GIVING SUBSTANCE TO FORM

MOVING TOWARDS AN INTEGRATED GOVERNANCE MODEL OF TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT

ALEXANDER LANGSHAW

ABSTRACT This article addresses the distinction drawn by the International Court of Justice in its judgment in the Pulp Mills Case between procedural and substantive obligations in relation to transboundary environmental impact assessment (TEIA). Challenging the presumption that procedural obligations are fundamentally linked with the broader substantive goals of TEIA, this paper contends that this will only be the case where a focus on a strong role for public participation can serve to mitigate the information asymmetries endemic to TEIA processes. Longer-term reform strategies, incorporating a threefold focus upon procedural obligations, substantive standards and effective enforcement processes, are also explored.

KEYWORDS International Environmental Law Environmental Impact Assessment Pulp Mills Case Public Participation Transboundary Environmental Regulation

I think the emphasis on the redemptive quality of procedural reform is about nine parts myth and one part coconut oil - Joseph Stax1

1. Introduction
With the recent decision by the International Court of Justice (ICJ) in the Pulp Mills Case2, there now appears to be a duty to conduct a transboundary environmental impact assessment (TEIA) where a proposed activity carries a risk of a significant adverse transboundary impact. However, apart from requiring the exercise of due diligence, the ICJ declined to hold any substantive requirements of this duty, rather placing the onus upon States to define the extent of the TEIA to be undertaken. Further, the ICJs separation of substantive and procedural requirements within the judgment of that case implicitly suggests this requirement is purely procedural. This article will seek to challenge the presumption which exists in much of the broader discourse on TEIA that such procedural obligations are fundamentally tied to the broader substantive goal of environmental protection. The dissemination of information and increased transparency of procedures, rather than being fundamentally tied to improved environmental outcomes, can ultimately conflict with this overarching purpose. Acknowledging a constructivist conception of transparency, it will be suggested that the particular forms of knowledge constructed by TEIA operate in the service of existing socio-political power structures, and as such procedural requirements alone retain a limited potential for catalysing broader substantive achievements. This is not to argue that TEIA is fruitless, nor that its enshrinement in customary international law does not represent a significant development. Rather, it is to argue for a recognition of unequal power structures within the TEIA process in order to provide impetus for their explicit acknowledgement and mitigation. This article proposes that it is crucial that public participation be enshrined as central to the TEIA process, along with the inclusion of environmental nongovernmental organisations (ENGOs), in order to help mitigate the fundamental power imbalances within TEIAs information systems. The strong, cross-border integration of a broadly strengthened civil society within the TEIA process is crucial to maintaining realistic checks on the process and on shifting control on the TEIA discourse concerning individual projects away from the State(s). Whilst international environmental law is often set against State sovereignty, this is primarily a result of the States position as a central
1 2

Speaking on the US enactment of the National Environmental Policy Act of 1969 102, 42 USC 4332 (2000). Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 60 (Pulp Mills Case).

repository of power. In the long-term, broader governance shifts will be necessary to address broader global environmental problems, however in the realistic short-term, the centrality of the State in environmental processes can be somewhat balanced by reinforcing procedural obligations with minimum substantive requirements and the inclusion of a strengthened and more inclusive civil society within the TEIA process.

2. A New Principle of Customary International Law

As of 20 April 2010, it now appears that customary international law requires States to undertake a TEIA procedure with regard to proposed activities carrying a risk of a transboundary impact. Whilst the ICJ ultimately decided the legal merits of the Pulp Mills Case on a close interpretation of the 1975 Statute of the River Uruguay3 (the 1975 Statute), it also continued a long tradition of important obiter dicta statements by discussing the requirements which customary international law placed upon States with respect to TEIA. During a consideration of the obligations of the Parties under the 1975 Statute, the Court found that TEIA had
in recent years has gained so much acceptance among States that it may now be considered a requirement under general international law 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.4 5

However, there is a significant lack of clarity regarding the substance of this duty. While the ICJ equated it to one of due diligence, and the duty of vigilance and prevention which it implies,6 it then highlighted that customary international law fails to specify the scope and content of an environmental impact assessment.7 Rather than incorporating specific procedural requirements into this duty, the ICJ held that
it is for each State to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case, having

Statute of the River Uruguay, Argentina-Uruguay, signed 26 February 1975, 1295 UNTS 340 (entered into force 18 September 1976). 4 Pulp Mills Case, supra note 1, para. 204. 5 It should be noted that some have strongly questioned the existence of sufficient State practice to support this finding. See, eg., D. Bodansky, Customary (and Not So Customary) International Environmental Law 3 Indiana Journal of Global Legal Studies (1995) pp. 110-115; J. Knox, The Myth and Reality of Transboundary Environmental Impact Assessment 96 American Journal of International Law (2002) p. 294; T Merrill, Golden Rules for Transboundary Pollution 46 Duke Law Journal (1997) p. 937. 6 Pulp Mills Case, supra note 1, para. 204. 7 Ibid, para. 205.

regard to the nature and magnitude of the proposed development and its likely adverse impact on the environment as well as to the need to exercise due diligence in conducting such an assessment. 8

