Introduction
2030. This is the year many countries have set as their target to achieve their most important environmental ambitions. Sustainably managing marine resources is key among these goals. With 2030 now just around the corner, what could meeting these milestones mean for the submarine telecommunications cable industry?
The laying of subsea cables is critical for global communication—making marine licensing and permitting a vital process in securing approval to survey, install, and operate while safeguarding environmental and cultural assets. Both Europe and the USA regulate these activities rigorously, but differences in their legal frameworks, environmental priorities, and jurisdictional approaches create distinct challenges and opportunities.
In this blog, I will summarize the regulatory landscapes in Europe and the USA, focusing on key aspects of the scope of environmental assessment for cables including: protected species and habitats, coastal dynamics, archaeology, and fisheries. With the emergence of large-scale offshore renewable development in the North Sea twenty years ago, combined with the mandate for all Coastal EU Member States to have a Marine Spatial Plan in place by 2021, we have already witnessed an increase in environmental assessment scope—are we going to see the pattern of spatial squeeze and the EIA iceberg spread to the USA?
History and the Picture Today
In essence, Environmental Impact Assessment (EIA) is a process that examines the environmental consequences of development actions in advance. Similar to Marine Spatial Planning and Strategic Environmental Assessment, this process results in an end-product report (for example, Environmental Impact Statement (EIS), Environmental Impact Assessment Report (EIAR), Environmental Assessment (EA), etc).
Since 1969 when EIA was formally established in the USA, it has spread worldwide and received a significant boost in Europe with the introduction of the EIA Directive 2011/92/EU in 1985.
Subsea cables are not listed as an Annex II type development in the EIA Directive, so EU Member States use their own internal procedures to determine what level of assessment would be required on a case-by-case basis, depending on scale, location, and design.
As someone who has spent the last 25 years in environmental assessment for both industry and government, there is jurisdictional creep, and the 2030 targets have already impacted how we carry out environmental assessment of new cable projects. It is not going to get any easier. Here are a few examples of the overarching expansion of international jurisdiction:
- The US government wants net zero power by 2050 and has a target to reach 50-52% below 2005 levels in 2030. Similarly, under the Paris climate agreement, the EU aims to be climate-neutral by 2050 – an economy with net-zero greenhouse gas emissions. The emergence of offshore renewables to reach these goals has resulted in a more complex environmental assessment for cables in the EU. It will not be long until we see it impact cable projects in the USA.
- We are now halfway through the “UN Decade of Ocean Science” and “UN Decade of Ecosystem Restoration.” The 2030 Agenda for Sustainable Development, adopted by all United Nations members in 2015, created 17 world Sustainable Development Goals to be achieved by 2030.
- OSPAR Commission’s 16 contracting parties have signed the North-East Atlantic Environment Strategy 2030. It sets out the objectives to tackle the challenges facing the ocean: biodiversity loss, pollution, and climate change.
- The Kunming-Montreal Global Biodiversity Framework commits 196 countries to halting and reversing nature loss by 2030. The agreement’s 23 targets include a global target to conserve at least 30% of the world’s ocean by 2030 (“30×30”).
- In 2023, the United Nations International Conference on Marine Biodiversity of Areas Beyond National Jurisdiction (BBNJ) agreed on the draft text of a new agreement under the United Nations Convention on the Law of the Sea 1982 (UNCLOS) on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (the BBNJ Agreement).
- The EU has adopted a new “Nature Restoration Law” where Member States will put in place restoration measures in at least 20% of the EU’s sea areas by 2030.
Both the EU and the USA place significant emphasis on environmental assessments to evaluate the potential impacts of subsea cable projects. However, the frameworks and stringency of the requirements vary, and the scope of assessment changes on a case-by-case basis. The scope of assessment (i.e. how many surveys and studies you must carry out to support your permit application) is something that is easily controlled on an individual project basis, but done wrong, could be at the risk of setting precedence.
It’s not just a regulatory concern, but also a resource / personnel one. Governments and cable suppliers are losing their cable experts to the more attractive blue economy industry— offshore wind. This is a real resource problem that impacts permitting, not just in government and industry, but also in environmental consultancies.
The Environmental Assessment Process
In the EU, each Member State mandates that projects likely to have significant environmental effects must undergo a thorough environmental assessment. In the USA, the National Environmental Policy Act (NEPA) serves as the primary legislation governing environmental assessments.
Both jurisdictions require extensive supporting documentation in the permitting process to ensure compliance with environmental, cultural, and archaeological regulations extending beyond the immediate project footprint of the cable itself, and both mandate public engagement and stakeholder consultation.
In the EU, the EA process evaluates the potential impacts for every stage of the cable life cycle (survey to recovery), whereby biodiversity, coastal dynamics, archaeology, and fishing are part of the baseline assessment (with some other topics in the scope, like shipping, depending on the location). The USA’s NEPA process allows for more discretionary assessments with less emphasis on cumulative environmental effects and long-term impacts than in EU countries. The precautionary principle, commonly applied in EU environmental law, adds another layer of stringency compared to the USA NEPA process. Any uncertainty in the process, (for example, whether or not to carry out a benthic survey), can lead to permit delays.
Marine Biodiversity
The protection of marine biodiversity, especially endangered species and vulnerable habitats, is a critical aspect of subsea cable permitting. The industry takes seriously the survey of potential reef systems to advance the knowledge of seabed habitat distribution and avoid impacts. At the coastal fringes, it is standard practice to weave through coral or reef habitats regardless of what side of the Atlantic you are on.
