The International Law of Environmental Impact Assessment

The central idea animating environmental impact assessment (EIA) is that decisions affecting the environment should be made through a comprehensive evaluation of predicted impacts. Notwithstanding their evaluative mandate, EIA processes do not impose specific environmental standards, but rely on the creation of open, participatory and information-rich decision-making settings to bring about environmentally benign outcomes.

In light of this tension between process and substance, Neil Craik assesses whether EIA, as a method of implementing international environmental law, is a sound policy strategy, and how international EIA commitments structure transnational interactions in order to influence decisions affecting the international environment.

Through a comprehensive description of international EIA commitments and their implementation within domestic and transnational governance structures, and drawing on specific examples of transnational EIA processes, the author examines how international EIA commitments can facilitate interest coordination, and provide opportunities for persuasion and for the internalization of international environmental norms.

NEIL CRAIK is an associate professor at the Faculty of Law, University of New Brunswick, where he teaches and researches in the fields of international environmental law and domestic (Canadian) environmental law. Prior to his academic appointment, Professor Craik practised environmental and land use law with a major Canadian law firm.

CAMBRIDGE STUDIES IN INTERNATIONAL AND COMPARATIVE LAW

Established in 1946, this series produces high quality scholarship in the fields of public and private international law and comparative law. Although these are distinct legal sub-disciplines, developments since 1946 confirm their interrelation.

Comparative law is increasingly used as a tool in the making of law at national, regional and international levels. Private international law is now often affected by international conventions, and the issues faced by classical conflicts rules are frequently dealt with by substantive harmonisation of law under international auspices. Mixed international arbitrations, especially those involving state economic activity, raise mixed questions of public and private international law, while in many fields (such as the protection of human rights and democratic standards, investment guarantees and international criminal law) international and national systems interact. National constitutional arrangements relating to ‘foreign affairs’, and to the implementation of international norms, are a focus of attention.

   The Board welcomes works of a theoretical or interdisciplinary character, and those focusing on the new approaches to international or comparative law or conflicts of law. Studies of particular institutions or problems are equally welcome, as are translations of the best work published in other languages.

   A list of books in the series can be found at the end of this volume.

The International Law of
Environmental Impact Assessment

Process, Substance and Integration

Neil Craik

University of New Brunswick

CAMBRIDGE UNIVERSITY PRESS
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Cambridge University Press
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Published in the United States of America by Cambridge University Press, New York

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© Neil Craik 2008

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First published 2008

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Contents

Acknowledgments

I am grateful to a large number of colleagues, friends and family for their encouragement, support and guidance during the preparation and drafting (and redrafting) of this book. Foremost among those are the members of my doctoral dissertation (upon which this book is based) committee at the University of Toronto, consisting of my supervisor, Jutta Brunnée of the Faculty of Law, as well as Steven Bernstein of the Political Science Department, and Karen Knop and Lorne Sossin, both of the Faculty of Law. The committee’s comments on earlier drafts and their critical questioning over the course of our many meetings improved the completed project immeasurably, and their encouragement and intellectual generosity were appreciated more than they know. I cannot adequately express the debt of gratitude I owe Jutta Brunnée. Not only did she expertly guide me through the project, she has provided me with the very best example of the kind of scholar I strive to become. Professor Ellen Hey of Erasmus University Rotterdam acted as the external appraiser of the thesis. Her constructive comments and insights were of great assistance to me in the subsequent revision of the draft manuscript. I also benefited from the comments of three anonymous reviewers for Cambridge University Press.

   This book profited from my participation in the 2002 Academic Council of the United Nations System/American Society of International Law Summer Workshop in Windhoek, Namibia, where I presented a very early version of the ideas contained in the book, and I am grateful to the participants of that workshop for their helpful input. I would also acknowledge the kind assistance of officials from the Canadian Environmental Assessment Agency, the Canadian Department of Foreign Affairs and the Espoo Convention Secretariat, who shared their insights and answered my inquiries.

   During my three years in residence at the Faculty of Law at the University of Toronto, I received generous financial support from both the Faculty and the University.

   I have also benefited from the support of my colleagues at the University of New Brunswick Faculty of Law, and particularly Dean Philip Bryden, who ensured that I had sufficient time and resources to complete the book. Tracey Pennell (LLB, 2005) and David Yarwood (LLB, 2007) provided excellent editorial assistance in the latter stages of the project.

