Environmental Impact Assessments

Question 1

Are EIAs intended to be procedural or substantive?

Answer 1

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

Question 2

What is the reason for conducting an EIA?

And how does it achieve this?

Answer 2

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

Question 3

What are 3 primary benefits of an EIA?

Answer 3

1. Facilitates public participation in decisions-making
2. Provides decision-makers with relevant information
3. Requires that decision-makers take into account the information received, and account for how they have taken that information into account.

Question 4

Is there a binding obligation to conduct an EIA?

Answer 4

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.)

Question 5

What information should be included in an EIA?

D.A.M.I.T) (think: damn it!

Answer 5

Coming from the UNEP Principles

1. DESCRIPTION of activity
2. ASSESSMENT of the likely impacts
3. MITIGATION measures
4. INDICATION of uncertainties and other gaps in knowledge
5. Indication of possible TRANSBOUNDARY effects

But ultimately it is a matter of domestic policy (Pulp Mills)

Question 6

Is a state relieved of its obligations once an EIA has been completed?

Answer 6

No, they require on-going review and monitoring, which will probably require a neutral third party (Pulp Mills)

Question 7

What is the very first step in an EIA?

Answer 7

Determine whether or not one is needed

Essentially a question of whether or not the threshold has been met

Question 8

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?

Answer 8

(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)

Question 9

What is the difference between an ‘Initial Environmental Evaluation’ and a ‘Comprehensive Environmental Evaluation’?

Answer 9

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

Question 10

What is the difference between the exposure of an ‘Initial Environmental Evaluation’ and a ‘Comprehensive Environmental Evaluation’?

Answer 10

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

Question 11

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)?

Answer 11

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

Question 12

How did the Tribunal in the Pulp Mills case categorise the issues? And explain what encompasses the 2 catagorisations

Answer 12

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

Question 13

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)

Answer 13

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.

Question 14

Did Uruguay breach its substantive and procedural obligations found in the relevant treaty?

Answer 14

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

Question 15

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?

Answer 15

Essentially, the arguments pertained to the scope of the EIA

Argentina argued:

1. It should have been done prior to its decision
2. Uruguay’s conclusions were essentially flawed, in that they were based on unsatisfactory environmental assessments.

Question 16

What was the court’s conclusion on the 2 issues relating to the EIA?

Answer 16

1. 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
2. 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.

Question 17

What is a problem with ICJ’s judgment in Pulp Mills?

Answer 17

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

Question 18

What was the result in the Pulp Mills case?

Answer 18

Although Argentina succeeded in establishing that Uruguay had breached some of its procedural procedures, no award was made in their favour.

Question 19

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?

Answer 19

Essentially deals with the idea of ‘what if’ a company caused a disaster, and then what would be the sponsoring States responsibility?

Question 20

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?

Answer 20

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.

Question 21

What is the extent of the sponsoring State’s responsibility to ensure a company’s activities on the deep sea floor?

Answer 21

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.

Question 22

Is ‘due diligence’ a fixed concept?

Answer 22

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

Question 23

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?

Answer 23

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.

Question 24

How would a sponsoring state breach its obligations of due diligence? (re deep sea mining)

Answer 24

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.

Question 25

Does the Tribunal consider that the precautionary approach is a principle of customary international law?

Answer 25

The Chamber accepts there has been a trend towards making the precautionary approach part of customary international law.
-I.e. NOT a principle of customary international law YET, but that it could become one

But, given that the tribunal said it is part of due diligence, it could be argued that under due diligence, it requires the obligation of the precautionary principle towards preventing pollution etc.

Question 26

What is the responsibility on states to conduct an EIA in the context of deep sea floor mining? What is the source of this obligation?

Answer 26

The requirement to conduct an EIA is a direct obligation under the Law of the Sea Convention and a general obligation under customary international law (references same point from Pulp Mills)

Question 27

What did the Costa Rica v Nicaragua case reinforce from the Pulp Mills case?

