(11) Environmental Law

Lecture Environmental Impact Assessment - Video

Environmental impact assessment - Wikipedia

Strategic environmental assessment - Wikipedia

Impact Assessment Law, Policies and Practice

STRATEGIC ENVIRONMENTAL ASSESSMENT (SEA) current practices, future demands and capacity-building needs

Environmental Impact Assessment and Strategic Environmental Assessment: Towards an Integrated Approach - 2004 - UNEP

Strategic Environmental Assessment - SEA - European Union

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Compliance and Governance Mechanisms

This texts examines compliance and governance mechanisms as they apply to most international environmental issues. Environmental impact assessments are needed, for instance, for most development projects, independent of whether they affect air quality, water, or species diversity. The right to information and participation in decision making applies to a large number of environmental issues.

In addition to general governance mechanisms, many treaties contain requirements for the exchange of information among states or for state reporting to institutions established under a treaty – either about the level of state compliance or regarding the state of the environment. Many environmental instruments include the requirement of notification and consultation with other states, which are especially important in emergency situations. However, before 1990, it was rare for environmental treaties to establish implementation committees or independent inspection panels.

Compliance and governance mechanisms could be instrumental in addressing environment problems, provided that states are willing to comply with their obligations. For instance, prompt notification in case of an environmental emergency can save lives and lead to preventive efforts that would thwart further contamination. States reporting on the severity of their environmental problems and their compliance record could provide information that would help clarify the nature of these problems and indicate measures to address them. The importance of information must not be overlooked in environmental matters, the effective management of which is based on the availability of correct information. Improving the quality of information about the nature of a problem and the means available to address it could go a long way toward resolving some of the thorny environmental issues (e.g., fisheries management, in which accurate information has been notoriously unavailable, or climate change, in which some scientific uncertainty has prevented countries with high emissions from taking action).

ENVIRONMENTAL AND STRATEGIC IMPACT ASSESSMENT

The Environmental Impact Assessment (EIA) was adopted first in the United States as a way to assess the environmental implications of development projects. Since then, a large number of national and international environmental instruments have included provisions for assessment.

The United Nations Economic Commission for Europe (UN/ECE) Convention on Environmental Impact Assessment (EIA) in a Transboundary Context provides for EIA for activities that are likely to cause a significant adverse transboundary impact, leaving the definition of what constitutes a “significant” impact open to interpretation.

The convention provides for a four-step process for EIA for projects likely to have transboundary impacts. First, the state of origin must notify the affected state. This notification must contain information on the proposed activity, the nature of possible decision, and an indication of a reasonable time within which a response is required. If the affected state does not respond within the time set in the notification, or indicates that it does not intend to participate in the procedure, then the transboundary EIA process stops there.

Otherwise, on receipt of response of the affected party, the state of origin must send information on the EIA procedure and the proposed activity. The notification process can be initiated by the affected party if that party considers that it would be affected by an activity listed and no notification has been given by the state of origin. In that case, the treaty provides for an exchange of information between the state of origin and the affected state in order to determine whether there would be a transboundary impact. If the parties cannot agree, then they can submit the matter to an Inquiry Commission (unless they agree on another method of settling the dispute). It is worth noting that an Inquiry Commission has yet to be used in a transboundary EIA. Furthermore, it is provided that the public of the affected party must be informed and must be provided with possibilities of making comments on or of filing objections to the proposed activity. Such comments or objections must be transmitted to the state of origin.

The second step for a transboundary EIA involves the preparation of the environmental impact assessment information. Appendix II of the convention set outs the minimum requirements for an EIA, which must be communicated to the affected state. The requirements must include a description of the proposed activity, alternatives to the activity, including a no-action alternative, mitigation measures, and postproject activities.The state of origin of the transboundary activity is required to allow for the participation of nationals of the affected state in the decision-making process, on the same terms, as it allows for its own nationals.

