Mitigation and Screening for Environmental Assessment

Abstract

This article considers how, as a matter of law and policy, mitigation measures should be taken into account in determining whether a project will have significant environmental effects and therefore be subject to assessment under the EU Environmental Impact Assessment (EIA) Directive. This is not straightforward: it is problematic to distinguish clearly between an activity and the measures proposed to minimise or mitigate for the adverse consequences of the activity. The issue is a salient one in impact assessment law, but under-explored in the literature and handled with some difficulty by the courts. I argue that there is an unnecessarily and undesirably narrow approach currently taken under the EIA Directive, which could be improved upon by taking a more adaptive approach; alternatively a heightened standard of review of ‘significance’, and within this of the scope for mitigation measures to bring projects beneath the significance threshold, may also be desirable.