Significance of Environmental Impact Assessment for Sustainable Development

Significance of Environmental Impact Assessment for Sustainable Development

Introduction.

One of the most critical global issues facing mankind collectively is the environment. Environmental awareness is an ever growing issue and as such, focus has shifted from basic environmental conservation actions to concentrate on critical development actions and their ultimate impact on the environment. Considering the fact that environmental awareness has been constantly growing, society has become more demanding that environmental factors have to be considered before making any decisions[1]. For a long time, the decision making process during project initiation made minimal efforts towards ascertaining the environmental suitability of said projects. Any attempts to undertake such assessments were often undertaken through a Cost Benefits Analysis which were only effective in assessing economic aspects of the project without due attention paid to the environmental issues. Based on these disadvantages of the CBA approach, it was imperative to establish an approach that would ensure that projects were not only evaluated on their economic or technical aspects but[2]. That environmental considerations were also undertaken. This comprehensive approach was eventually called the Environmental Impact Assessment (EIA)[3].

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Sustainable development on the other hand is an approach towards development that ensures that present generations meet their needs and advancements without infringing or compromising the ability of future generations to meet their needs and advancements as well. When it comes to the environment, Sustainable Development requires the recognition of the fact that development and environmental conservation go hand in hand[4]. That without proper use of natural resources, there are no expectations that development will actually be undertaken. Environmental Impact Assessment has therefore been recognized as an important technique that ensures that assessment of development projects is indeed sustainable by ensuring that said development are in sensitive to environmental concerns. Cognizant of this fact, this paper seeks to establish the significance of EIA in sustainable development by critically exploring aspects of EIA and how they play into sustainable development. This paper will also look at how international courts and tribunals have pronounced themselves on the role of environmental impact assessment in sustainable development.

Core aspects of EIA

In order to establish the significance of this tool on sustainable development, it is essential to establish the core tenets of EIA. While there has not been a uniform and agreed upon definition of EIA, the range of definitions adopted give an accurate indication of the EIA, its aims, objectives and various concepts within it. From the various definitions of the concept, it is the common understanding that and Environmental Impact Assessment is the assessment of how a project or undertaking may affect the environment. This includes a broad range of projects including conducting an analysis of social and economic aspects of a project, reconciliation of the project to the social and economic aspects and finally trying the findings to the ecological and environment effects that the project will have[5]. Basically, an Environmental Impact Assessment looks at identification, predictions and detailed descriptions the merits and demerits of a proposed project. The results of an EIA are usually presented in a succinct and understandable document known as the Environmental Impact Statement that can be understood by members of the community a decision-makers and the documents should clearly outline the merits and demerits of the project[6]. It is an essential communication tool that informs relevant stakeholders that have a role to play in decision making on the implications of the project and all courses of actions as pertains to the project before they make the decision.

The detailed steps of EIA varies in different jurisdictions, however, there are certain steps and processes that are internationally accepted. These are screening, scoping, impact assessment, mitigation, reporting, reviewing, decision-making and implementation. All these processes are essential especially when it comes to evaluating the practicability and viability of the projects I line with sustainable development. Screening entails conducting a determination as to whether a project required an EIA to be undertaken in full scale and the exact level that the assessment should be. The second step is scoping which entails determination of the exact extent to which the assessment should be undertaken and identification of the important issues that are likely to arise during the EIA. The third step is the Impact assessment which entails identification of how the actions in the proposed project would impact on the environment and ecosystem. Mitigation involves identifying the ways in any negative impacts can be eradicated or minimized. These steps are succeeded by the creation of the report, reviewing of the report, making a decision based on the report and finally, implementing the decision.

