Environmental Impact Assessments Flashcards
(39 cards)
Are EIAs intended to be procedural or substantive?
They are considered a procedural tool to aid in decision making, rather than a substantive obligation to do something
NB: They do not require any specific outcome from the decision maker
What is the reason for conducting an EIA?
And how does it achieve this?
The aim is to generate better informed and more sustainable decisions on projects that may impact on the environment
-The effects of the activity should be assessed in commensurate detail with the likely environmental significance
Involves specific decision making processes for assessing the consequences of activities, plans, or programmes
What are 3 primary benefits of an EIA?
- Facilitates public participation in decisions-making
- Provides decision-makers with relevant information
- Requires that decision-makers take into account the information received, and account for how they have taken that information into account.
Is there a binding obligation to conduct an EIA?
Rio, Principle 17:
If something is likely to have an impact on the environment, then an EIA SHOULD be done. However, it is not binding on its own- need to be included in a binding instrument
HOWEVER, there is case evidence that this is a general obligation at international customary law where there is a genuine issue of transboundary harm (see Danube Dam case/ Pulp Mills/ etc.)
What information should be included in an EIA?
D.A.M.I.T) (think: damn it!
Coming from the UNEP Principles
- DESCRIPTION of activity
- ASSESSMENT of the likely impacts
- MITIGATION measures
- INDICATION of uncertainties and other gaps in knowledge
- Indication of possible TRANSBOUNDARY effects
But ultimately it is a matter of domestic policy (Pulp Mills)
Is a state relieved of its obligations once an EIA has been completed?
No, they require on-going review and monitoring, which will probably require a neutral third party (Pulp Mills)
What is the very first step in an EIA?
Determine whether or not one is needed
Essentially a question of whether or not the threshold has been met
Art 8 of the Protocol on Environmental Protection to the Antarctic Treaty (1991) states that certain proposed activities may require an EIA to be conducted.
What are the 3 levels of threshold that determine the need for an assessment?
(a) less than a minor or transitory impact;
(b) a minor or transitory impact; or
(c) more than a minor or transitory impact.
NB: these are low thresholds for the context because Antarctica is considered pristine and relatively untouched by human activity, also a clean up would be much harder to resolve (given the distance and weather conditions)
What is the difference between an ‘Initial Environmental Evaluation’ and a ‘Comprehensive Environmental Evaluation’?
An Initial Environmental Evaluation is needed when there is (b) a minor or transitory impact
A Comprehensive Environmental Evaluation is needed when there is (c) more than a minor or transitory impact.
NB: no EIA is needed when there is (a) less than a minor or transitory impact
What is the difference between the exposure of an ‘Initial Environmental Evaluation’ and a ‘Comprehensive Environmental Evaluation’?
Comprehensive Environmental Evaluations are much more comprehensive because the activity carries more risk of causing environmental problems
Because of this, the comprehensive EIA, once completed, must be made publicly available and circulated to all parties. And no final decision shall be taken to proceed unless there has been an opportunity for Antarctic Committee to consider it
HOWEVER, it is still up to States to determine whether or not to continue with the activity
What is the key problem with the requirements to conduct an EIA under Art 8 of the Protocol on Environmental Protection to the Antarctic Treaty (1991)?
What the fuck is a ‘minor or transitory’ impact?
Different states have taken different interpretations and approaches to this
- Like one country thinking it was only minor to blow up a runway near a penguin colony
- Cf: NZ knew there was only minor risk in some drilling, but did a comprehensive assessment anyway
How did the Tribunal in the Pulp Mills case categorise the issues? And explain what encompasses the 2 catagorisations
Procedural issues and substantive issues
Procedural obligations are going through the right steps, like due diligence and completing an EIA
-Failing these will violate the law.
Substantive obligations are things like not actually polluting the river
Does an obligation to proceed with due diligence and provide an EIA give Argentina the right to veto the building of the Uruguay pulp factory? (Pulp Mills case)
No
This process would only have allowed Argentina to have its say and be consulted before the project was authorised- it would have just let them make their case.
Did Uruguay breach its substantive and procedural obligations found in the relevant treaty?
Procedural:
By not providing Argentina with the EIA prior to factory construction, Uruguay hadn’t acted with due diligence
Substantive:
Court found that there were no substantive obligations in the relevant treaty relating to the levels of pollution that could be discharged.
So it didn’t matter that they had polluted the river, but rather that Uruguay hadn’t conducted an EIA prior to the factory being built and let Argentina know. Essentially, there were obligations of CONDUCT not RESULT
There was no disagreement between Uruguay and Argentina that an EIA had to be conducted. So what were the 2 issues relating to the relevant EIA?
Essentially, the arguments pertained to the scope of the EIA
Argentina argued:
- It should have been done prior to its decision
- Uruguay’s conclusions were essentially flawed, in that they were based on unsatisfactory environmental assessments.
What was the court’s conclusion on the 2 issues relating to the EIA?
- Agreed. The ICJ accepted that it may now be considered a requirement under general international law that an EIA is to be undertaken where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource
- Denied. The ICJ said that Argentina’s argument was unconvincing as (in relation to Argentina and Uruguay and this treaty) there were no standards of what was required to go into the EIA
- While there were things like the UNEP principles etc, it was up to the States to determine, in its domestic legislation or in the authorisation of the project, as to what content an EIA requires.
What is a problem with ICJ’s judgment in Pulp Mills?
The ICJ made incompatible conclusions that:
- As the guidelines are of an international body, Uruguay should have taken them into account
- And that it is up to the States to determine what goes into their EIAs
What was the result in the Pulp Mills case?
Although Argentina succeeded in establishing that Uruguay had breached some of its procedural procedures, no award was made in their favour.
What does the 2011 Advisory Opinion on Responsibilities of States in the Area by the Tribunal for the Law of the Sea attempt to deal with?
Essentially deals with the idea of ‘what if’ a company caused a disaster, and then what would be the sponsoring States responsibility?
What is the key issue with companies mining minerals on the deep sea floor?
And how does the Law of the Sea seek to get around this?
International environment law is vis-a-vis states via treaties etc., they are not bound by the Law of the Sea per se
Therefore, the convention includes provisions for the need for a sponsoring State for the company, who has to ensure that the company carries out the activity in accordance with the convention.
What is the extent of the sponsoring State’s responsibility to ensure a company’s activities on the deep sea floor?
The obligation to ensure is not an obligation to achieve: it is an obligation to put procedures in place to exercise best possible efforts
Not an absolute obligation to ensure that companies comply with it. So long as a State puts the correct procedures in place, then they will be sweet.
The obligation may be characterised as one of due diligence.
Is ‘due diligence’ a fixed concept?
No
It is a variable concept that may change over time as measures considered sufficiently diligent at one point may become not diligent enough at another
May also change in relation to the risks involved in the activity – the more activity conducted, the bigger the risk and more regulation you might need for due diligence
Explain the inter-relationship between the 2011 Advisory Opinion on Responsibilities of States in the Area by the Tribunal for the Law of the Sea and the precautionary Principle?
Because the Regulations are aimed at a ‘what if’ scenario, they are essentially a precautionary instrument.
The Regulations turn the precautionary approach from a non-binding statement into a binding obligation; it is one of the obligations on sponsoring States.
How would a sponsoring state breach its obligations of due diligence? (re deep sea mining)
If it disregarded risks of a negative impact of the activity in question posed by scientific evidence
Such disregard would amount to a failure to comply with the precautionary approach
So States have an obligation to set up procedures, and if they didn’t apply a precautionary approach, they would be failing to comply with due diligence.