   Although he was not involved in this project, Alan Boyle of the Edinburgh University Faculty of Law inspired my interest in international environmental law during my LLM studies under his supervision and continued in his support of my academic career long after I left Edinburgh.

   I am grateful to the editorial and production staff at Cambridge University Press, particularly Finola O’Sullivan and Richard Woodham.

   Finally, I would like to thank my family, particularly my parents, Fergus and Anne Craik, and my children, Lauren and William, for their support and forbearance. But my greatest thanks go to my spouse, Janet Craik. She was often the sounding board for many of the ideas in this thesis, and without question the quality of this project was greatly improved by my many discussions with her. Without her support, this project would never have been started, let alone completed. I am entirely indebted to her.

   This book is dedicated to my parents.

Table of cases

Canada

Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), [1991] 1 FC 641 (CA) 32

   River Tlingit First Nation v. British Columbia (Project Assessment Director), 77 BCLR (3d) 310, 34 CELR (NS) 209 (BCSC), aff’d (2002), 211 DLR (4th) 89, 98 BCLR (3d) 310 (BCCA), rev’d [2004] 3 SCR 550 267

Sumas Energy 2 Inc. v. Canada (National Energy Board), [2005] FCJ No. 1895 50, 210, 211, 261

United States

All Indian Pueblo Council v. US, 975 F 2d 1437 (10th Cir. 1992) 36

Andrus v. Sierra Club, 442 US 347 (1979) 46

Born Free USA v. Norton, 2003 US Dist. LEXIS 13770 (DDC 2003) 46

Calvert Cliffs’ Co‐ordinating Committee Inc. v. United States Atomic Energy Commission, 449 F 2d 1109 (DC Cir. 1971) 31, 140

Center for Biological Diversity v. National Science Foundation, 2002 WL 31548073 (ND Cal. 2002) 46, 50, 206

Environmental Defense Fund Inc. v. Massey, 986 F 2d 1345 (DC Cir. 1981) 50, 206

Government of the Province of Manitoba v. Norton, 398 F Supp 2d 41 (DDC 2005) 49, 51

Izaak Walton League of America v. Marsh, 655 F 2d 346 (DC Cir. 1981) 36

Marsh v. Oregon Natural Resources Council, 490 US 360 (1988) 36, 94, 152

Maryland National Capital Park and Planning Commission v. United States Postal Service, 487 F 2d 1029 (DC Cir. 1973) 36

Missouri v. Illinois, 200 US 496 (1906) 61

Natural Resources Defense Council v. Department of the Navy, 2002 WL 32095131 (CD Cal. 2002) 46, 50, 206

Natural Resources Defense Council v. Hodel, 865 F 2d 288 (DC Cir. 1988) 36, 94

New York v. New Jersey, 256 US 296 (1921) 61

People to Save the Sheyenne River v. North Dakota, 2005 ND 104 (NDSC 2005) 49

Robertson v. Methow Valley Citizens Council, 490 US 332 (1989) 5, 33

Swinomish Tribal Community v. Federal Energy Regulation Commission, 627 F 2d 499 (DC Cir. 1980) 45, 240

Wilderness Society v. Morton, 463 F 2d 1261 (DC Cir. 1972) 45, 240

United Kingdom

R. (on the application of Friends of the Earth Ltd and Greenpeace Ltd) v. Secretary of State for Environment, Food and Rural Affairs and the Secretary of State for Health, [2001] EWCA Civ 1847; [2002] 1 CMLR 21; [2001] 50 EGCS 91; [2002] Env LR 24; [2001] NPC 181 7

European Community

Case C‐459/03, Commission v. Ireland, Judgment May 30, 2006 8, 116

International courts and tribunals

Alabama Claims Arbitration (1872) 1 Moore’s International Arbitration Awards 485 63

Corfu Channel Case (United Kingdom/Albania), (1949) ICJ Rep 4 62–63

Fisheries Jurisdiction Case (United Kingdom/Iceland), (1974) ICJ Rep 3 70

Gabcikovo‐Nagymaros Project (Hungary/Slovakia), (1997) ICJ Rep 7 67, 80–81, 89, 108, 111, 113–114, 117, 119, 128, 153, 154, 196, 200, 203, 259, 261, 263

Gulf of Maine Maritime Delimitation Case (Canada/United States), (1984) ICJ Rep 292 70