Regulatory Framework

In most regional agreements and treaties regarding environmental conservation and even sustainable development, there is silence with regards to whether EIAs are required and if so, what is required from the EIA. In order to fill out the gaps in their regional agreements, most nations preferred to draw on detailed standards stipulated in the international convention surrounding EIA, the ESPOO Convention[7]. This convention has been used to fill out any gaps in existing treaties and agreements when it comes to Environmental Impact Assessment. For instance, the RIO Declaration in Principle 17 mandates parties to undertake an EIA ‘for proposed activities that are likely to have a significant adverse impact on the environment’. Additionally, in order to abide by the precautionary principle, Principle 17 of the Rio declaration sets out a low threshold of proof when determining the essentiality of an EIA[8]. The International Law Commission under Article 7 on the Articles on Prevention of Transboundary Harm from Hazardous Activity mandate the necessity of an EIA when there is the possibility of transboundary harm[9]. The United Nations Convention on the Law of the Sea also outlines that an EIA should be conducted in instances where there are reasonable grounds that  set the belief that the activities planned may cause substantial pollution or significant harmful changes to the marine environment[10].

The  Convention on Environmental Impact Assessment in a Transboundary Concept popularly known as the ESPOO Convention, however, is more cogent in that it sets out the obligations of all parties when it comes to assessing the environmental impact of activities during the early stages of planning[11]. Additionally, the Convention also stipulates that States are required to notify and confer with each other when considering the projects being considered that would possibly have an adverse impacts on the environment across the boundaries. Essentially, the convention stipulates the EIA as an essential tool for sustainable development on three basis. First through promotion of environmental conservation, secondly, through promoting sustainable use of resources by ensuring that any party has to consider the rights of other parties before they undertake any projects and finally, that the EIA should be undertaken in multiple phases to ensure that there are no threats to the environment throughout the project.

Shared resources

One of the most important aspects of sustainable development is that it allows for the sharing of resources equally between two distinct entities. This is an essential aspect of the concept especially when it comes to matter dealing with transboundary natural resources[12]. There are critical instances where the actions of one nation may infringe upon the rights of another nation to enjoy the rights to the shared resources. In addition to that, the International Court of Justice issued a declaration that nations have the obligation to make sure that activities conducted within their jurisdictions respect the environments of other nations.  This determination was made by the International Court of Justice in Argentina v Uruguay in the case concerning the Pulp Mills on River Uruguay[13]. The Republic of Argentina brought forth a complaint under the provisions of the Statute of River Uruguay. The Plaintiffs brought forth the complaint that the defendants had breached the provisions of the statute by constructing, commissioning and operation of two pulp mill son the river. The matter of contention arose from the fact that the effects of these pulp mills would directly contravene the provisions of the Statute that any activities conducted within the course of the river should be looked at in regard to the effects of the activities son the quality of the waters and on the areas affected by the river. The ICJ’s ruling concluded that indeed the defendants had breached the provisions of the treaty by conducting an activity on the river without due consideration to other relevant stakeholders and also without seeking the permission from the stakeholders.

The international Court of Justice had one essential finding with regard to this case. First and foremost, it found that there is a requirement under general international law for countries to undertake and EIA when the proposed activity could have an adverse impact in a transboundary context[14]. This ruling introduced one of the critical roles of the EIA in that it promoted the fact that any stakeholders utilizing shared resources had the right to be involved in the decision making process. An Environmental Impact Assessment would have been essential in the case of Argentina v Uruguay because  it would have ensured not only that all the relevant stakeholders were involved but it would have given the opportunity to the republic of Uruguay to identify potential problems that the mills would have caused on the shared resource that would have ultimately had an impact on Argentina’s right to enjoy the resource.