The third step involves consultation between the state of origin and the affected state on the basis of information supplied by the state of origin.Consultations must happen within a reasonable time frame. The state of origin is not required to refrain from the proposed activity based on the failure of consultations with the affected state, but in its final decision it must take into account the comments provided by the affected state.

The fourth step involves the final decision and post project analysis. The purpose of the post project analysis is to monitor compliance with the conditions set out in the authorization or approval of the proposed activity and the effectiveness of mitigation measures. Post project analysis is undertaken if the concerned parties determine that it is necessary to do so.

The record of state compliance with the convention is mixed. The implementation of the convention has encountered some problems, for example late notification, notification in the language of the country of origin, inadequate information in the notification, difficulty of understanding the originating party’s EIA procedure and problems with processing notifications. Some of the parties reported that the content of the EIA documentation they received was inadequate. Most of the parties noted, though, that their comments had been taken into account by the state of origin.

Regarding the participation of the public of the affected state in the EIA process, some of the common problems states describe include difficulties in interpretation, a lack of public interest, and border controls. Parties reported that comments received from the public of the affected state were taken into account in decision making.

Some parties reported that they have been involved in EIA procedures in which the party of origin did not initiate consultations. Issues regarding the translation of the EIA documents in other languages, and who should undertake the costs of these translations, also emerged. Even after reviewing the record of implementation by state parties, it is difficult to decipher whether the EIA process has any real impact on the decision-making Appendix process or whether it is one more procedural requirement by which a number of steps are mechanically followed as items to check off a list. In this context, one should not underestimate the information in the hands of the state of origin and the leverage that such information gives to that state. A state may decide to divulge or bury such information, and this could affect the quality of EIA.

The EIA is especially powerful when it is used by international financial institutions as a condition for providing assistance for national projects. The World Bank adopted its own EIA procedures, the World Bank Operational Directive on EIA, in 1989, and it has been revised frequently. The World Bank has performed three reviews of its own EIA procedure. The first review revealed that the EIA process was operative and was producing results, but several problems were reported. Such problems included a weak process of public consultation, insufficiently analyzed site and design alternatives, inadequately developed mitigation, monitoring, and management plans, and a limited EIA impact on project design.

The second review was performed in 1997. It was noted that the EIA was incorporated firmly into the Bank’s policies but there were questions about the supervision of the EIA procedure and the increasing workloads regarding the performance of EIAs. The study noted that the most important improvements in the performance of EIAs occurred in the areas of mitigation, planning, and monitoring. But public consultation and analysis of alternatives remained a weak point, although some evidence of progress was reported. The review recommended the employment of more environmental specialists (especially local ones) and the greater use of local NGOs. The review stressed the importance of Sectoral Environmental Assessments (SEAs) as the Bank is attempting to adopt a sector wide view of its loan policies. The review noted that SEAs were a more effective means of addressing sector-related environmental issues that were only partly addressed with project-specific EIAs.

A 2002 review of the World Bank’s EIA process followed up on the recommendations of the 1997 review. The Bank appeared to be beefing up its training programs on EIA and tried to improve the capacities of borrowing countries. The Bank established measures to ensure that public consultation was strengthened and that alternative projects were actually proposed during the EIA process. Further efforts have been undertaken so that EIAs are executed early in the process; recommendations provided for in an EIA are transformed into precise legal requirements in the loan and credit agreements. There is an understanding that, unless EIA results are precisely incorporated into the legal loan and credit instruments, they would be disregarded.

Furthermore, efforts are made so that category A projects (projects with significant environmental impacts) and category B projects (projects with potential environmental impacts) are supervised annually by an environmental or social specialist.

The World Bank has now incorporated EIA into its environmental and social safeguard policies. The purpose of these policies is to include environmental and social policy requirements in the projects undertaken by the Bank. In addition to EIA, various safeguard policies have been adopted. The Bank also has established a Quality Assurance and Compliance Unit (QACU). This unit functions within the Environmentally and Socially Sustainable Development (ESSD) Network of the Environmental Department at the Bank. The QACU is making progress in ensuring the implementation of safeguard policies at the Bank.