This raises central questions over the significance of the ICJs finding, given that one may interpret this decision as emptying the duty to conduct a TEIA of any content under international law and instead deferring to the internal mechanisms of States regardless of how extensive and effective they may (or may not) be. At least one commentator has found this strict legalistic decision rather disappointing because the international instruments that tackle the issue of the [T]EIA certainly provide for a pattern that could be identified by the ICJ so as to sketch the content of the obligation on an international level.9 Indeed, Argentina itself argued for the existence of binding procedural requirements under customary international law to consider practical alternatives and to consult affected populations, both on the basis of the Espoo Convention10 (to which neither State is Party) and soft law instruments.11 The obvious counter to this argument is that it places an unrealistic expectation on the ICJ, a body which has neither mandatory jurisdiction12 nor a primary role in legal development13 but which is confined to a fundamentally limited role. However, a broader contagion exists in the ICJs decision, namely the definite separation it deems to exist between substantive and procedural obligations,14 merely finding an indeterminate functional link between the two sets of obligations.15 This split is not only highly artificial, but it is particularly dangerous in the context of TEIA as it suggests it to be merely a procedural obligation, rather than a procedural mechanism which is closely intertwined with substantive requirements. It is, as such, unsurprising that this particular element of the decision received heavy criticism from two dissenting judges,16 who described it as missing a golden opportunity to demonstrate [the Courts] ability, and its preparedness, to approach scientifically complex disputes in a state-of-the-art manner.17 This separate opinion acknowledges that the finding of a clear distinction between forms of obligations is not the proper way to pay due regard to the

8 9

Ibid. I. Plakokefalos, Current Legal Developments: International Court of Justice 26 The International Journal of Marine and Coastal Law (2011) p. 177. 10 Convention on Environmental Impact Assessment in a Transboundary Context , opened for signature 25 February 1991, 1989 UNTS 310 (entered into force 10 September 1997) (Espoo Convention). 11 Guidelines of 1987 on Goals and Principles of Environmental Impact Assessment, UNEP GAOR, UN Doc UNEP/Z/ SER.A/9 (16 January 1987). 12 See The Statute of the International Court of Justice, Art. 36(1). 13 Ibid, Art 38(1). 14 See Pulp Mills Case, supra note 1, para. 77. 15 Ibid, para. 79. 16 See Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 60 (Judges Khasawneh and Simma), paras. 2628. 17 Ibid, para. 28.

interrelation of procedure and substance,18 given the extreme elasticity and generality of the substantive principles involved.19 However, as will be seen, the ongoing presumption that respect for procedural obligations [consequently] comes to the forefront as being an essential indicator of whether substantive obligations were or were not breached20 is one with questionable merit which cuts to the core of the continuing relevance of TEIA in achieving the broader substantive goals of (transboundary) environmental protection.

3. Endemic State Interest within TEIA Processes

One of the fundamental presumptions underpinning TEIA is that it is a procedural corollary to the no (significant) harm principle, a substantive obligation of customary international law21 which finds its roots in the 1930s Trail Smelter Arbitration22 and Principle 21 of the 1972 Stockholm Declaration.23 The operation of this transboundary principle is presumed to provide a link between TEIA and the broader aims of environmental protection, by requiring States to discharge a level of due diligence required in order to have adequate information on which to base compliance with this international obligation. For example, a commonly adopted definition24of EIA more broadly indicates that it is
considered a necessary tool in order to give the environment its proper place in the decision-making process by improving the quality of information to decision makers, so that environmentally sensitive decisions can be made [adequately].25

While this definition, contrary to the majoritys approach in the Pulp Mills Case,26 acknowledges a determinate link between the procedural and substantive elements of TEIA, it rests upon core presumptions regarding the rational and impartial decision-making capabilities of State-based institutions. In doing so, it fails to account for the inescapable influence of power structures within
18 19

Ibid, para. 27. Ibid, para. 26. 20 Ibid. 21 See Knox, supra note 4, p. 292 (footnotes 5-8). 22 Trail Smelter Arbitration (USA v Canada) (1938/1941) 3 RIAA 1905. 23 United Nations Conference on the Human Environment, Stockholm Declaration, UN Doc A/Conf.48/14/Rev. 1 (16 June 1972). See also United Nations Conference on Environment and Development, Rio Declaration, UN Doc A/CONF.151/5/Rev.1 (14 June 1992), Principle 2. 24 See, eg, K. Bastermeijer and T. Koivurova (eds.), Theory and Practice of Transboundary Environmental Impact Assessment (Martinus Nijhoff, 2008) p. 1; J. Woodliffe, Environmental Damage and Environmental Impact Assessment in M. Bowman and A. Boyle (eds.), Environmental Damage in International and Comparative Law: Problems of Definition and Valuation (Oxford University Press, 2002) p. 134. 25 United Nations Economic Commission for Europe, Policies and Systems of Environmental Impact Assessment, UN Doc ECE/ENVWA/15.1991, 1. Quoted in Bastermeijer and Koivurova, supra note 24, p. 1. 26 Pulp Mills Case, supra note 1, para. 77.