The requirement to Conduct EIA in multiple phases of the project

One often ignored aspect of EIA is the fact that in order to ensure sustainability, is that it needs not just be conducted on one phase of a project. This is because a blanket EIA undertaken before the beginning of the project may not adequately address certain developments that may have an impact on the viability of the project. Rather, it should be conducted over and over again in different phases of the project.  The ICJ brought forth this argument in the Argentina v Uruguay case where it pronounced that in addition to carrying out an EIA before the implementation of a  project, it would be deemed necessary to carry out and EIA ‘ once operations have started and, where necessary, throughout the life of the project, continuous monitoring of its effects on the environment shall be undertaken’. This was also brought to light in the Gabcikovo-Nagymaros dispute[15]. In this matter, the two countries involved, Hungary and Czechoslovakia signed the Budapest Treaty that was meant to ensure the sharing of the Danube river and a transboundary resource in an equitable and reasonable manner. This treaty entailed the construction of dams and undertaking of other projects. Pursuant to the treaty, the Republic of Czechoslovakia began undertaking damming projects on the Danube river but due to Economic reasons, Hungary was unable to proceed with the projects. Considering the change in situation, it was essential that Czechoslovakia conducts an EIA to establish whether their project would impact on the other watercourse state. The ruling by the ICJ was clear in communicating that any development must be made in consideration of the other resource sharing states and the developments should be undertaken in an equitable and reasonable basis. Most importantly, it brought to light the fact that the change in circumstance was enough to warrant a new assessment to determine that the projects would still not infringe on the rights of other nations to enjoy the resources.

Evaluation of EIA in Sustainable Development- Prospects and Challenges

Prospects

In order to properly tackle the problems surrounding identification and prediction of the impacts of project on the general environment, it is essential to understand the basic nature of the environment such as life processes and how they function in the environment. It is therefore important that even besides the EIA being conducted, there should be other essential factors that should be undertaken[16]. For example, when conducting an EIA on a project that would impact on coastal on marine resources, it would be important to conduct an aquatic baseline study as part of the EIA process. This way, it would ensure that any adverse impacts are recorded in line with the life processes and at early stages in order to ensure that remedial actions could be taken before there is the need to conduct mitigation which may be costly.  Still in line with the sustainable development agenda, it is crucial to accept that EIA would be and essential mechanism that would ensure cost and time saving and for that reason, it is important that it is considered as an integral part of the project and as such, should be included within the project plan as opposed to having it just as an afterthought or a detached portion that has nothing to do with the project[17]. 

Considering the current state of international business, it is only normal to expect that transboundary projects are going to take CenterStage. This then brings to light potential prospects for EIA to take the stage and become a central aspect in ensuring that sustainable development is upheld in these projects. This means that the ESPOO convention needs to be strong enough to ensure that it captures all critical aspects of these interactions. On of the gaps that can be a hindrance towards this activity is the fact that the ESPOO convention does not outline unified terms of reference that would aid in the preparation of EIA reports internationally[18]. This is further hindered by the fact that some nations have their own terms of reference while other do not. Terms of reference and. The important role they play cannot be understated. Terms of reference are essential in terms of definition and scoping of EIA reports. In addition to that, unified terms would be essential when it comes to evaluation of the reports. In cases of transboundary EIAs, having unified terms would ensure that the EIA is properly understood and evaluated.

The final prospect is that transboundary EIA processes have more often than note been left for governments to undertake. However, it is essential that public participation is made an essential aspect of any EIA. This is not only restricted for the purposes of accessing documents b the public, but also by having mechanisms for public hearings where local communities would offer their opinion regarding the processes. While the governments of respective nations may be trusted to conduct EIAs with the interest of the public at heart, it is essential to note that at time governments are driven by economic needs over environmental motives. The ESPOO convention is also silent on public participation when the trust of the matter is that public participation should actually be one of the driving principles of the convention[19]. However, the only factor that could potentially undermine public participation is the fact that due to the content of EIA, and the bulk of the documents, it may be impractical to expect people from the grassroots to understand and effectively participate in such sessions. However, the onus would lie on the government to ensure that the members of the society would get to properly participate in these sessions. Whether it is by having stakeholders build the capacity of said people or by ensuring that there are EIA committees formed and having educated representative of the communities, as long as it is guarantees that there would be adequate representation for the communities. Public participation is an essential aspect because it is also central to sustainable development as it ensures that every member of society is heard, and their views considered.

