Review and Revision of Environmental Permits

1
Review and Revision of Environmental Permits

• Prof. Colin T. Reid,
• University of Dundee
• April 2006

2
Contrasts

• Hydro-electricity
• no provision for review or revision
• Mineral permissions
• problem in 1970s of old permissions without
  environmental controls
• review every 15 years
• opportunity to rewrite terms

3
Practical importance

• Change to permit can force activity to stop or
  make it uneconomic
• Many activities have high capital costs and rely
  on recovery over prolonged period of operation
• Affects public sector infrastructure through
  Private Finance Initiative etc.

4
Perspectives

• Regulator
• Able to impose modern standards
• Operators
• Business vulnerable and seeks certainty and
  protection
• Environmentalists
• Make sure regulator does not relax standards

5
Review

• Duty to review
• fixed periods
• periodically or from time to time
• specify trigger events

6
Revision

• Usually just very broad power
• Limits
• Grounds
• Timing
• Compensation
• General rules of administrative law

7
Limits on Revision

• Can specify limited grounds on which changes can
  be made (rare)
• Specify time period during which no changes can
  be made
• so many years after grant or last change
• but usually makes changes harder, not impossible

8
Compensation

• Compensate operators for losses caused by changes
  to permits
• Who should bear cost?
• operators doing everything asked of them
• changes in public interest
• cost of compensation may become consideration in
  decision-making
• if change embodied in general legislation, rather
  than permit conditions, no compensation

9
General Administrative Law

• Cannot make irrational decisions
• Proportionality?
• Protection for legitimate expectations
• Procedural safeguards and possibly closer
  scrutiny
• Protection for human rights
• Permit may be property
• Rights not absolute

10
Protecting the Environment

• Procedural requirements
• same as for initial grant of permit
• Environmental Impact Assessment
• required for variations as well as new projects
• Danger of scope for agreed modifications
• Need to ensure outcomes specified in other
  environmental laws

11
Conclusion

• Number of mechanisms available
• But used in haphazard and inconsistent way
• Need to think about review and revision when
  statutory regime is planned
• Role for policy statements to give some greater
  comfort to operators without tying hands of
  regulator