the procedure as well as the overarching meta-normative and political economic conflicts which are both mirrored in and influenced by the TEIA process.27 Rather than providing impartial and balanced scientific information upon which rational State decisions can be based, simply examining disclosure initiatives according to their own terms of reference may well miss their dependence on wider configurations of political and economic authority.28 The emphasis on TEIA as a purely procedural requirement, in combination with an underlying presumption that such procedures will be objective and effective in realising the broader aims of environmental protection, serve to explain why it appears quixotic to argue that transboundary harm is prohibited under customary international law.29 The extent to which the TEIA process is in de facto subservience to the interests of States can be witnessed in the dispute between the United States and Canada over the construction of the Sumas 2 power plant. The Sumas Energy 2 electric company proposed in 1999 to construct a cogeneration power plant near the US-Canada border in Washington.30 The permitting agency of Washington State conducted an EIA under its State law, which considered its transboundary effects across the Canadian border in addition to its intrastate impact.31 Consideration was made of both Canadian standards and responses from Canadian officials, and the procedure undertaken was even praised by Craik as an exemplar of the integration of pre-existing standards into international EIA processes.32 As a result of the EIA procedure, the permit was issued. However, the plant also required permission from the Canadian National Energy Board to construct a transmission line which crossed the border, as the plant was to serve cities on both sides of the border. The Board declined to merely accept the decision of the Washington authority that the benefits of the project outweighed the environmental costs, and conducted its own comprehensive EIA process covering the whole project, including the air quality impacts of the plant itself. This second EIA resulted in a determination that the Sumas 2 project was unacceptable from an ecological perspective.33

27

A. Gupta, Transparency as Contested Political Terrain: Who Knows What about the Global GMO Trade and Wh y does it Matter? 10:3 Global Environmental Politics (2010) p. 49. 28 M. Mason, Transparency for Whom? Information Disclosure and Power in Global Environmental Governance 8:2 Global Environmental Politics (2008) p. 9. 29 See O. Schachter, The Emergence of International Environmental Law 44 Journal of International Affairs (1991) p. 463. 30 Interestingly enough, the very same State border was at the centre of the Trail Smelter Arbitration. 31 See Washington State Energy Facility Site Evaluation Council, Sumas Energy 2 Generation Facility Final Environmental Impact Statement (2001) <http://www.efsec.wa.gov/Sumas2/eis/feisvol1.shtml>, accessed on 20 June 2011. 32 N. Craik, Deliberation and Legitimacy in Transnational Governance: The Case of Environmental Impact Assessments 38 Victoria University of Wellington Law Review (2007) p. 397. 33 N. Craik, Transboundary Environmental Impact Assessment in North America: Obstacles and Opportunities in Bastermeijer and Koivurova, supra note 24, p. 102.

Whilst Craik concludes that these conflicting outcomes merely suggest the potential for improved coordination of transboundary decision-making processes,34 the fact that they emerged from comprehensive EIA procedures undertaken by two highly-developed States conversely intimates a deeper conflict at play. The emphasis on procedure, as opposed to a focus on substantive environmental outcomes, meant that the Washington body was capable of privileging its significant economic interest in the construction of the plant, whilst Canada, receiving significantly lower benefits from the project, seemingly privileged environmental issues. As Kersten rightly points out, the decisionmakers [sic] were accountable to their own national constituencies and responded appropriately35 by each privileging their individual State interest. The conflicting outcomes of similar EIA procedures lays bare the underlying political and economic interests of States which ultimately skew the outcomes of TEIA processes, yet which are masked by the projection of impartiality which is implied through the TEIA process. Divorcing TEIA from any clear substantive outcomes seriously impinges the capacity of procedure to do little more than act as such a mask. Acknowledgement must be made that the above scenario occurred in the absence of a comprehensive international agreement on TEIA.36 However, the continuing strength of influence exhibited by State interest under the auspices of EIA process may be seen in play under the most comprehensive of existing international agreements on TEIA, the Espoo Convention. While the response to the complex EIA process undertaken under the Espoo Convention concerning the construction of the Baltic Sea Gas Pipeline has generally been positive,37 significant criticisms have been made by certain States, the European Parliament and the Espoo Convention Secretariat. These criticisms further highlight the masking role played by TEIA processes, even at the most extensive and internationally-coordinated level. The Baltic Sea Gas Pipeline is a system for large-scale natural gas transmission between Vyborg in Russia and Greifswald in Germany, to be achieved primarily through the construction of the longest sub-sea pipeline in the world along the floor of the Baltic Sea.38 This pipeline system passes through the jurisdictions of four Parties to the Espoo Convention as well as one signatory (Russia), with potentially-impacted States deemed to also include the other four Baltic Sea coastal
34 35

Ibid. C. Kersten, Rethinking Transboundary Environmental Impact Assessment 34 Yale Journal of International Law (2009) p. 190. 36 See further J. Tweedie, Transboundary Environmental Impact Assessment Under the North American Free Trade Agreement 63 Washington and Lee Law Review (2006) pp. 849910. 37 See, eg, T. Koivurova and I. Plnen, Transboundary Environmental Impact Assessment in the Case of the Baltic Sea Gas Pipeline 25 The International Journal of Marine and Coastal Law (2010) p. 181. 38 The first section of the pipeline is presently under construction and scheduled to enter operation in October 2011, with the second parallel section to then commence construction throughout 2011-2012.

