Environmental Outcomes Reports - An Update

Summary

• In March 2023, the previous Government consulted on how a proposed new system of environmental assessment (Environmental Outcomes Reports or EORs) could work as a replacement to the existing Strategic Environmental Assessment/Environmental Impact Assessment (SEA/EIA) regimes (here).
• The consultation ran for 12 weeks until June 2023. We discussed our thoughts on that consultation and its implications in a post at the time here.
• Almost 3 years later, the current Government have published their response to that consultation (here), together with a "roadmap to reform" which confirms the intention to bring forward EOR to replace the extant SEA/EIA regimes (for both TCPA/DCO schemes) by the end of 2027 (here).
• The announcement was provided alongside the Government's response to the Nuclear Regulatory Review 2025  (or the Fingleton Report as it's colloquially known) which made a series of recommendations regarding how to strengthen the UK's regulatory system for nuclear energy, including proposed streamlines to the EIA/SEA regimes (here). 

Analysis

The consultation response and accompanying roadmap are still light on the practical detail of the the proposed changes, with the bulk of the content simply summarising key themes from the 278 responses to the consultation and restating the Government's underlying intention behind the proposals – to streamline the assessment process, deliver better environmental outcomes and speed up delivery of development: "Reform of the system presents an opportunity to maximise win-wins for development and nature…".

In respect of those laudable aims, we discussed in our previous article (here) from the time of the consultation our scepticism about the ability of the proposed changes to meaningfully streamline the EIA/SEA process in the manner suggested, as well as raising concerns about the potential impact to project delivery of enhanced expectations on monitoring and mitigation unless care was taken. 

In the absence of any significant further detail from the Government on the practical implementation of EORs, our views/concerns have not changed. 

We remain particularly concerned about the implications of any potential mandated 'adaptive management' for development and the summary of consultation responses in respect of those elements of the consultation (questions 12 to 18) highlight some of the potential issues in this respect. We'll defer substantive comment until the relevant operative detail is published, but would simply observe in the meantime (and as highlighted in some of the consultation responses) that it would be unfortunate if the practical effect of the changes were:

• To place more reporting/monitoring burden on already-resource constrained regulators/authorities,
• at the likely further cost to developers who the Government are trying to incentivise to bring forward schemes to deliver growth, and which 
• has the implication of requiring additional/uncertain levels of further mitigation/cost that would surely place further risk premium on any project financing. 

Any of these outcomes, let alone all, would be counter to the underlying intention of the reforms and the Government's wider stated pro-growth agenda, but are readily foreseeable if care is not taken as EORs move from concept to application. In particular, we would continue to advocate that the purpose of any monitoring should not be with a view to scrutinising or penalising (financially or otherwise) the development in question (such uncertainty/risk would be very challenging from an investment perspective and in turn potentially imperil project viability), but rather to improve understanding of the impacts of development to better inform EORs for future schemes. We pointed to valuable monitoring being carried out around bird collision risk in offshore wind in our original article and further recent studies in the same field reinforce that point (here). 

In terms of the next stages, the roadmap identifies three phases of work necessary to develop and deliver EORs and elaborates on what is proposed in their respect:

• Setting outcomes – this will be achieved through collaboration with a variety of stakeholders, the establishment of expert working groups and ultimately public consultation on the draft regulations relating to outcomes and procedures. It is also confirmed that Biodiversity Net Gain, Habitats Regulations Assessment (HRA) and Environmental Delivery Plans will sit outside the scope of EORs. The interface between a revised EOR regime and the current HRA regime is something that will require some thought. 
• Reforming the process – in parallel to the work on the outcomes, the Government will also be developing the structures and procedures that will inform the EOR practice. Again, there's a theme of collaboration, with a suggestion of guidance being produced as well as template documents. 
• Transition and testing period  – the Government (mercifully) recognises that there may be some teething issues which require ironing out before any revised system is imposed. No specific commitments are made in terms of transition periods or equivalents, other than to note (unsurprisingly) that until a new system is implemented, the existing system/legislation will remain in effect. A series of pilot plans and projects are anticipated to stress test the system.

The proposals continue to be limited in their potential effect to England, but the roadmap notes the intention to "work closely with the devolved governments as they consider reforms in areas of devolved competence, to maximise the impact of reform." There is obvious scope for potential complexity, if not confusion, for cross-border projects which may find themselves subject to different EIA regimes. 

Overall, whilst these updates from Government are helpful in confirming EORs remain on the agenda and by providing an overview of what's to come next (particularly given the comparative silence on the matter since the consultation closed in 2023), it's striking how much there is left to do given the stated aim to have this new system in place by the end of 2027. The Government's desire to respond swiftly to the Fingleton Review by reference, in part, to EORs may explain the relative lack of detail in what they have published on EORs. 

Similarly, whilst it's entirely sensible that further consultation and engagement be carried out on the development and implementation of the regime, it's difficult to imagine the extent of such consultation and engagement proposed being conducive to meeting that 2027 target, particularly given consensus is unlikely across key stakeholders given some of the inherent tension between their positions/aims (as illustrated by some of the key themes highlighted in the consultation responses). 

If the Government is not sufficiently clear on the outcome (no pun) they're looking to achieve, and the trade-offs they're willing to accept, then it wouldn't be surprising if the process is delayed and/or, when implemented, not hugely dissimilar to what we have today. 

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