Environmental Law Service

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 Prunéøov 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 Prunéøov II Power Plant in Czech Republic is a unique example, and we believe it is important to build on this experience.

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