The EU Habitats Directive (92/43/EEC) and the EU Birds Directive (2009/147/EC) form the cornerstone of species and habitat protection and there are rigorous assessment processes in place to avoid adverse impacts to site integrity. But what about species, habitats and ecosystem services outside this network?
Marine Spatial Planning has led to a more accurate and efficient evidence base on the location of species and habitats (outside nature conservation areas), but only in the countries that practice it. In Europe this has led to authorities requesting benthic surveys where there is a suggestion of a protected habitat or species outside the Natura site network (i.e. based on a predictive habitat map), just one example of the precautionary principle being applied to decision making in the EU. On a recent occasion in one EU country, the coastal administrations requested a benthic survey before and during lay of a telecommunications cable, and in another country, for benthic surveys to be carried out two years post-installation. Pushing back on these requests typically delays permits, and the risk to timelines must be weighed carefully. Is this a result of the EU Member States testing (in an informal way) the implementation of the recent “Nature Restoration Law” or in meeting goals to tackle biodiversity loss? It is unclear how the goals and targets will be transposed into domestic legislation and how this, in turn, will impact cable projects. The industry is going to have to be creative about how they deal with these new requirements and commitments.
In the USA, the Endangered Species Act (ESA), the Marine Mammal Protection Act (MMPA) and the Magnuson-Stevens Fishery Conservation and Management Act are the key legislative tools for protecting marine species and habitats. This typically involves consultation with the National Oceanic and Atmospheric Administration (NOAA) and the U.S. Fish and Wildlife Service.
Marine Mammal Observers/Protected Species Observers are not often required for installation and survey in the EU, but are in the USA under Section 7 of the ESA. This is one example where the USA is stricter on impacts to cetaceans (from noise and vessel strikes). Recently NOAA suggested there to be an impact to migration patterns of whales across a large ocean, even going so far to include the “neighboring” countries” legislation and mitigations in the permit.
Coastal Dynamics & Climate Change
The effects of climate change are increasing the frequency and intensity of storm events on most coasts, leading to changes in sediment transport, erosion, and seabed disturbance.
The EU’s Marine Strategy Framework Directive (2008/56/EC) and the Water Framework Directive (2000/60/EC) guide Member States in evaluating subsea cable projects against any coastal dynamics and water quality changes. Different EU member States have different methods of implementation, but some form of in-depth coastal study is generally required as part of the permitting process.
In the USA, the Coastal Zone Management Act (CZMA) provides a flexible framework for states to develop and implement a Coastal Management Plan (CMP). At one extreme is Alaska, which withdrew from the CZMA program in 2011, and at the other extreme is California, which has developed enforceable policies in its CMP that address the impacts of projects on wetlands, coral reefs, and estuaries, which provide critical services like storm protection and fisheries support. Cables that are unburied on hard bottom have to pay a Hard Bottom Mitigation fee of $25,000 per km, along with a series of other mitigations.
Archaeology
Both Europe and the USA recognize the importance of preserving underwater cultural heritage and archaeological resources when permitting subsea cable projects.
In the EU, the UNESCO Convention on the Protection of the Underwater Cultural Heritage forms the foundation of underwater archaeology regulations. Additionally, national laws, such as the Marine and Coastal Access Act 2009 in the UK, protect underwater cultural heritage from damage or destruction. Any discovery of archaeological resources during subsea cable installation must be reported, and cable operations can be stopped depending on the discovery.
In the USA, the National Historic Preservation Act (NHPA) and the Archaeological Resources Protection Act (ARPA) regulate archaeological findings in federal waters. Under these laws, any project affecting significant cultural or archaeological resources must undergo a review and may require mitigation or preservation efforts.
Both jurisdictions have strong legal protections for underwater archaeology, though the EU may apply more stringent standards in specific Member States, particularly under national laws that complement the broader EU frameworks. For cable projects in the EU, it is common for an archaeologist to be present subsea and on land, whereas in the USA, this is controlled by desk-based assessment.
Fishing Activities
Fishermen are displaced by large leased areas of the seabed for offshore renewables and their disenfranchisement is passed onto new cable projects (especially if there is a windfarm in the area). We’ve seen this pattern in the UK spread to Europe. This displacement creates the requirement for burial, guard vessels, and Fisheries Liaison Officers. These measures are not typically seen across all states in the US, but is it may be a matter of time. This pattern may very well spread.
Closing Thoughts
We have already witnessed a more complex environmental assessment framework over the past 15 years, and with just five years until 2030, what other changes will cable projects see as a result of creeping jurisdiction?
As an industry with relatively benign impacts to the marine environment compared to other industries, in order to achieve the transition to a low-carbon, nature-positive, and sustainable world in a fair and just way, we are going to have to present a strong evidence base to justify a practicable approach to environmental assessment and mitigation. As for the displacement of new cable routes as a result of large areas of seabed being leased to tackle the net zero goals – that’s a topic for another paper!
The comparison between marine licensing and permitting for subsea cables in Europe and the USA reveals both shared priorities and key differences. The EU’s system, driven by precautionary principles and comprehensive environmental directives, tends to be stricter, particularly regarding environmental assessments, species protection, and coastal dynamics. The USA, while also maintaining robust environmental protections, offers more flexibility in mitigation and may be less prescriptive in some areas, depending on state-specific regulations.
Further reading:
This blog is based purely on our permitting execution across the USA and Europe, but for those interested, here are example reviews of worldwide systems:
- History of EIA systems and measures taken around the world
- Environmental impact assessment (EIA) systems in Europe and Central Asia countries
- EIA in the US, the UK and Europe
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