Vagueness and Discretion in the Scope of the EIA Directive

Abstract

Article 2(1), the core obligation imposed by the Environmental Impact Assessment Directive, requires that projects ‘likely to have a significant effect on the environment’ are subject to an environmental assessment. The vague term ‘significant effect’ confers a broad discretion in interpreting the scope of the Directive, which the European Commission has identified as problematic. This article examines the role of this discretion in the regulatory framework, in order to contribute to a better understanding of the nature and purpose of Environmental Impact Assessment. The analysis is conducted through the lens of Endicott’s theory on ‘vagueness’ in law, which helps to understand the nature of Article 2(1) discretion. It demonstrates that discretion is integral to the framework rather than a side effect of the formulation of Article 2(1) and that it is valuable because it creates space to consider a vast array of factors in the assessment of ‘significance’ and promotes deliberation on environmental values.