Kasikili/Sedudu Island Case (Botswana/Namibia), (1999) ICJ Rep 1045 128

Lac Lanoux Arbitration (France v. Spain), (1957) 24 ILR 101 61, 68, 70, 71, 73

Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria) (2002) ICJ Rep 128

Land Reclamation by Singapore in and Around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, unreported, online: www.itlos.org 89, 118, 146, 155, 234

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (1996) ICJ Rep 15 60

Malta/Libya Continental Shelf Case, (1985) ICJ Rep 39 75

MOX Plant Case (Ireland v. United Kingdom) (OSPAR Arbitration), Final Award, July 2, 2003, unreported, www.pca‐cpa.org (PCA) 8, 115, 120, 126, 127, 128–129, 203, 234, 246

MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, (2002) 41 ILM 405 (ITLOS) 8, 89, 115, 120, 126, 128–129, 203

MOX Plant Case (Ireland v. United Kingdom), unreported, www.pca‐cpa.org (Annex VII Arbitration) 8, 10, 67, 115–117, 120, 126, 128–129, 146, 200, 203, 234

North Sea Continental Shelf (Germany/Denmark, Germany/Netherlands), (1969) ICJ Rep 3 70, 114, 124

Nuclear Tests Case (New Zealand v. France), (1974) ICJ Rep 457 67, 89, 111, 117, 120, 144

Pulp Mills on the River Uruguay (Argentina v. Uruguay) (2006), unreported, www.icj‐cij.org (ICJ) 119

Request for an Examination of the Situation in Accordance with the Court’s Judgment of December 1974 in the Nuclear Tests (New Zealand v. France) Case, (1995) ICJ Rep 288 67, 89, 112 114, 117, 120, 144

Trail Smelter Arbitral Decision (United States v. Canada), 3 RIAA 1905, reprinted in (1939) 33 AJIL 182 (decision dated April 16, 1938) and in (1941) 35 AJIL 684 (final decision dated March 11, 1941) 59, 60–61, 62

Table of international instruments

Treaties

Agreement between United States and Canada on Air Quality, Ottawa, March 13, 1991, Can TS 1991 No. 3, 30 ILM 676, entered into force March 13, 1991 69, 99, 143, 202

Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, New York, July 28, 1994, UN Doc. A/RES/48/263, entered in force November 16, 1994 110

Antarctic Treaty, Washington, December 1, 1959, 402 UNTS 71, reprinted in (1980) 19 ILM 860, entered into force June 23, 1961 101, 103

ASEAN Agreement on the Conservation of Nature and Natural Resources, Kuala Lumpur, July 9, 1985, 15 EPL 64, not yet in force 99

Charter of the United Nations, San Francisco, June 26, 1945, Can TS 1945 No. 7, entered into force October 25, 1945 70

Convention for Co‐operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region, Abidjan, March 23, 1981, 20 ILM 746, entered into force August 5, 1984 97

Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, Cartagena de Indias, March 24, 1983, 22 ILM 221, entered into force October 11, 1986 97

Convention for the Protection of the Marine Environment and Coastal Area of the South‐East Pacific, Lima, November 12, 1981, International Environmental Legal Materials and Treaties 981, entered into force May 19, 1986 97

Convention for the Protection of the Marine Environment of the North‐East Atlantic, Paris, September 22, 1992, 32 ILM 1072, entered into force March 25, 1998 6, 103

Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, Noumea, New Caledonia, November 25, 1986, 26 ILM 25, entered into force August 22, 1990 97

Convention on Access to Information, Public Participation in Decision‐Making and Access to Justice in Environmental Matters, Aarhus, Denmark, June 25, 1998, 38 ILM 517, entered into force October 30, 2001 127, 147, 205, 234

Convention on Environmental Impact Assessment in a Transboundary Context, Espoo, Finland, February 25, 1991, 30 ILM 802, entered into force January 14, 1998 7, 14, 47, 48, 77, 101–105, 107, 116, 125, 126, 129, 130, 133, 134–135, 138, 139–141, 141–143, 146–150, 150–153, 153–155, 155, 157–159, 159–160, 162–165, 170, 195–196, 196–198, 199, 200–201, 202, 207, 209, 225, 231, 233, 234, 240, 245, 260, 261, 262, 263, 265, 271, 273–274, 277

Convention on International Trade in Endangered Species of Wild Flora and Fauna, Washington DC, March 3, 1973, 993 UNTS 243; 12 ILM 1055, entered into force July 1, 1975 51

