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

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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 ICJ’s 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 TEIA’s 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 State’s position as a central

1 Speaking on the US enactment of the National Environmental Policy Act of 1969 § 102, 42 USC § 4332 (2000).2 Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) [2010] ICJ Rep 60 (‘Pulp Mills Case’).

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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

3 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.

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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 ICJ’s 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 ICJ’s 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

Court’s] 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 interrelation of procedure and

8 Ibid.9 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. 26–28.17 Ibid, para. 28.

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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 breached”20 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 majority’s 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

18 Ibid, para. 27.19 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.

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institutions. In doing so, it fails to account for the inescapable influence of power structures within

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

27 A. Gupta, ‘Transparency as Contested Political Terrain: Who Knows What about the Global GMO Trade and Why 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.

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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

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

appropriately”35 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

33 N. Craik, ‘Transboundary Environmental Impact Assessment in North America: Obstacles and Opportunities’ in Bastermeijer and Koivurova, supra note 24, p. 102.34 Ibid.35 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. 849–910.37 See, eg, T. Koivurova and I. Pölönen, ‘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.

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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

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 project’s 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

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 2011-2012.39 An exploration of the nuances of this procedure is beyond the scope of this article. See further Koivurova and Pölönen, supra note 37, pp. 162–166.40 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, Large-Scale 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 Pölönen, supra note 37, p. 154. Emphasis added.

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impacts on Finland.”42 Yet these individual State interests are manipulated and framed through the

TEIA process as merely environmental concerns, ultimately providing a façade under which the

classic realpolitik interests such as security and economic interests continue to exert overwhelming

influence. The Secretariat suggested that the Strategic Environmental Assessment (‘SEA’) process43

should include a consideration of the broader political concerns which could impact decision-

making. 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 decision-

making, 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

42 Koivurova and Pölönen, supra note 37, p. 173.43 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 Pölönen, supra note 37, p. 177.45 E. Furman and M. Hildén, ‘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.

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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

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, 51 this fails to

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

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

49 R. Tol, ‘Book Review: Theory and Practice of Transboundary Environmental Impact Assessment’ 17:3 Review of European Community & International Environmental Law (2008) p. 353.50 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. 109–130.52 Mason, supra note 29, p. 9.

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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] end”53 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

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 effect”55 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 transformative”57 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.

53 Knox, supra note 4, p. 298.54 M. Foucault, Discipline and Punish: The Birth of the Prison (Penguin, 1977) p. 27.55 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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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

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

ICJ’s 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

TEIA’s 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 Argentina’s argument in favour of this requirement’s 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 Convention’s 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.”

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. 8–12.59 See D. Hunter et al, International Environmental Law and Policy (Foundation Press, 4th edn, 2011), pp. 203–217.60 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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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

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 public’s] 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.

63 For an example of the limited role of ENGOs under the Espoo Convention, see Kersten’s 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. 193–197.66 Consider, for example, the action against the operation of the Temelín 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. 200–201. 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).

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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 latter’s

effectiveness.72 ENGOs, for example, are given a more significant role,73 thanks largely to their

participation in the Convention’s 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 environment”75 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 Annan’s contention that the

Aarhus Convention is the “most ambitious venture in the area of ‘environmental democracy’ so far

undertaken”77

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

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. 43.73 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. 176–178.74 E. Morgera, ‘An Update on the Aarhus Convention and its Continued Global Relevance’ 14:2 Review of European Community & International Environmental Law (2005) pp. 139–140.75 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. 10–12; M. Wissenburg, Green Liberalism: The Free and Green Society (UCL Press, 1998) pp. 16–17.80 See United Nations Treaty Collection, Convention on Access to Information, Public Participation in Decision-Making 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.

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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 State’s 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

social values.”82 The European Parliament’s 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

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 “statements that are cursory and vague”. See Mason, supra note 50, pp. 25–26.82 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. 151–168.83 See European Parliament, supra note 40.84 For an in-depth overview of the specific procedures followed, see Koivurova and Pölönen, 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. 179–212.88 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. 1239–1300.

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foundation for a “legitimate advocacy based arena”89 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

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.

89 B. Koppel, ‘Ripples and Trickles: Impact Assessment and Policy Analysis in Asia’ 6 Impact Assessment Bulletin (1988) p. 124.90 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 Native 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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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

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

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. 240–267. Cf P Stein, ‘Are Decision-Makers Too Cautious with the Precautionary Principle?’ 17 Environmental and Planning Law Journal (2000) pp. 3–23.96 M. Reed, ‘Locally Responsive Environmental Planning in the Canadian Hinterland: A Case Study in Northern Ontario” 14 Environmental Impact Assessment Review (1994) pp. 246–247.

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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 ICJ’s Pulp Mills decision is not the failure of

the Court to attach a requirement of public participation, however central to a successful framework

of TEIA this may be. Rather, the Court’s 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 Uruguay’s

breach of this ‘merely’ procedural requirement constitutes sufficient satisfaction97 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 Sax’s ‘coconut oil’ into gold.

97 Pulp Mills Case, supra note 1, para. 269.98 A. Sen, The Idea of Justice (Harvard University Press, 2009) p. 43.99 Knox, supra note 4, p. 319.

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