Innovation in sight: the Decree on Modernisation of the Environmental Impact Assessment explained

Next year, on 1 December 2025, the Decree Modernisation of the EIA will enter into force. With this amending decree, the Flemish government wants to realise an EIA procedure in which efficiency is central. Quality, customisation, simplification and digitalisation are the core concepts that are mentioned in the same breath as the new decree. A promising initiative, but what exactly does it entail? Lawyer Elouise Willems examines the decree and guides you through the most important new features.

Due to the many court rulings, the applicable rules are often unclear. With the Decree Modernisation MER, Flanders is striving for a more transparent and efficient procedure.

The Decree Modernisation MER in detail

Below are some important changes, including the stricter motivation obligation for decision-making authorities, the establishment of the Flemish knowledge centre MER and other relevant innovations within the MER research.

1. Checklist for a formal motivation obligation

Where the motivation obligation of authorities has so far been shaped by case law, the new decree establishes a clear legal framework. Authorities must now justify their decisions on permits and plans on the basis of a checklist that includes at least the following:

• the content of the permit decision and any permit conditions
• the choice of the intended action or a specific alternative
• the acceptability of the possible consequences of the chosen alternative
• the reasoned conclusion
• (where applicable) a description of the most important measures to avoid, prevent or limit and compensate for significant adverse environmental effects
• (where applicable) the monitoring measures
• the reasons on which the decision is based, taking into account the objections and comments submitted
• (where applicable) the topicality of the project EIA.

This list not only clarifies what the formal obligation to state reasons actually entails, but also serves as a useful tool for reaching a well-considered decision.

2. Environmental impact assessment with quality as a core principle

The new legislation places responsibility for the plan EIA study with the decision-making authority. This authority determines the content and monitors the quality of the planning process.

It is important that the government does not perform this task alone. Flanders emphasises ‘shared ownership’, in which various actors are involved. An important new feature is the establishment of the Flemish expertise centre MER, an advisory body that will support the decision-making authority during the planning procedure. The MER team will continue to provide non-binding advice, but will no longer be able to be called upon for the provisional approval or rejection of projects.

In addition, the substantive focus of the MER research lies with a team of independent and recognised MER experts and coordinators, supported by the expertise centre. They carry out a targeted content determination, or ‘scoping’, to identify the relevant and significant environmental effects, without involving unnecessary information in the research.

3. A simplified project MER procedure

The possibility of a prior request for exemption from the MER obligation for projects is however being scrapped. From now on, a project will either be subject to an MER or to an MER screening obligation, but the applicant will no longer be able to request an exemption.

In addition, the EIA screening note is renamed a ‘screening’. This simplification should not only be felt in name, but also in practice. The process should make it clear to the initiator more quickly whether an extensive report is required. If it appears that significant environmental effects are possible, a project EIA is drawn up. A digital screening tool can be used for this, which further streamlines the procedure.