Convention on Long Range Transboundary Air Pollution, Geneva, November 13, 1979, 18 ILM 1442, entered into force March 16, 1983 61, 69, 130, 169

Convention on Migratory Species, Bonn, Germany, June 23, 1979, 19 ILM 15 (1979), entered into force November 1, 1983 210

Convention on the Conservation of Migratory Species of Wild Animals (1980) 19 ILM 15, entered into force November 1, 1983 107

Convention on the Protection and Use of Transboundary Watercourses and Lakes, Helsinki, March 17, 1992, 31 ILM 1312, entered into force October 6, 1996 100, 130

Convention on the Protection of the Black Sea Against Pollution, Bucharest, April 21, 1992, 32 ILM 1110 (1993), entered into force January 15, 1994 97, 145

Convention on the Protection of the Marine Environment of the Baltic Sea Area, Helsinki, April 9, 1992, entered into force January, 17, 2000 97, 145

Final Act of the Conference on Security and Co‐operation in Europe, 14 ILM 1307 (1975) 101

Framework Convention for the Protection of the Marine Environment of the Caspian Sea, Tehran, November 4, 2003, entered into force August 12, 2006, www.caspianenvironment.org/newsite/Convention‐FrameworkConventionText.htm 97

Kuwait Regional Convention for Co‐operation on the Protection of the Marine Environment from Pollution, Kuwait, April 24, 1978, 1140 UNTS 133, 17 ILM 511 (1978), entered into force July 1, 1979 96, 97

Nordic Environmental Protection Convention, Stockholm, February 19, 1974, 13 ILM 591, entered into force October 5, 1974 55, 56

North American Agreement on Environmental Co‐operation, Ottawa, September 14, 1993, 32 ILM 1480, entered into force January 1, 1994 104

Protocol on Environmental Protection to the Antarctic Treaty, Madrid, October 4, 1991, 30 ILM 1461, entered into force January 14, 1998 61, 104, 133, 136, 139, 141, 144, 154–155

Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context, adopted May 21, 2003, not in force, www.unece.org/env/eia/ sea_protocol.htm 157

Ramsar Convention on Wetlands of International Importance, Ramsar, Iran, February 2, 1971, 996 UNTS 245; 11 ILM 963, entered into force December 21, 1975 209–210

Regional Convention for the Conservation of the Red Sea and Gulf of Aden Environment, Jeddah, Saudi Arabia, February 14, 1982, 9 EPL 56, entered into force August 20, 1985 97

Treaty Concerning the Construction and Operation of the Gabcikovo‐Nagymaros System of Locks, Budapest, September 16, 1977, Czechoslovakia/Hungary, 1109 UNTS 235, entered into force June 30, 1978 113

Treaty Establishing the European Community, Rome, March 25, 1957, OJ C325, entered into force January 1, 1958 35

United Nations Convention on Biological Diversity, Rio de Janeiro, June 5, 1992, 31 ILM 818, entered into force December 29, 1993 14, 79, 88, 99–100, 103, 105–106, 130, 133, 162, 165, 170, 200, 206, 216, 236, 239–240, 264

United Nations Convention on the Law of the Sea, Montego Bay, December 10, 1982, 21 ILM 1261 (1982), entered into force November 16, 1984 63, 97, 88, 145

United Nations Convention on the Non‐Navigational Uses of International Watercourses, New York, May 21, 1997, 36 ILM 719, not yet in force 69, 100–101, 124

United Nations Framework Convention on Climate Change, New York, May 9, 1992, 31 ILM 851 (1992), entered into force March 21, 1994 79, 99, 100, 111, 162, 165, 170, 206, 215

Vienna Convention for the Protection of the Ozone Layer, Vienna, March 22, 1985, (1990) UKTS 1; 26 ILM 1529 (1987), entered into force September 22, 1988 61, 163

Vienna Convention on the Law of Treaties, Vienna, May 23, 1969, 1155 UNTS 331, entered into force January 27, 1980 70, 126

Other international instruments

1997 Guidelines for Environmental Impact Assessment in the Arctic, adopted by the Arctic Council in the 1997 Alta Declaration on the Protection of the Arctic Environmental Protection Strategy, http://finnbarents.urova.fi/aria/ 107, 137, 197, 210

Action Plan for the Protection and Development of the Marine Environment and the Coastal Areas of Bahrain, Iran, Iraq, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates, 17 ILM 501 97

