of the relationship between individuals and the state; to take power away from democratic political institutions.”
https://www.spiked-online.com/2020/02/28/the-heathrow-decision-is-an-assault-on-democracy/
“This decision will surely open up a whole new Pandora’s box”
The day before the Heathrow decision, Warwick District Council voted to reset the district’s Council Tax contribution in order to fund a Climate Emergency Action Programme. According to the TaxPayers’ Alliance (I saw this story in their newsletter), they are intending to apply the extra amount anyway, and only refund it if they don’t get their way in a referendum!
https://www.warwickdc.gov.uk/news/article/376/warwick_district_council_gives_green_light_for_climate_emergency_referendum
https://mailchi.mp/df36d7a0bd38/weekly-bulletin?e=52aad4b02a
https://www.warwickdc.gov.uk/downloads/file/2428/cc03_-_warwick_district_council_low_carbon_action_plan_-_february_2012
You have to go to this page and download the plan. I haven’t read it all but was struck by their goal of reducing or doing away with fuel poverty and reducing the cost of energy. Well good luck to that. It’ll be interesting to see what the outcome of the referendum will be. You can bet your life that Greenpeace etc will be piling resources in to the campaign for a yes vote. All the propaganda will be one way of course. I might try to monitor the public debate on local media and add a bit if I can.
If the ‘SEA Directive applies to a wide range of public plans and programmes (e.g. on land use, energy, etc),’
and ‘is mandatory for plans/programmes which are:
prepared for forestry, fisheries, energy, ……. or land use’ and ‘which set the framework for future development consent of projects listed in the EIA Directive.’
OR
‘have been determined to require an assessment under the Habitats Directive.’
why can’t this be used in the attempts to stop the proliferation of the green (but painted white) monstrosities being planted across our land and the surrounding seas to the detriment of forests, open spaces. wildlife (on the land, in the sky and under the sea), the stability of the grid and the mental and physical health of those who have to live with them in their neighbourhood.
Or is this another example of the EU and its acolytes enforcing laws against those they don’t like, and turning a blind eye to their friends running the renewable energy scams.
Just asking !
I never liked using Heathrow airport, I would preferably fly from local airport to another Europe Hub.
Harrabin displays his lack of knowledge of how the air business works:
He has no concept that Schiphol isn’t a base for long haul international flights by UK airlines. Or that KLM already has far more connecting routes into the UK from Schiphol than any other airline.
I live local to this, the actual issue is no party has control so a takeover by Greens of the District Council has happened sort of by accident, courtesy of of liberals and labour.
The referendum will cost £300k, to be paid by taxpayer win or lose. If it fails then there will be £300k less to spend on those who need it most.
My guess is that voting for an extra £100+ per year on your council tax will not be that popular, so those who cannot usually be bothered will turn out and it will get voted down.
The actual plan you reference is 8 years old and is a bit thin on reality and numbers.
This Council is a bit off-beam, for example it now sends all its recycling to a central automatic sorting centre and waste to energy incinerator. So there is no reason any more to sort cardboard, paper, plastic, glass the machine does it all so much better. But this council voted to still require residents to sort their recycling, because it made them, the council, feel better! You could not make it up!
The trouble with Council tax is that everybody gets to vote on the basis of what they are promised from it, but a much smaller cohort have to pay for it. It’s a social grabbers’ charter, and now an environmentalist charter. Why, oh why, did Maggie get browbeaten into dropping the Community Charge (“Poll Tax”) ?- a much fairer arrangement
J Batt you are right about the SEA Directive and wind farms, the reason being that the EU and its Member States broke the law in this regard and continue to be serial offenders.
A bit of background, the SEA legislation has its origins with the United Nations Economic Commission in Europe (UNECE), which sits in Geneva. An SEA with its associated public participation, completed prior to the adoption of the plant / programme helps inform the subsequent plan / programme. In the same manner an EIA helps inform the decision on the subsequent project:
Click to access EIA_rulings_web.pdf
See page 18 above: “…that rule prescribes an assessment of the environmental impact of a public or private project, but does not lay down the substantive rules in relation to the balancing of the environmental effects with other factors or prohibit the completion of projects which are liable to have negative effects on the environment”.