Answer 27

There is a requirement under general (customary) international law that an EIA is to be undertaken where there is a risk of transboundary harm, and this is an obligation of due diligence

Question 28

As established in Costa Rica v Nicaragua, describe the 3-step process that states need to abide by when they are setting up a project/activity that carries a risk of transboundary harm?
(A.C.T)

Answer 28

The state must:

1. ASCERTAIN if there is a risk of transboundary harm.
   - If so, this triggers the need to do an EIA
2. CONDUCT the EIA
   - Taking into account the nature of the proposed development, its impact on the environment, and the need to exercise due diligence
3. TELL (notify and consult) in good faith to determine measures to prevent or mitigate the risk

Question 29

There were 2 joined cases in the Costa Rica/ Nicaragua bitch fight. Who was claiming what?
And what is the bitch-fest cases usually referred to as?

Answer 29

The root of the disagreement was disputed territory that stemmed from a territory Treaty between the 2 countries. The area concerned was wetlands and a river on the border. But then they both bought cases just to salt wounds.

Costa Rica claims that Nicaragua was dredging causing transboundary harm

Nicaragua claims that Costa Rica built a road too close to the border, causing sediment transboundary harm

Because of all this bitching and moaning, and the particular facts, the case line is often referred to as the ‘Certain Activities’ cases

Question 30

Did Costa Rica succeed in its claim that Nicaragua caused harm of a transboundary nature by dredging?

Answer 30

No, there was no evidence to support this claim that harm will occur.

Question 31

Why did Costa Rica fail in their claim that Nicaragua breached their obligation to notify and consult Costa Rica with an EIA?

Answer 31

Notify and consult is the 3rd step. As there was no harm (1st step), no EIA was needed, thus no need to notify and consult

Question 32

What is the problem with the CR v N court putting the obligation to notify and consult in the final stage of the 3-step process?

Answer 32

By the time the neighbouring state gets the EIA (3rd step), the project is probably quite far down the track. If the obligation was earlier, then the other state’s opinion could be included in the EIA. As the process currently stands, the EIA wouldn’t include any input from the other state

So the case has established a clear process that the court thinks should be followed, but the result might be a bit restrictive for neighbouring states

NB: this aspect of this decision hasn’t been entirely accepted by some commentators

Question 33

What was Costa Rica’s defence of building the road? and was this accepted by the court?

Answer 33

C said it was an emergency to build the road, claiming the dispute with N was cause for invasion so they needed the ability to move troops/equipment etc. around

The court rejected this- no evidence of emergency and the need to build quickly

Point:
In some emergency cases, states can be excused from responsibility (but NB: that doesn’t mean that you don’t breach it)

Question 34

Did the court find that there was a risk of transboundary harm in building the road? (the 1st step)

Answer 34

Yes. The nature and scale of the project meant that there was a significant risk of transboundary harm.
-Sediment from the construction could be carried into the river, and removal of vegetation around the river could cause further environmental problems.

Therefore Costa Rica are required to conduct an EIA

Question 35

Did Costa Rica carry out an EIA?

Answer 35

They presented documents to the court to prove the fact. However, they showed that they had done one AFTER construction had commenced. The obligation requires an EIA to be completed BEFORE the fact

Question 36

Did Costa Rica breach:

a) their procedural obligations to Nicaragua?
b) their substantive obligations to Nicaragua?

Answer 36

a) yes there was a failure of procedure
- They should have conducted an EIA PRIOR to the building of the road and they should have notified N of this project with risk of transboundary harm

b) no. N could not prove that the sediment in the river was not substantively caused by C (partly because the river was already sedimented AF)
- N needed to prove that C caused SUBSTANTIVE harm in order to prove a substantive violation of Principle (i.e. failure to prove a negative impact)

Question 37

What were the 2 main sources of law that the Costa Rica/Nicaragua court looked to?

Answer 37

The main one was the Pulp Mills case to find the customary international law

They also made reference to the treaty of biodiversity. It carries the same idea, but it doesn’t quite work in this context. Plus the case was already made out on the CIL. Was just used to bolster the argument

Question 38

Is there an obligation to conduct an EIA where there is a risk of significant harm to shared resources? (including the deep seabed)

Answer 38

Advisory Opinion states that, yes, this is customary international law

And because this is rooted in the idea of ‘common heritage of mankind’, there is strong argument that it MAY apply to other contexts beyond national jurisdictions

Question 39

What determines the content of an EIA?

Answer 39

Pulp Mills:

This is a matter of domestic policy
However, UNEP principles might need to be taken into account