Co‐operation between States in the Field of the Environment, GA Res. 2995 (XXVII), UN GAOR, 27th Sess., Supplement No. 30 (1972) 91

Co‐operation in the Field of Environment Concerning Natural Resources Shared by Two or More States, GA Res. 34/186, UN GAOR, 34th Sess. (1979) 121

Draft Articles on Prevention of Transboundary Harm, in Report of the International Law Commission, Fifty‐Third Session, UN GAOR, 56th Sess., Supplement No. 10, UN Doc. A/56/10 (2001) 370 61–64, 65–67, 72, 73–74, 76, 123, 140, 263, 265

Draft North American Agreement on Transboundary Environmental Impact Assessment, http://cec.org/pub_info_resources/law_treat_agree/ 104

Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities, UN Doc. A/CN.4/L662 66

Guidelines for Incorporating Biodiversity-Related Issues into Environmental Impact Assessment Legislation and/or Processes and in Strategic Environmental Assessment, Report of the Sixth Meeting of the Conference of the Parties to the Convention on Biological Diversity, UN Doc. UNEP/CBD/COP/6/7, Annex 105–106, 107, 137, 150, 155, 156, 161, 166, 198, 209–210, 221, 223

Memorandum of Understanding between the Washington State Department of Ecology and the British Columbia Environmental Assessment Office, June 20, 2001, http://www.eao.gov.bc.ca/publicat/MOU‐Wash_st‐EAO_2004/mou‐2003.pdf 201

OECD, “Recommendation on the Assessment of Projects with Significant Impact on the Environment,” May 8, 1979, C(79)116 121

OECD, “Recommendation of the Council for Strengthening International Co‐operation on Environmental Protection in Frontier Regions,” September 21, 1978, C(78)77 56

OECD, “Recommendation of the Council on Equal Right of Access in Relation to Transfrontier Pollution,” May 11, 1976, C(76)55 Final 56

OECD, “Recommendation of the Council on Principles Concerning Transfrontier Pollution,” November 14, 1974, C(74) 224 56

OECD, “Recommendations on the Implementation of a Regime of Equal Access and Non‐Discrimination in Relation to Transfrontier Pollution,” May 17, 1977, C(77)28 Final 56

Principles on Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States (“UNEP Draft Principles of Conduct”), 17 ILM 1094 (1978) 91–93, 121, 133

Report of the United Nations Conference on Environment and Development, Annex II (“Agenda 21”), UN Doc. A/Conf.151/26 (vol 1) 77

UNEP Goals and Principles of Environmental Impact Assessment, UNEP Res. GC14/25, 14th Sess. (1987), endorsed by GA Res. 42/184, UN GAOR, 42nd Sess., UN Doc. A/Res/42/184 (1987) 77, 93, 141

UNEP Principle on Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States, 17 ILM 1094, UN Doc. UNEP/IG12/2 (1978) 133

United Nations Conference on Environment and Development, Rio Declaration on Environment and Development, June 14, 1992, UN Doc. A/Conf.151/5/Rev.1, reprinted in 31 ILM 874 (1992) 60, 65, 67, 78, 80, 88, 124, 146, 149–150, 156, 215–216, 223

United Nations Conference on the Human Environment, Stockholm Declaration, June 16, 1972, UN Doc. A/Conf.48/14, reprinted in 11 ILM 1416 (1972) 60, 69, 91

World Charter for Nature, GA Res. 37/7, UN GAOR, 37th Sess., UN Doc. A/Res/37/7 (1982), reprinted in 22 ILM 455 (1983) 92

European Community documents

EC, Council Directive 85/337 on the Assessment of the Effects of Certain Public and Private Projects on the Environment, OJ 1985 L175/40, amended by EC, Council Directive 97/11, OJ 1997 L73/5, and by EC, Council Directive 03/35 7, 8, 27, 29, 48, 50, 93, 116, 129

EC, Council Directive 90/313 on the Freedom of Access to Information on the Environment, OJ 1990 L158/56 127

EC, Council Directive 01/42 on the Assessment of the Effects of Certain Plans and Programmes on the Environment, OJ 2001 L197/30 155

Euratom, Directive 96/27/Euratom Laying Down Basic Safety Standards for the Protection of the Health of Workers and the General Public Against the Dangers Arising from Ionizing Radiation, OJ 1996 L159/1 9