States. This required a hugely complex TEIA procedure conducted under the banner of the Espoo Convention, involving an interplay between the domestic EIA procedures of all nine interested States and an overarching EIA procedure to be prepared by the company responsible, Nord Stream, under the supervision of the international coordinating bodies of the interested States.39 Regardless of its appearance as a comprehensive consideration of environmental issues, however, criticisms of the EIA process point towards the underlying geopolitical and economic issues that were inadequately addressed within the TEIA process yet which nevertheless retained a substantial impact upon the process. The European Parliament, for instance, emphasised concerns that energy security must be regarded as an essential component of the overall security of the European Union,40 before continuing to criticise the TEIA procedure generally. The Espoo Convention Secretariat more explicitly acknowledges the influence of broader State interests, quite separate from the substantive goals of environmental protection, in shaping the outcomes of the TEIA process, stating that
[g]eopolitical issues, economic interests and relations between Parties could influence the pipeline route, thus diminishing the alternatives considered in the EIA. In addition, the pipeline project could significantly influence the regional energy market, affecting countries energy and climate policies and strategies. Finally, a large energy project could also make regional integration more difficult if there is no consensus among affected Parties. All these aspects form parts of the projects strategic dimension.41

These strategic dimensions were endemic to the TEIA process, yet nowhere receive the explicit acknowledgement that the Secretariat suggests. Finland, for example, has a historical security concern over its boundary with Russia, and moreover had a specific individual concern in this case that the pipeline construction in the Russian Federation and Swedish sectors would cause adverse impacts on Finland.42 Yet these individual State interests are manipulated and framed through the TEIA process as merely environmental concerns, ultimately providing a faade under which the classic realpolitik interests such as security and economic interests continue to exert overwhelming

39

An exploration of the nuances of this procedure is beyond the scope of this article. See further Koivurova and Plnen, supra note 37, pp. 162166. 40 European Parliament, Environmental Impact of the planned gas pipeline in the Baltic Sea to link up Russia and Germany (8 July 2008) <http://www.europarl.europa.eu/oeil/FindByProcnum.do?lang=en&procnum=INI/2007/2118>, accessed on 17 June 2011. 41 Economic Commission for Europe, Meeting of the Parties to the Convention on Environmental Impact Assessment in a Transboundary Context, Working Group on Environmental Impact Assessment, Exhange of Good Practices, LargeScale Transboundary Projects, Application of the Espoo Convention to complex activities , 12th mtg (11-13 May 2009), Provisional Agenda Item 5(a). Quoted in Koivurova and Plnen, supra note 37, p. 154. Emphasis added. 42 Koivurova and Plnen, supra note 37, p. 173.

influence. The Secretariat suggested that the Strategic Environmental Assessment (SEA) process43 should include a consideration of the broader political concerns which could impact decisionmaking. While questions are raised about the indeterminacy of any such requirement, and as such the realistic possibility of its implementation,44 this would improve the transparency of the TEIA process given the inevitability that such concerns will hold great sway over the decision-making process. Without an acknowledgement of the extraneous factors affecting environmental decisionmaking, the process obscures the fact that TEIAs easily run into severe difficulties when differences in material interests are substantial. 45

4. Greater Transparency Improving Outcomes?

There has generally been a widespread failure of TEIA procedures to require States to adopt mitigative measures or to decline approval of projects due to environmental impacts,46 which ultimately reflects a failure to achieve the substantive goals which TEIA is presumed to facilitate. Rather, as the US Supreme Court has noted, the emphasis on procedural obligations in EIA processes allows decision-makers to approve even the most environmentally damaging project so long as they have complied with procedural steps in good faith.47 TEIA should hence be primarily construed as a system of disclosure or transparency, as it is designed to provide a decision maker and the public with information about the environmental consequences of a proposal, not to force an environmentally correct decision.48 Yet, as Tol concludes, TEIA helps to improve the environment only when the countries involved take environmental care seriously. 49 As the above examples illustrate, environmental protection is seldom the operative substantive concern for States underpinning the TEIA process, especially when other, more highly-valued interests are at stake. Whilst the express acknowledgement of strategic State interests within the TEIA process would at
43

See Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context (opened for signature 21 May 2003), UNECE, <www.unece.org/env/eai/sea_protocol.htm> (entered into force 11 July 2010). (Kiev Protocol). 44 Koivurova and Plnen, supra note 37, p. 177. 45 E. Furman and M. Hildn, Assessment Across Borders: Stumbling Blocks and Options in the Practical Implementation of the Espoo Convention 21 Environmental Impact Assessment Review (2001) p. 549. 46 See L. Ortolano and A. Shepherd, Environmental Impact Assessment in F. Vanclay and D. Bronstein (eds.), Environmental and Social Impact Assessment (Wiley, 1995) p. 10. Whilst projects are often altered by the end of the EIA process, one cannot presume that environmental concerns rather than political interests were the cause of this in the context of US domestic legislation, see M. Hertz, Parallel Universes: NEPA Lessons for the New Property 93 Columbia Law Review (1993) p. 1704. 47 Robertson v Methow Valley Citizens Council 460 US 332, 350. 48 Knox, supra note 4, p. 298. 49 R. Tol, Book Review: Theory and Practice of Transboundary Environmental Impact Assessment 17:3 Review of European Community & International Environmental Law (2008) p. 353.