The UNECE Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters is an integral part of EU legal order and takes priority over secondary legislation, such as Directives and Regulations. The UK has ratified it, as have the other Member States, Ireland being the last to do so (we don’t believe in democracy in our so called Republic). Article 7 of the Convention is about public participation on plans and programmes related to the environment, it is broader in scope than the SEA Directive, but less specific in that the ‘necessary information’ has to be provided, rather than a specifically defined detailed ‘environmental report’.
As Ireland didn’t recognise the access to justice provisions of the Aarhus Convention and associated EU law, my only option back in 2010, as I would have been fleeced for costs in the Irish courts, was to take a compliance case against the EU at UNECE. This Communication CC/54 then lead to a decision of non-compliance in International Law being adopted against the EU at the 2014 UNECE Meeting of the Parties (47 countries). This Decision V/9g required in relation to the 2010 National Renewable Energy Action Plans adopted under Directive 2009/28/EC – 20% renewable energy by 2020:
Click to access Decision_V_9g_on_compliance_by_the_European_Union.pdf
“….that it adopt a proper regulatory framework and/or clear instructions for implementing article 7 of the Convention with respect to the adoption of NREAPs. This would entail that the Party concerned ensure that the arrangements for public participation in its member States are transparent and fair and that within those arrangements the necessary information is provided to the public. In addition, such a regulatory framework and/or clear instructions must ensure that the requirements of article 6, paragraphs 3, 4 and 8, of the Convention are met, including reasonable time frames, allowing sufficient time for informing the public and for the public to prepare and participate effectively, allowing for early public participation when all options are open, and ensuring that due account is taken of the outcome of the public participation. Moreover, the Party concerned must adapt the manner in which it evaluates NREAPs accordingly;”
A similar UNECE Communication CC/68 led to a similar ruling against the UK in Decision V/9n.
Neither have complied with these. Indeed the EU has been intransigent in refusing to co-operate with UNECE on this issue, which is now since 2017 falling under the scope of ACCC/M/2017/3, which includes its refusal to provide its citizens to the Court of Justice of the European Union (CJEU) to challenge such breaches of its environmental law. The UNECE Compliance Committee produced their ‘second progress review’ in these compliance proceddings this week, which are very damming:
https://www.unece.org/?id=48110
62. The Committee reiterates its serious concern that, despite having been explicitly invited to do so in the Committee’s first progress review, the Party concerned in its second progress report has still not yet replied to the questions put to it in the Committee’s second progress review on decision V/9g in the last intersessional period. The Committee regrets the lack of engagement by the Party concerned on this issue.
63. However, since a proper regulatory framework or clear instructions for implementing article 7 with respect to the NREAPs was never, and upon the NECPs’ supersession of the NECPs, now never will be, put in place by the Party concerned, there will remain no proper framework or clear instructions for any public participation on the NREAPs to be evaluated against.”
The compliance proceedings have now moved on to the manner in which under the new Regulation on the Energy Union 2019/1999 the National Energy and Climate Plans (NECPs) were adopted, again without any public participation when all options were open. Incidentally the first paragraph of 62 there referring to the manner in which the EU refused to answer the direct questions UNECE put to it in relation to what enforcement action was being taken against Member States, which adopted the NREAPs in an illegal manner.
The rule of law may apply to EU citizens, but it most certainly does not apply to the EU and its Member States, as this whole Green agenda is being implemented in breach of it. Incidentally I am in Brussels tomorrow pm with a number of representatives from around EU campaigning against these wind farms blighting the countryside. We are meeting a senior official in DG Environment and spelling it out, i.e. there are a lot more Court cases coming.
Good luck Pat. what a twisted destructive tangle all this interferring rulemaking has become. time for a bonfire of the lot. Which political party supports freedom now? any?