However, several problems remain that the Bank is attempting to address. The Inspection Panel, which the Bank has established to its credit, has discovered several breaches of safeguard policies of the Bank. Several other problems have been encountered in EIAs.

The initial categorization of a project as an A project guarantees that the project commands more attention. The EIAs performed on category A projects have improved. B project categorization, as a rule, generates less attention in a number of areas, including analysis of alternatives, public consultation, and supervision. Because a categorization of a project as a B project would involve “less effort,” there is an inherent personnel bias to categorize all projects as B projects.

Other problems include the lack of supervision by environmental specialists and the need for better tools in identifying long-termenvironmental and social impacts.Although public consultations have improved, in general, most of this improvement is noticeable in category A projects rather than in category B projects. This has led to an incentive to categorize all projects as B projects. In the context of bilateral donor assistance, the issue of coherent EIAs has been raised within the OECD. The OECD has attempted to devise “terms of reference” that would be common in all bilateral assistance projects, but the practicality of such an endeavor has been challenged by some donors that view EIAs as issue-specific.

The OECD has pointed out the complexity involved in the EIA process, namely, the involvement of multiple stakeholders, the multijurisdictional legal/regulatory framework, the complex scientific data, and sophisticated analytical methods. Because of this complexity, the effective management of the EIA process is a significant challenge for most states.

A new instrument was adopted in 2003 as a protocol to the EIA Convention, the Protocol on Strategic Environmental Assessment (SEA). SEAs have been popular nationally and internationally as a means of improving the understanding of environmental effects of development projects. The World Bank’s Sectoral Environmental Assessments are, in essence, SEAs for a specific sector. The EU also has adopted a directive on SEAs.

The EIA and the SEA differ in their scope. The EIA takes place after a policy has been decided for the projects that would implement the policy. The SEA takes place at the level of policy formulation. For instance, if a government decides to cover its energy needs by using more coal than other resources, EIA can be used to assess the effects of coal use on the environment for each project that implements the policy.

By contrast, SEA would be applied at the sectoral level, at the point at which the government makes a decision on the methods to cover its energy needs. In practice, what differentiates SEA from EIA is that SEA is applicable before a plan or a program is adopted or submitted to legislation, whereas EIA is applicable after a plan or program is adopted for the individual projects that implemented it. SEA, whenever performed, is likely to reduce the number and scope of EIAs because many of the issues and alternatives usually addressed at the EIA level would be addressed at the SEA level. Despite the possibilities of implementation of SEA at the policy level, most SEAs today are performed at the program and planning level.

The 2003 protocol provides the sectors for which SEAsmust be performed, which include agriculture, forestry, fisheries, energy, industry including mining, transport, regional development,waste management,water management, telecommunications, tourism, town and country planning, and land use.

The World Bank has increased its use of SEAs and has performed SEAs in various countries and regions on different sectors of the economy, including energy, power, water, wastewater, and transportation. The Bank has noted several advantages with the performance of SEAs. Such advantages include the identification of key environmental issues at an early stage, a better framework for a legal agreement, and better decision making. The Bank also has been involved in a limited number of Regional Environmental Assessments (REAs), which could accurately be described as strategic assessments with a regional outlook.

The execution of SEAs has been more challenging in bilateral donor assistance. Most governments have not developed the methodologies and lack experience in conducting SEAs. Some commentators have characterized SEAs as the reincarnation of national/regional planning. Because such planning is performed at a higher level of government than project planning, “outside” intervention is not often welcomed (e.g., by donors or NGOs). This has to do with the degree of confidentiality that often accompanies and is expected of high-level policy decisions. Having said that, the outright exclusion of NGOs from the SEA process may not be politically feasible today.

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