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Environmental Impact Assessment

Principle 17 of the Rio Declaration addresses environmental impact assessment (EIA) in a manner that suggests it is mandatory:

Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.

UNFCCC Article 4(1)(f) obliges all parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, to:

Take climate change considerations into account, to the extent feasible, in their relevant social, economic and environmental policies and actions, and employ appropriate methods, for example impact assessments, formulated and determined nationally, with a view to minimizing adverse effects on the economy, on public health and on the quality of the environment, of projects or measures undertaken by them to mitigate or adapt to climate change....

The UNFCCC, unlike the Rio Declaration, does not say environmental impact assessments, but addresses instead adverse effects on economy, on public health, and on the quality of the environment of the climate change measures themselves. Similarly, Kyoto Article 2(3) is concerned primarily with the adverse effects of climate change measures, especially on developing country parties. Thus, the UNFCCC lacks the EIA obligation of the Rio Declaration. However, all of the UNFCCC parties must now be considered bound to conduct EIAs, in the light of recent developments in customary international law.

In Pulp Mills on the River Uruguay (Argentina v. Uruguay) the International Court of Justice observed that the practice of EIA “has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment 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.”[1] GHG emissions have a significant, adverse, and transboundary impact on the climate, and the climate can be considered a shared resource. However, the Court observed that general international law does not specify the scope and content of an EIA. This qualification makes the obligation less useful.

Nevertheless, general international law, as reflected in draft Article 9(3) of the 2001 draft Articles of the International Law Commission Prevention of Transboundary Harm from Hazardous Activities,[2] requires the State of origin to “take into account the interests of the State likely to be affected in case it decides to authorize the activity to be pursued... ” when a State requests consultations on how to prevent or minimize the risk of transboundary harm.[3] While this norm is procedural, and does not impose substantive obligations, when a State conducts an EIA with respect to activities that risk causing transboundary environmental harm, it is reasonable to conclude that the scope and content of the EIA would have to take into account the risk posed to other States. This does not entitle the affected State to prevent the activity, but it could affect the liability of the State that proceeds with the activity in question.

With respect to unilateral measures to address climate change, the foregoing norms lead us to conclude that a State has an obligation to take into account the impacts of a unilateral measure on other States in the process of designing the measure. Depending on the nature of the measure, there also may be an obligation to consult other States at the design stage.[4] In the case of trade measures, the absence or presence of such an assessment may affect the outcome of the analysis in GATT Article XX and in other WTO provisions that incorporate language from that Article.[5]

  • [1] Pulp Mills on the River Uruguay (Argentina v. Uruguay) (2010) para. 204.
  • [2] International Law Commission, “Prevention of Transboundary Damage from Hazardous Activities” (2001) Yearbook of the International Law Commission Vol. II, Pt. 2 (accessed July 28, 2012).
  • [3] Pulp Mills on the River Uruguay (Argentina v. Uruguay) (2010) paras. 152—4.
  • [4] See e.g. WTO Agreement on Technical Barriers to Trade Art. 2.
  • [5] Ministerial Declaration, Fourth Ministerial Conference, Doha, Qatar, adopted November 14,2001, WT/MIN(01)/DEC/1, November 20, 2001, para. 6, (accessed April 5, 2013).
 
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