Kingsland Conference II:
The Strategic Environmental Assessment Directive: A Plan for Success?
London, 14 February 2014
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Strategic Environmental Assessment: the Republic of Ireland Experience
Áine Ryall
Faculty of Law, University College Cork
Paper Overview
A legislative framework governing Strategic Environmental Assessment (SEA) has been in
place in Ireland since July 2004. Ten years on, a critical analysis of experience in practice
indicates a range of shortcomings in implementation and weak provision for oversight and
enforcement. In many ways, the SEA story to date confirms wider, deeply rooted problems
with environmental governance in Ireland including: fragmented structures and processes;
lack of political will to integrate environmental considerations at all levels of decisionmaking; and (still) limited access to justice to enforce environmental rights and obligations in
an affordable and timely manner. It is well-known that Ireland has long struggled to deliver
effective implementation and enforcement of European Union (EU) environmental law at
local level. The SEA experience provides an interesting case study of the challenges that
must be tackled in order to integrate EU obligations into the national system and to
strengthen local enforcement mechanisms.
Deficiencies in the SEA directive, in particular the restrictive definition of what constitutes a
‘plan’ and a ‘programme’, and the general manner in which many obligations are articulated,
compromise the directive’s effectiveness as a regulatory tool. Moreover, the public is more
inclined to engage actively in decision-making processes at ‘project’ level, when specific
development proposals are on the horizon. It is clear that there is limited awareness of SEA
among the public and that the Birds and Habitats directives and, of course, the Environmental
Impact Assessment (EIA) directive are invoked far more frequently in practice. When
compared with the SEA directive, these directives have a sharper edge in terms of their
impact and enforceability.
It is not particularly surprising, therefore, to find that SEA related matters have only been
considered in three High Court decisions to date. Two of these decisions turned on the
definition of ‘plans and programmes’, while the third concerned the SEA decision-making
process, in particular the duty to give reasons for adopting a plan in a particular form. A
fourth case, challenging the legality of the National Renewable Energy Action Plan (NREAP)
is currently pending before the High Court.
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A review of the Environmental Protection Agency (EPA) published in May 2011 raised
concerns inter alia about shortcomings in SEA implementation.1 The Review Group
recommended that consideration should be given to assigning a wider statutory role to the
EPA with regard to SEA in order to strengthen practical implementation in a more uniform
way.
In 2012, the EPA published the results of a review of the effectiveness of SEA in Ireland.
Overall, the SEA Review concluded, optimistically, that:
SEA is fulfilling its role and is providing a vital tool for environmental protection in
Ireland. SEA ensures that environmental considerations are taken into account in
policy development and implementation, and is raising the profile of environmental
issues in decision-making at plan level among those sectors applying SEA.2
However, it also identified a number of significant problems with SEA implementation. The
key findings included: failure to screen some sectoral plans systematically; failure to
document adequately scoping responses and how those responses are addressed; lack of a
central database of plans with the result that it is difficult to identify what other plans exist;
significant base line data gaps that need to be addressed at national level; inadequate
consideration of alternatives; inadequate treatment of certain categories of environmental
effects and the interrelationship between effects; mitigation measures not always taken into
account in the plan or documented poorly; limited public involvement in SEA;
Environmental Reports do not always focus on key issues; environmental effects of
amendments to plans are generally poorly considered; some SEA Statements are either not
produced at all or are of poor quality; SEA-related monitoring of the environmental effects of
plans is seldom undertaken; and SEA and Appropriate Assessment could be integrated more
effectively.
The SEA Review made a series of recommendations to improve implementation, with
particular emphasis on strengthening governance, providing detailed guidance on various
aspects of SEA, ensuring authorities have adequate resources to fulfil their obligations and
improving training and awareness. Following the publication of the SEA Review in 2012, a
National SEA (Environmental Authority) Technical Forum was established. An SEA Review
Action Plan 2012-2016 was prepared to deliver the recommendations made in the Review
and to improve the effectiveness of SEA.
Notwithstanding these reviews and the various recommendations presented, SEA remains
relatively underdeveloped in Ireland. If SEA obligations are to be taken seriously, then
robust governance and oversight mechanisms must be put in place. Unless there are tangible
consequences where public authorities fail to fulfil legal obligations, it is highly unlikely that
1
Environmental Protection Agency Review Group, A Review of the Environmental
Protection Agency (May 2011) pp 44-45.
2
Environmental Protection Agency, Review of Effectiveness of SEA in Ireland: Key Findings
and Recommendations (2012) p 62.
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SEA will ever be integrated successfully into plan-making processes. The SEA Review
suggested that ‘an independent body’ could review SEAs, decide whether or not they are
acceptable and examine whether significant effects are being identified and mitigated. There
is merit in this proposal, but the lack of detail is disappointing.
The problem in practice is that there is a strong tendency among certain plan-makers to
regard SEA as a potentially expensive and time-consuming constraint on development.
Moreover, the distinction between EIA and SEA is not always appreciated fully. As a result,
SEA is treated by some plan-makers as little more than a ‘box-ticking’ exercise. At a time
when public authorities’ resources are stretched to the limit, it is difficult for environmental
concerns to gain any real traction. Political leadership at the highest level is needed to drive
SEA implementation.
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