Challenges

There are certain challenges that would hinder the use of EIA and basically eradicate any possibility of upholding sustainable development. First and foremost, the greatest challenge is that there are inadequate trained personnel. When there are fewer trained personnel, the preparation of EIA reports is hindered and as such, they do not get the opportunity to properly prepare the EIA reports. Additionally, it is essential to ensure that there is public knowledge on EIAs by all members of the society and not just the elite and government officials. This knowledge would extend past the nitty gritty factors on what exactly EIAs are but should also extend to the legal requirements surrounding EIA, the importance of EIA and the merits of conducting EIAs.

One critical challenge lay in the fact that EIAs are constantly evolving. For that reason, newer EIAs have to incorporate more details and this only varies and depends on the industry and the context of the industry. For that reason, it poses a great challenge to every stakeholder. While there are no practical solutions to this problem, it is only important to expect that all stakeholders involved including state and non-state actors to keep themselves updated with regards to the changes of Environmental Impact Assessment.

Conclusion

The importance of taking in consideration the sustainable development in any actions and projects cannot be understated. As such, it is important that any activities sand projects that are undertaken are stark in line with sustainable development and in order to do this Environmental Impact Assessments have been the ideal tools and techniques used for this purpose. This paper was undertaken to establish whether EIA has any significant role to play when it comes to upholding sustainable development. This paper has established that EIA is an important tool when it comes to ensuring that projects undertaken in a transboundary setting not only ensure that there is protection of shared resources but also that all relevant stakeholders are involved in decision making. This paper has identified the ESPOO convention as the most. Cogent international law regarding EIA in transboundary context. However, the law should be revised to ensure that certain important aspects such as public participation and unification of terms are considered.

Bibliography

“Convention Sur l’Évaluation De l’Impact Sur l’Environnement Dans Un Contexte Transfrontière” [2018] Convention on Environmental Impact Assessment in a Transboundary Context (As Amended on 27 February 2001 and on 4 June 2004) 23

“Introduction to Cost–Benefit Analysis” [2018] Cost-Benefit Analysis 1

Arts, Jos et al, “The Effectiveness of EIA as an Instrument for Environmental Governance: Reflecting on 25 Years of EIA Practice in the Netherlands and the UK” [2015] Progress in Environmental Assessment Policy, and Management Theory and Practice 171

Bond, Alan J, “EIA: Embracing the Blast” (2015) 51 Environmental Impact Assessment Review

Charter, Martin, and Ursula Tischner, eds. Sustainable solutions: developing products and services for the future. Routledge, 2017.

Choma, Ernani Francisco and Cássia Maria Lie Ugaya, “Environmental Impact Assessment of Increasing Electric Vehicles in the Brazilian Fleet” (2017) 152 Journal of Cleaner Production 497

Kusters, Cecile et al, “Backmatter – Managing for Sustainable Development Impact” [2017] Managing for Sustainable Development Impact 215

Marsden, Simon, “The Espoo Convention and Strategic Environmental Assessment Protocol in the European Union: Implementation, Compliance, Enforcement and Reform” (2011) 20 Review of European Community & International Environmental Law 267

Rajaeifar, Mohammad Ali et al, “Environmental Impact Assessment of Olive Pomace Oil Biodiesel Production and Consumption: A Comparative Lifecycle Assessment” (2016) 106 Energy 87

Sadler, Barry, and Jiří Dusík. “SEA in Eastern Europe, the Caucasus and Central Asia: implementation of the UNECE Protocol on SEA to the convention on environmental impact assessment in a transboundary context (Espoo Convention) TEA AULAVUO.” In European and International Experiences of Strategic Environmental Assessment, pp. 148-171. Routledge, 2016.

Welford, Richard. Corporate environmental management 3: Towards sustainable development. Routledge, 2016.

Yanush, Maryna, and Jerzy Jendroska. Aarhus and Espoo Conventions: The role in promoting effective public participation in nuclear decision-making. The role of the Aarhus and Espoo Conventions in promoting effective public participation in nuclear decision-making. No. NEA–2017-01-17-19. 2017.