least improve the transparency of the process, this still fails in any real way to connect procedural and substantive obligations, a connection which is crucial to the effectiveness of TEIA. A continuing and unwarranted presumption exists which links mechanisms of transparency to substantive outcomes, a presumption that is problematic due both to the masking effect that TEIA processes can be seen exhibiting, obscuring the continued relevance of State interests, as well as the unequal power relations within TEIA processes which diminish the capacity of transparency to amount in any real way to a mechanism of accountability. Central to this failure of accountability is an undue reliance on the underlying liberal institutional presumptions of TEIA that fail to account for the underlying power structures which serve to distort both the provision of information and the ability of disempowered actors to effectively utilise such information. Where substantive obligations are abandoned in favour of merely procedural obligations, the TEIA process is thus bound to become
more a means for legitimizing [sic] rather than interrogating governance institutions and for benchmarking public authorities against procedural check-lists rather than substantive environmental standards.50

While the liberal institutionalist perspective argues that more and better information can promote both better environmental practices and international environmental cooperation, Mason elaborates,
the linkage between transparency and democratic accountability is problematic where state sovereignty and high information costs present significant obstacles to those external individuals and groups seeking to hold domestic actors responsible for the production of transboundary environmental harm or risk.52
51

this fails to

account for both informational and power asymmetries which are endemic to present processes. As

These asymmetries, unless mitigated by substantive obligations, serve to thwart the broader (and oft-presumed) goals of TEIA given the underlying reliance of accountability processes based in transparency on political and not legal means to reach [the] end53 of sufficient consideration of environmental concerns. If one accepts the Foucauldian thesis that there is no power relation without the correlative constitution of a field of knowledge, nor any knowledge that does not

50

M. Mason, Information Disclosure and Environmental Rights: The Aarhus Convention 10:3 Global Environmental Politics (2010) p. 26. 51 See further R. Mitchell, Sources of Transparency: Information Systems in International Regimes 42:1 International Studies Quarterly (1998) pp. 109130. 52 Mason, supra note 29, p. 9. 53 Knox, supra note 4, p. 298.

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presuppose and constitute at the same time power relations,54one can see how the centrality of the State to the information-creating process of EIA further entrenches the constitutive power hierarchy. As will be seen, the transboundary context does little to rectify this position; rather, the lack of substantive obligations placed on States within the TEIA process further entrenches the existing power structures which draw accountability out of the system. Rendering the duty to conduct TEIA as an obligation of effort and not of effect55 does little to mitigate the power structures endemic to the TEIA process and in consequence little to increase State accountability for substantive outcomes.

5. Addressing Power Relations in the TEIA Process

In the face of these power imbalances and broader conflicts over norms, practices and objectives,56 the question is then whether TEIA can reconfigure existing power asymmetries and hence be transformative57 rather than merely reinforcing the centrality of State power structures. Whilst an acceptance of a Foucauldian conception of power renders power central to all knowledge processes, and hence precludes the possibility of an entirely objective process, such power structures can be manipulated and mitigated through the TEIA process. Fundamental to this reconfiguration of power relations within TEIA procedures is the concept of public participation. Be creating a more inclusive process which counters State interests with an empowered civil society, TEIA can more effectively address a broader range of interests and as such potentially achieve greater substantive outcomes. The actual inclusion of civil participation within the process, however, must be much more radical than any procedures currently in place in order to achieve this purpose. It is first important to address an obvious objection to this contention, namely that the enshrinement of radical public participation within the TEIA process merely constitutes another procedural requirement, and adds nothing of substance to the process. The answer to this objection is twofold. Firstly, as will be explored below in detail, in order for this procedure to achieve substantive effect, rather than merely increasing the number of boxes a State must tick in discharging its TEIA obligation, some minimum substantive elements must be provided as a frame
54 55

M. Foucault, Discipline and Punish: The Birth of the Prison (Penguin, 1977) p. 27. C. Kersten, supra note 34, p. 202. See further P. Birnie and A. Boyle, International Law and the Environment (Oxford University Press, 1st ed, 1992) p. 189. 56 A. Gupta, Transparency in Global Environmental Governance: A Coming of Age? 10:3 Global Environmental Politics (2010) p. 7. 57 A. Gupta, supra note 26, p. 33.

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of reference. Secondly, an element of realism must be accepted. This proposal is largely procedural, however it is one alive to the present failures of mere procedure as it is formulated with an explicit recognition of the inherent politicisation of the TEIA process. As can be implicitly observed in the ICJs Pulp Mills decision, in the context of present global governance structures States are highly unlikely to accept strong substantive obligations, particularly in the absence of significant internal pressure.58 Whilst global environmental governance would be ideal,59 in the present environment this is an unrealistic expectation given that the [S]tate is unlikely to be placed on the endangered species list anytime soon.60 As a result, this article will attempt to address the improvement of TEIAs potential to achieve substantive outcomes within the unfortunate restraints of reality, rather than hinging its argument on a utopian world vision. To return to the Espoo Convention, it is apparent that some provision is made for public participation as a procedural obligation within TEIA. Indeed, as noted above, these provisions formed the basis of Argentinas argument in favour of this requirements incorporation into the duty to conduct TEIA under customary international law.61 After a broad, quite indeterminate provision requiring Parties undertaking to permit an opportunity for participation by any external affected public to an equivalent level as in its domestic law,62 two provisions provide the specific procedural requirements within the Conventions TEIA process. Article 3(8) requires that the public in affected areas
likely to be affected be informed of, and be provided with possibilities for making comments or objections on, the proposed activity, and for the transmittal of these comments or objections to the competent authority of the Party of origin.

