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Environmental Law Service
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  • Date submitted: 27 Oct 2011
  • Stakeholder type: Major Group
  • Submission Document: Download
  • Additional Document:

Implementation of the Transboundary Environmental Impact Assessment principles into the Zero Draft document ? TEIA as a relevant environmental policy instrument for sustainable development

Rio Principles on Transboundary Impact Assessment Should be Strengthened

Achieving sustainable development will require enhancing international cooperation in assessing the environmental impact of economic activities, specifically the impact that may occur due to climate change.
Transboundary environmental assessment procedures are an opportunity for climate-vulnerable countries to consult with local governmental authorities during the planning phases of economic activities about possible impacts that may affect their sustainable future or even their existence.
With the aim to help mitigate the adverse effects of climate change and provide opportunities for vulnerable states to be heard, we call for global discussion on TEIA in relation to (1) climate change impacts, (2) the determination of the methodology and established threshold for triggering the transboundary procedures, and (3) the obligation for States to take action if there is a finding of negative transboundary impacts.
An Environmental Impact Assessment (EIA) (or Strategic Environmental Assessment - SEA) is an important tool for making critical predictions about the costs, risks and benefits involved in a proposed activity. This tool can raise public awareness of the effects of climate change. It can also be a test in determining whether a state has fulfilled its duty of due diligence to avoid causing harm to another state. The importance of the TEIA was recently recognized also by the International Court of Justice judgment Case concerning Pulp Mills on the River Uruguay (Pulp Mills).
In order to improve global climate policy and decision-making with potential climate impact, we propose revisiting the Rio Principles concerning transboundary environmental impact. The principles should be strengthened and applied more consistently to encourage effective participation by climate-vulnerable states in impact assessment procedures.

Practical Challenges in Conducting Transboundary Assessments
While TEIA is firmly established within international law and practice, there are several issues regarding its application.
Firstly, there are no clear and defined standards for the application of EIA in a transboundary context. There are no thresholds for the obligatory assessment setup, and the potential use of the TEIA is in most cases dependant on the national EIA legal provisions. Furthermore, in the context of climate change, there is no methodology on how to assess a project?s impacts on the climate.
Although international agreements about EIA exist, the legal provisions are fragmented and thus the use of EIAs and TEIAs varies from state to state. The application of the TEIA principles should no longer be dependent on national law only. It could be agreed that it is nearly impossible to establish a single comprehensive procedure for impact assessment ?[d]ue to variation in political regimes, natural systems, and cultural values.? Nevertheless, if uniform and consistent standards of TEIA are to be achieved among states, a multilateral cooperation is needed. Possible solutions include the development of TEIA treaties that explicitly cover climate change impacts and, as an initial step, for the states to consider becoming parties to the Espoo Convention and the Protocol on SEA.
Among these challenges another problem exists relating to the notification and consultation procedures. Once it is established that a TEIA is required for a proposed activity, the next challenge is to determine the scope of the EIA and to what extent ?affected states? should be involved in the process. There is no universal rule regarding the procedures governing the notification process and the extent to which an affected state is allowed to participate in the TEIA, if at all. The notification and consultation procedures remain vague for states that are not party to the transboundary agreements.

Case Study: Transboundary Assessment on Climate Impacts
The low-lying island nations are among the states most threatened by climate change. A recent case has demonstrated a possible way for these nations to be included in the decision-making process of the major emitting countries such as the EU Member States.
In a landmark intervention in 2010, the Federated States of Micronesia (FSM) requested a TEIA of the Prunéřov II brown coal-fired power plant in the Czech Republic. It was the first-ever ?transregional? use of transboundary Environmental Impact Assessment (EIA). FSM asserted its right to be heard as a sovereign because the plant?s greenhouse gas emissions may contribute to potential and possible climate change impacts.
FSM was able to participate because the Czech EIA law uses a broad definition of parties eligible to initiate and participate in a transboundary EIA procedure. The Czech law allows any state whose ?territory can be affected by significant environmental impacts? to initiate and participate in a TEIA. In addition, the Czech EIA law requires a project?s developer to include, as an obligatory part of a project?s documentation, an assessment of the project?s climate impact.
While some of the other European countries ? for example, Germany, Netherlands, Austria, Norway, or Sweden ? have EIA laws with similarly broad participation rights, other countries restrict transboundary participation to signatories of the Espoo Convention or members of the EU (in the context of SEA). The island nations, therefore, have inconsistent access to transboundary procedures worldwide.
The Czech Ministry of Environment finally issued an affirmative EIA statement on the project. The statement declares that FSM submitted its viewpoint and it summarizes the fact that FSM expressed its disagreement with the climate protection and the Best Available Technique (BAT) compliance elements of the plan. An assessment of climate impacts of the plan took place and although FSM concerns were officially denied in the final statement, the developer of the plan, the CEZ company, is obliged to save over 5 million tons of CO2 emissions from its other projects over the next 25 years.
FSM?s involvement in the EIA process for the Prunéřov II Power Plant in Czech Republic is a unique example, and we believe it is important to build on this experience.

Conclusion

Climate change is a cross-cutting issue, and there is no common strategy on how to tackle it, nor there is established instrument for addressing its adverse effects. International agreements contain general commitments, but many questions related to mitigation of climate change remain. Needless to say, an easy solution is not in sight. Already, island nations such as FSM are threatened by tidal surges, destruction of food crops, coastal erosion, submersion of islands and reduced water supply to rivers. These environmental threats are likely to be exacerbated by climate change, and affected states cannot afford to wait.
It is our belief that the international community should give guidance regarding current obstacles to effective use of TEIA in the context of climate change. Moreover, in our opinion, TEIA as a cooperative transboundary tool should be firmly established in the system of the international law.
RIO+20 is envisaged as a Conference at the highest possible level having an impact on the whole globe. It is our belief that the promotion of the TEIA within this global forum has its place and can lead to the effective policy instruments that will help us towards a more sustainable future and climate justice. This concept falls under the focus of the Conference that will include the institutional framework for sustainable development. We suggest that the TEIA principles should be included in the Zero draft document and should be included in the later discussion and negotiations during the Conference.

Contacts: Environmental Law Service / Ekologický právní servis, Jan ?rytr, lawyer, jan.srytr@eps.cz

The Environmental Law Service (ELS)
ELS is a public interest law organisation founded in 1995 in Brno, Czech Republic. The vision of ELS is that of a free society that enables everybody to aspire to personal happiness while being aware of their responsibility to the public, including the state of the Earth. ELS lawyers support those who seek to protect their rights and the interests of the public. We protect human rights and advocate the rule of law, the transparency of state power, and the responsibility of corporations for consequences of their actions. ELS has represented pollution victims of ArcelorMittal steel plants, helped Polish municipalities to fight against relocation to give way to Europe's biggest coal mine, assisted Bulgarian grassroot organisations to craft legal strategy against the plans of Dundee Precious Metal company to use cyanide technology in local gold mines, and tested the first ever trans-boundary environmental impact assessment based on climate change concerns, in the case between the Czech Republic and Federated States of Micronesia regarding the biggest Czech coal-fired power plant, Prunéřov.
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