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The Court of Appeal has decided that a transboundary consultation not required for environmental impact assessment (EIA) purposes in relation to a nuclear power station. It considered that a very low probability of an environmental risk could not be said to be ‘likely to have significant effects on the environment’, so did not trigger consultation requirements under the EIA Directive.
An Taisce (The National Trust for Ireland)) v Secretary of State for Energy and Climate Change  EWCA Civ 1111
The National Trust for Ireland (NTI), challenged a decision by the Secretary of State for Energy and Climate Change to grant a development consent order for a new nuclear power station at Hinkley Point C (HPC).
It was common ground that the construction of HPC was a project falling within Annex I to the EIA Directive2011/92/EU. An EIA was required and was carried out, and public consultation was undertaken within the UK, in accordance with arts 4–6 of the EIA Directive.
NTI claimed the Secretary of State had failed to comply with the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009, SI 2009/2263, reg 24 (the EIA Regulations), and/or art 7 of the EIA Directive.
Article 7 provides that where a project is likely to have significant effects on the environment in another member state, the developer member state must:
The Secretary of State did not undertake a transboundary consultation in Ireland, as it considered the HPC project was not ‘likely to have significant effects on the environment in another Member State’.
The Court of Appeal considered that the Secretary of State had acted lawfully in deciding not to undertake a transboundary consultation in Ireland, on the basis of the very low risk of severe nuclear accidents.
The decision centred on the meaning of the phrase ‘likely to have significant effects on the environment’ in the EIA Regulations, and the concept of likelihood for the purposes of EIAs.
The court held that no matter how low the threshold for a likely significant effect on the environment, the Secretary of State’s decision would still be lawful. An Austrian expert report had calculated the probability of a nuclear accident to be as low as one in ten million years of reactor operation. Sullivan LJ admitted that there may be an issue as to exactly how low the probability was, but ‘there is no doubt that the defendant was entitled to describe it in his decision as a 'very low probability’.
The risk of a significant effect on the environment could therefore be excluded on the basis of a very low probability, and a ‘zero probability’ was not required.
The EIA Directive had a much broader scope than the Habitats Directive 92/43/EEC. NTI’s argument—that a significant environmental effect was ‘likely’ if it could not be excluded on the basis of objective evidence—would increase the number of projects falling under the scope of an EIA and the number of ‘likely’ significant effects triggering a consultation.
Sullivan LJ pointed out that ‘in the context of very many, if not most, of the projects listed in the [EIA] Directive, it is difficult to see how it could seriously be contended that a significant effect on the environment which would not be expected to occur more frequently than once in every 10 million years could not properly be excluded from environmental impact assessment on the basis of objective information'.
The probability of a significant environmental effect is a matter for expert determination. Every project has a different probability of an environmental impact and ultimately it will be a question of fact and degree, decided at the Secretary of State and the court’s discretion. It appears that the decision as to whether to undertake a transboundary consultation is not influenced by the magnitude of the potential effect on the environment—as long as the risk is low enough, there is no requirement for such consultation, even if the consequences could be catastrophic (as in the case of a nuclear power station disaster).
The decision can be viewed as a success for the nuclear industry, which is always going to be controversial and vulnerable to challenge.
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