Additionally, Article 4(2) requires that States distribute the EIA documentation to both local authorities and the public in affected areas and provide for the submission of any resultant comments. While at first sight these provisions may appear to effectively include the broader public within the process, closer examination reveals that both the reliance on internal procedures and the failure to include any explicit role for ENGOS hollow out the potential of the Espoo Convention to

58

This central problem is beyond the scope of this article, but has been dealt with extensively in academic discourse over the past 20 years in particular. For one example in a crowded field, see F. Biermann and K. Dingwerth, Global Environmental Change and the Nation State 4:1 Global Environmental Politics (2004) pp. 812. 59 See D. Hunter et al, International Environmental Law and Policy (Foundation Press, 4th edn, 2011), pp. 203217. 60 K. Lifkin, The Greening of Sovereignty: An Introduction in K . Lifkin (ed.), The Greening of Sovereignty in World Politics (MIT Press, 1998) p. 2. 61 Pulp Mills Case, supra note 1, para. 215. 62 Espoo Convention, supra note 10, Art. 2(6).

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adequately address the need to mitigate power imbalances. 63 For example, whilst all European States grant citizens constitutional or legislative rights to obtain information connected to the EIA process,64 the lack of developed legal frameworks surrounding access to information and judicial review often means domestic procedures ring hollow, particularly in Central and Eastern Europe.65 As States are only held to their own procedural standards with regards to external affected populations, this inadequate domestic framework thus hampers public participation in the TEIA process. The failure to explicitly include ENGOs within the process is even more concerning, as experience suggests the concentration of public voice within these instruments of civil society has far greater potential to challenge State power paradigms and pursue action far beyond the capacity of an unorganised public.66 Indeed, Shabecoff suggests that it may not be too far a reach to conclude that [ENGOs] may be opening the wedge of a new, more open system of international governance.67 The failure to provide mechanisms by which State control over the TEIA process can be challenged by these counterbalancing forces ensures that the Espoo Convention makes no attempt to ensure that the acting state gives [the external publics] voice the same weight as their own citizens but rather leave[s] them to act on lopsided incentives.68 Further, in a transboundary context, ENGOs provide the capacity to extend direct political accountability across borders,69 a valuable function which needs to be harnessed. An acknowledgement of the need for greater participation and transparency within TEIA processes70 has effectively been made in the form of the new Aarhus Convention,71 which has many links with the Espoo Convention and indeed is designed in many ways to bolster the latters effectiveness.72 ENGOs, for example, are given a more significant role,73 thanks largely to their

63

For an example of the limited role of ENGOs under the Espoo Convention, see Kerstens discussion of the exclusion of NGO complaints within the EIA process concerning the Bystroe Channel project in Kersten, supra note 34, p. 199. 64 See P. Williams, International Law and the Resolution of Central and East European Transboundary Environmental Disputes (Macmillan, 2000) p. 195 (footnote 878). 65 Ibid, pp. 193197. 66 Consider, for example, the action against the operation of the Temeln nuclear plant by a consortium of environmental NGOs. Ibid, p. 195. 67 P. Shabecoff, A New Name for Peace: International Environmentalism, Sustainable Development and Democracy (University Press of New England, 1996) p. 77. 68 Kersten, supra note 34, p. 189. See further Knox, supra note 4, p. 304. 69 See Kersten, supra note 34, pp. 200201. An analogy can be drawn here with the impact of NGOs in the human rights field see further M. Keck and S. Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Cornell University Press, 1998). 70 Indeed, within domestic EIA processes as well. 71 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, opened for signature 25 June 1998, 2161 UNTS 447 (entered into force 30 October 2001). (Aarhus Convention). 72 W. Schrage, The Convention on Environmental Impact Assessment in a Transboundary Context in Bastermeijer and Koivurova, supra note 24, p. 43.

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participation in the Conventions negotiation and drafting process.74 Additionally, the Aarhus Convention deals with public participation beyond State decisions on specific activities, dealing with plans, programmes and policies relating to the environment75 and the preparation of executive regulations and/or generally applicable legally binding normative instruments. 76 These are welcome developments which provide some support for Kofi Annans contention that the Aarhus Convention is the most ambitious venture in the area of environmental democracy so far undertaken77 However, the overwhelming focus remains upon a strict rendering of procedural requirements to the detriment of any potential to impose substantive obligations. Whilst Article 1 contains a substantive right of present and future generations to live in an environment adequate to his or her health and well-being,78 the implementation of this substantive right is substantially marginalised in practice as a reflection of a liberal political aversion to prescribe any conception of a good life for individuals who are deemed to exercise freely chosen life-choices.79 The UK, for example, entered a reservation which explicitly expresses a view of Article 1 as a mere aspiration, affording legal recognition only to procedural rights.80 More broadly, even countries without the strong liberal tradition of the UK appear to take a similar, if less explicit, approach.81 This failure to address substantive obligations serves to severely marginalise the practical scope of the inclusion of broader public participation and the integration of ENGOs into the TEIA process, as it fails to counterbalance the States ability to set the paradigms and values upon which the environmental discourse is to rest. The absence of any operative substantive requirements fails to provide grounds for debate based upon substantive environmental outcomes, which reduces the scope for public deliberation on the appropriateness of environmental decision-making according to competing
73

