An Taisce (The National Trust for Ireland), R (on the Application of) v The Secretary of State for Energy and Climate Change & Anor

Under article 7(1) of the EIA Directive, a project is likely to have significant environmental effects where there is a real risk of those effects. Likelihood does not mean either more probable than not or that every possibility must be included unless zero risk is demonstrated.

The magnitude and complexity of the potential harm must be assessed with its probability. The greater the possible harm, the lower the probability that may justify assessment. A risk may nevertheless be so remote that it is properly excluded.

A decision-maker may rely on a stringent regulatory regime to address remaining design details and uncertainties. It must make an informed, case-specific judgment that the outstanding matters can and will be controlled through that regime.

The Secretary of State granted development consent for a European pressurised reactor nuclear power station at Hinkley Point. An environmental impact assessment and domestic consultation had been undertaken, but the Secretary of State did not initiate transboundary consultation with the Republic of Ireland under article 7 of the EIA Directive. He considered that a severe accident capable of causing transboundary effects was extraordinarily unlikely.

Patterson J refused permission for judicial review following a rolled-up hearing: [2013] EWHC 4161 (Admin). Sullivan LJ subsequently granted permission and retained the application in the Court of Appeal.

The questions were whether article 7 required consultation whenever a significant effect could not be excluded with absolute certainty, and whether the Secretary of State could rely on the nuclear regulatory regime to address gaps and future design matters.

1. The application for judicial review was dismissed. Sullivan LJ delivered the judgment, with which Gloster and Longmore LJJ agreed. A reference to the Court of Justice of the European Union was unnecessary.

2. The expression “likely to have significant effects on the environment” must bear a consistent meaning throughout the EIA Directive. It does not mean more probable than not. The appropriate standard is a real risk of significant effects. That standard incorporates the precautionary principle in the context of the Directive: paras [10]–[23].

3. The stricter screening approach developed under article 6(3) of the Habitats Directive could not simply be transferred to the EIA Directive. The Habitats regime protects designated sites and ordinarily prevents authorisation while reasonable scientific doubt remains. The EIA regime has a wider scope and requires assessment and consultation, but does not prescribe whether a project must ultimately be permitted or refused. Treating every objectively unexcluded possibility as likely would also impair effective environmental decision-making by obscuring material risks among remote possibilities: paras [16]–[23].

4. In any event, the claimant's interpretation amounted to an impermissible zero-risk standard. Even under the Habitats approach, certainty means the absence of reasonable scientific doubt, not proof that no conceivable risk remains. A competent authority may conclude that a risk is so remote that a significant effect is not likely. The severity of the possible harm and its probability must be considered together. Greater potential harm warrants assessment at a lower probability, but the decision-maker retains an area of judgment: paras [35]–[45].

5. The Secretary of State was entitled to treat the severe-accident risk as sufficiently remote. The estimates before him placed it at an exceptionally low level. There was no challenge to the rationality of his assessment of that evidence: paras [36]–[43], [54].

6. A planning decision-maker may rely on a stringent specialist regulatory regime when assessing incomplete designs and residual uncertainty. Major projects need not be designed to the last detail before environmental assessment. The authority must make an informed, case-specific judgment that remaining matters can and will be satisfactorily addressed by the regulator. The established nuclear licensing and assessment regime reasonably supported that conclusion here: paras [46]–[54].

1. Court of Appeal (Civil Division): The application for judicial review was retained in the Court of Appeal and dismissed: [2014] EWCA Civ 1111.
2. High Court, Administrative Court: Patterson J refused permission for judicial review following a rolled-up hearing: [2013] EWHC 4161 (Admin).