Geoscience Reference
In-Depth Information
Finally, a potential restriction on the effectiveness of decision rules to
steer attention towards demand management is the need in environmental
regulatory systems to make some provision for derogation. I accept that
circumstances may arise in which it would be ethically necessary to permit
environmentally damaging development.
138
However, the danger with
de
ning the circumstances in which derogation would be allowed is that
scope may be provided for the developmental pressures that the statutory
scheme is designed to resist to reassert themselves if derogations are drafted
too loosely. For example, Ludwig Krämer, in his analysis of Article 6(4) of
the Habitats Directive,
139
reveals how a concession for the conduct of
development that would harm priority natural habitat types and species,
where this is supported by an opinion of the European Commission, has
allowed a range of projects to proceed on economic grounds without the
proper scrutiny of whether alternative solutions are available which is a
precondition to the Article
s application.
140
I suggest that a stronger version of Article 6(4) which allows deroga-
tion only on the limited grounds it refers to of threats to
'
'
human health
or public safety
, and only in circumstances where the applicant has
demonstrated a genuine absence of alternative solutions for addressing
the problems concerned, would be appropriate under a system of gov-
ernance whose purpose is to provide impetus for signi
'
cant social
change. This, in contrast to Article 6(4), which contains no mechanism
for challenging the Commission
s opinion, should allow for judicial
scrutiny of decisions by the government to permit environmentally
harmful development.
'
5.4 Environmental assessment
At present, legal requirements for environmental assessment provide the
principal means of ensuring that environmental information is before
public bodies during plan-making and in decision-making on develop-
ment consent applications. It is therefore unsurprising that attention has
been given to how relevant laws might be reformed to enhance environ-
mental protection alongside arguments for revisions to the planning
system itself. In particular, it has been considered whether the cause of
138
Owens and Cowell,
'
Land and Limits
'
, 1st edn, pp. 123
-
4.
139
Habitats Directive, Article 6(4).
140
L. Krämer,
'
The European Commission
'
s Opinions under Article 6(4) of the Habitats
Directive
'
(2009) 21 Journal of Environmental Law,59
-
85.