See especially Aarhus Convention, supra note 71, Arts. 2(5), 3(4) and 9(2). See further P. Sands, Principles of International Environmental Law (Cambridge University Press, 2003) pp. 176178. 74 E. Morgera, An Update on the Aarhus Convention and its Continued Global Relevance 14:2 Review of European Community & International Environmental Law (2005) pp. 139140. 75 Aarhus Convention, supra note 71, Art. 7. 76 Ibid, Art. 8. 77 See United Nations Economic Commission for Europe, Introducing the Aarhus Convention <http://www.unece.org/env/pp/>, accessed on 21 June 2011. 78 Aarhus Convention, supra note 71, Art. 1. 79 Mason, supra note 50, p. 25. See further M. Anderson, Human Rights Approaches to Environmental Protection: An Overview in M. Anderson and A. Boyle (eds.), Human Rights Approaches to Environmental Protection (Clarendon Press, 1996) pp. 1012; M. Wissenburg, Green Liberalism: The Free and Green Society (UCL Press, 1998) pp. 1617. 80 See United Nations Treaty Collection, Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters Declarations and Reservations <http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-13&chapter=27&lang=en>, accessed on 21 June 2011. 81 Of 37 implementation reports submitted to the Convention Secretariat in the second round of reporting in 2008 in response to a request to report on Article 1, 13 contain no response and the majority of the rest featured stateme nts that are cursory and vague. See Mason, supra note 50, pp. 2526.

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social values.82 The European Parliaments criticism of the TEIA produced by Nord Stream in regard to its Baltic Sea Gas Pipeline proposal,83 for example, rings hollow in the absence of minimum objective standards against which such an EIA which complied with significant procedural requirements concerning public participation84 can be measured. Whilst representing a significant step forward in opening up the mechanisms of public participation, the Aarhus Convention ultimately addresses symptoms rather than underlying causes of the broader failures endemic to TEIA processes. Mechanisms for greater public participation have the capacity to balance State-based power by empowering a diverse and dynamic civil society, driving a shift towards a much more decentralized [sic] and consensual approach which seeks to coordinate at multiple levels, and which is distinctively polycentric.85 This governance model, with conceptual foundations in Habermas work on communicative rationality,86 is by now well known in the domestic regulatory context.87 However, notions of environmental governance built upon this model still fundamentally rely upon substantive standards to play a steering role, ensuring the increased politicisation of participatory forums remains directed at positive environmental outcomes.88 As a result there must be some substantive requirements, however minimal, placed upon the TEIA process in order to set the foundation for a legitimate advocacy based arena89 in which socio-political conflicts over environmental issues can be formulated and State-based power structures previously concealed under the guise of procedure can be challenged. The central danger here is the limitation of [public] participation in political and social contexts where such notions [of meaningful EIA] become mere lip service to pressures from, say, an aid agency rather than a reflection of democratic

82

Ibid, p. 26. See further D. Jones, Solidarity and Public Participation: The Role of the Aarhus Convention in Containing Environmentally Induced Social Conflict 20:2 Global Change, Peace & Security (2008) pp. 151168. 83 See European Parliament, supra note 40. 84 For an in-depth overview of the specific procedures followed, see Koivurova and Plnen, supra note 37. 85 N Gunningham, The New Collaborative Environmental Governance: The Localization of Regulation 36:1 Journal of Law and Society (2009) p. 146. 86 See further J Habermas, The Theory of Communicative Action (Beacon Press, two volumes, 1985). 87 See, eg, N Gunningham, Environment Law, Regulation and Governance: Shifting Architectures 21:2 Journal of Environmental Law (2009) pp. 179212. 88 For an excellent empirical study on measurable outcomes where such governance frameworks are not backed by substantive requirements, see A Wiersema, A Train Without Tracks: Rethinking the Place of Law and Goals in Environmental and Natural Resources Law 38 Environmental Law (2008) pp. 12391300. 89 B. Koppel, Ripples and Trickles: Impact Assessment and Policy Analysis in Asia 6 Impact Assessment Bulletin (1988) p. 124.