International Law

1991 Convention on Environmental Impact Assessment in a Transboundary Context,

Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397.

ILC, 2001 Articles on Transboundary Harm, Arts. 1, 2(a),

Rio Declaration on Environment and Development UN Doc. A/CONF.151/26 (vol. I); 31 ILM 874 (1992)

Case Law

Gabčikovo-Nagymaros Project, Hungary v Slovakia, Judgment, Merits, ICJ GL No 92, [1997] ICJ Rep 7, [1997] ICJ Rep 88, (1998) 37 ILM 162, ICGJ 66 (ICJ 1997), 25th September 1997, International Court of Justice [ICJ]

Pulp Mills on the River Uruguay, Argentina v Uruguay, Order, Provisional Measures, ICJ GL No 135, [2006] ICJ Rep 113, (2006) 45 ILM 1025, ICGJ 2 (ICJ 2006), 13th July 2006, United Nations [UN]; International Court of Justice [ICJ

[1]Alan J, Bond “EIA: Embracing the Blast” (2015) 51 Environmental Impact Assessment Review A3, A4

[2] “Introduction to Cost–Benefit Analysis” [2018] Cost-Benefit Analysis 1

[3]Ernani Francisco Choma and Cássia Maria Lie Ugaya, ‘Environmental Impact Assessment of Increasing Electric Vehicles in the Brazilian Fleet’ (2017) 152 Journal of Cleaner Production 497, 507.

[4]Cecile Kusters et al, “Backmatter – Managing for Sustainable Development Impact” [2017] Managing for Sustainable Development Impact 215

[5]Mohammad Ali Rajaeifar et al, “Environmental Impact Assessment of Olive Pomace Oil Biodiesel Production and Consumption: A Comparative Lifecycle Assessment” (2016) 106 Energy 87, 102.

[6]Richard Welford (ed), Corporate environmental management 3: Towards sustainable development (Routledge, 1st ed, 2016).

[7]Simon Marsden, “The Espoo Convention and Strategic Environmental Assessment Protocol in the European Union: Implementation, Compliance, Enforcement and Reform” (2011) 20 Review of European Community & International Environmental Law 267

[8] Rio Declaration on Environment and Development, 1992

[9] ILC, 2001 Articles on Transboundary Harm, Arts. 1, 2(a).

[10] Convention on the Law of the Sea, 1982 UNTS 397 (entered into force 1994).

[11] Convention on Environmental Impact Assessment in a Transboundary Context, signed 1991, [1997].

[12] Convention on Environmental Impact Assessment in a Transboundary Context, (As Amended on 27 February 2001 and on 4 June 2004) 23.

[13] Pulp Mills on the River Uruguay (Argentina v Uruguay) (Order Provisional Measures) [2006] ICJ Rep 113.

[14] Ibid

[15] Gabcikovo-Nagymaros Project (Hungary v Slovakia) (Merits) (Judgment) [1997] ICJ Rep 7, 88, 92.

[16] Jos Arts et al, “The Effectiveness of EIA as an Instrument for Environmental Governance: Reflecting on 25 Years of EIA Practice in the Netherlands and the UK” [2015] Progress in Environmental Assessment Policy, and Management Theory and Practice 171, 210.

[17]Martin Charter, and Ursula Tischner (eds), Sustainable solutions: developing products and services for the future (Routledge, 2017).

[18] Barry Sadler, and Jiří Dusík (eds), ‘SEA in Eastern Europe, the Caucasus and Central Asia: implementation of the UNECE Protocol on SEA to the convention on environmental impact assessment in a transboundary context (Espoo Convention) TEA AULAVUO’ European and International Experiences of Strategic Environmental Assessment (Routledge, 1st ed 2016) 148.

[19]Maryna Yanush, and Jerzy Jendroska, ‘Aarhus and Espoo Conventions: The role in promoting effective public participation in nuclear decision-making. The role of the Aarhus and Espoo Conventions in promoting effective public participation in nuclear decision-making’ 2017 International Nuclear Information System.