I wonder if this judgement and the true implications of it will unleash the dreaded law of unintended consequences? Dreaded that is for the Green Blob.
If Greens insist on extending their agitprop to full-on environmental lawfare the government may find it has just two choices.
1. Accept no significant new infrastructure can ever be built. (and good luck getting re-elected on the back of that, Conservatives.)
2. It can repeal the Climate Change Act and get on with whatever new-builds it wants to.
Given that the Greens are as thick as two short planks I expect them to go for a no-holds barred full-on anti-development strategy.
In which case I know which option I’d be choosing.
This had nothing whatsoever to do with the CCA. It’s a judicial review of the processes that were followed, not the content.
Provided the government had followed the processes that the government said it would follow, this appeal would have been rejected.
The court had no power to determine whether Heathriw expansion was possible under Paris. All it could determine was whether the government should have taken account of Paris in its approval of the NPS.
If the NPS procedure said the NPS should have been printed 1,000 times but it was only printed 999 times, the court would have ruled the NPS unlawful. It wouldn’t matter what the NPS said.
Want to have an inkling of an idea of how this pans out? Have a wee look at Canada, more specifically Alberta! There’s a fine example of 1984 all based on the premise that good old CO2 is a toxic gas – ah well, I have stopped looking at AutoTrader and have now subcribed to Horse Trader… a wonderful read I think you’ll find!!!!
This still misses the point. This was a judicial review and as such made no comment on whether the government had met its climate obligations or whether Heathriw would do so either. It simply said the government hadn’t followed the right procedure in determining whether it Heathrow expansion would. That’s all a JR can do. It sets no precedent in regard to whether big projects meet climate legislation or climate targets or anything. This was strictly a legal technicality.p
Moreover, an NPS was used in the first place because that allows the government to use “national” planning consent rather than local planning consent – otherwise Hillingdon council was in charge and would reject expansion. The procedure set out to pass the NPS said that “government policy” must be taken into account as well as legislation. Had it not said that, the JR would not have found in favour of the Green groups. In fact the DfT had legal advice that it did not need to reference Paris in the NPS. It could easily have done so, but choose not to. That is the error that led to this judgement.
Once again, the challenge to climate targets comes at the Planning Consent stage, not at the level of an NPS.
To be clear, the judgment found that the government, in not taking account of the Paris Treaty in writing the ANPS, breached both the Planning Act (paras 222-233), and the SEA directive as transponsed into English law as the SEA Regulations (paras 242-247). In each case, the Paris Treaty, although not UK law, lay in the class of things that the SoS was required to take into account, according to the court’s reading of the law.
As @Phoenix44 says, the SoS had taken legal advice that he did not have to take it into account, as it was not English law, a double mistake according to the judgment.
@Phoenix44 correctly says, that this is a procedural judgment. Such judgments might in principle be resolved in an entirely procedural way that changes nothing in practice. According to what the SoS said to the court, the SoS believes that not to be the case on this occasion.
Para 221 of the judgment reads:
“…the Secretary of State accepts that, if he erred in law in failing to take into account the Paris Agreement before designating the ANPS, it cannot be said that it is highly likely that the outcome would have been substantially the same in any event.”
The SoS did take account of the (then) law to reduce carbon emissions by 80% by 2050. The government argued that an 80% reduction in CO2 allowed aviation to continue by still burning hydrocarbons, an easier argument than saying that aviation would substantially decarbonise. But since then, it has got even harder. The goverment has passed a law obliging carbon emission reductions of 100% by 2050. I think if the decision has to be retaken, they can’t go back to the time before this law. Now, the ANPS will have to take account of both the new law and the Paris Treaty, and I think the new law is stronger than Paris.
I’m not convinced that this judgment is necessarily detrimental to road programs. I think the government will argue that road schemes are still needed as its judgment is that road traffic can continue and continue to grow in a 100% decarbonisation world. Probably the court would say that is the kind of judgment the government is entitled to make, much as many might disagree or dislike it.