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processes.90 The provision of substantive standards provides a set of proverbial tracks within which political structures can be righted and guided towards real environmental outcomes. Clearly, the transboundary arena is one context where the potential for discourse to lose focus upon outcomes constantly threatens to become a reality. Boundary tribes in North America, for example, possess little standing in the international community regardless of the autonomy afforded them under domestic legislation,91 and as such upwind and upstream international states have little incentive to use political capital to regulate near border polluters whose waste streams would have little or no cognizable [sic] effect on its own citizens.92 Additionally, their position on the border of two States provides these tribes with sometimes less protection than that of tribes located wholly within the territorial integrity of a respected nation. 93 Whilst provision of procedural rights of participation such as those under the Espoo and Aarhus Conventions would at least guarantee them access to the TEIA process, it must be recognised that it is not at all clear that state organization and policy revision are influenced from below as much as they are reinforced by the information from below that they accept.94 The transboundary context is fundamentally skewed towards State interests through their natural position of power on the international stage. The provision of minimum substantive standards, for example, would provide some leverage for boundary tribes within the process, as well as providing a framework upon which they can construct arguments to counterbalance the political and economic interests of the States concerned. This makes the governance model of environmental decision-making all the more crucial at the international level, and embedding participatory frameworks within TEIA processes all the more difficult without a substantive foundation. Procedural requirements of transparency and broad public participation remain desirable elements of TEIA processes, however their present rendering is based upon misplaced assumptions regarding their ability alone to generate outcomes. Nonetheless it should still be noted whilst minimum substantive requirements are highly desirable, as this article emphasises, this demand in isolation stands insufficient to guarantee compliance. Further questions must inevitably arise about who is to design such substantive standards and what their content is to be, amongst others. A fine balance is to be struck in developing standards which are flexible enough to permit deliberative
90

R. Bartlett and P. Kurian, The Theory of Environmental Impact Assessment: Implicit Models of Policy Making 27:4 Policy & Politics (1999) p. 423. 91 P. Lepsch, Ecological Effects Know No Boundaries: Little Remedy for N ative American Tribes Pursuing Transboundary Pollution under International Law 11 Buffalo Environmental Law Journal (2004) p. 64. 92 Ibid, p. 78. 93 Ibid, p. 79. 94 Koppel, supra note 89, p. 124 (emphasis in original).

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frameworks to operate to their fullest extent whilst stringent enough to actually orient such frameworks in the right direction. Although a full discussion of these further issues is beyond the scope of this article, significant legal development occurring in some domestic contexts based upon accepted concepts of international environmental law such as the precautionary principle has some potential to point further work on this area in the right direction.95 Inevitably, these questions of political and legal context will be inextricably linked to the capacity of TEIA to move toward the achievement of its broadest goal of environmental protection.

6. Conclusion: Towards Deliberative Environmental Democracy?

Speaking of the successful co-management of resources more broadly, Reed places four preconditions on successful outcomes: participation by a broad representation of stakeholders; opportunities for strategic and information exchange; shared decision-making an implementation responsibilities; and the establishment of a long-term implementation strategy.96 Whilst these minimum preconditions are indeed central to TEIA achieving successful outcomes, they do not account for the fundamental power relations which privilege State interests (and, indeed, the interests of more powerful States over weaker ones). Similarly, notwithstanding the fact that procedural obligations alone can provide mechanisms to ameliorate this power imbalance, in which respect the Aarhus Convention represents a step forward, they must be supported by substantive standards in order to provide a framework which can mitigate the underlying power struggles within the TEIA process. They must also be supported by a political context in which a strong and vocal civil society exists with a sufficient capacity to organise its disparate and weak individual voices into coherent counter-narratives. As is hopefully clear, none of these elements alone has the capability to ensure TEIA is able to achieve positive substantive outcomes. Rather, they are mutually reinforcing elements with no clear thread of causality; each element serves to augment the whole through positive feedback loops. As a result, the greatest disappointment of the ICJs Pulp Mills decision is not the failure of the Court to attach a requirement of public participation, however central to a successful framework
95

Significant development has, for example, occurred over the last ten years in the domestic Australian context in developing this broad principle into a detailed and binding requirement of both EIA and decision-making. See further L Godden and J Peel, Environmental Law: Scientific, Policy and Regulatory Dimensions (Oxford University Press, 2009) pp. 240267. Cf P Stein, Are Decision-Makers Too Cautious with the Precautionary Principle? 17 Environmental and Planning Law Journal (2000) pp. 323. 96 M. Reed, Locally Responsive Environmental Plan ning in the Canadian Hinterland: A Case Study in Northern Ontario 14 Environmental Impact Assessment Review (1994) pp. 246247.

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of TEIA this may be. Rather, the Courts dangerously artificial separation of procedural and substantive requirements orients legal discourse on TEIA away from an understanding of the fundamental interconnectedness of procedure, substance and context towards a narrow rendering of TEIA as a mere procedural requirement. The decision that declaration by the Court of Uruguays breach of this merely procedural requirement constitutes sufficient satisfaction 97 further reinforces this artificially monadic jurisprudence, contrary to the need for more integrated development of TEIA in order to achieve the broader goals of environmental protection. By turning away from this neatly-categorised jurisprudence, TEIA processes can rather seek to both impose and foster the many exacting demands on public deliberation central to Habermas conception of deliberative democracy.98 While ultimately the TEIA process will remain political rather than legal, 99 the legal framework of TEIA can be better formulated with a recognition of the inextricability of substance and procedure, and as such foster a form of deliberative environmental democracy upon which this legal framework can more effectively operate. By pragmatically broadening its reach beyond dominant, State-based power structures, TEIA can more effectively achieve the broader substantive goals of environmental protection, and by doing so turn Saxs coconut oil into gold.

97 98

Pulp Mills Case, supra note 1, para. 269. A. Sen, The Idea of Justice (Harvard University Press, 2009) p. 43. 99 Knox, supra note 4, p. 319.

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