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Towards an effective transboundary environmental impact assessment regime for North America Sussex, James Frank 1999

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T O W A R D S A N E F F E C T I V E T R A N S B O U N D A R Y E N V I R O N M E N T A L I M P A C T ASSESSMENT R E G I M E F O R N O R T H A M E R I C A by JAMES FRANK SUSSEX B A . , The University of Washington, 1987 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS in THE FACULTY OF GRADUATE STUDIES (School of Community and Regional Planning) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH COLUMBIA April 1999 © James Frank Sussex, 1999 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of (LOVUVIAUVVH^ cyyuk Qxcjouh ^WwU/tCj The University of British Columbia Vancouver, Canada Date Xlml 7, Jjff DE-6 (2/88) ABSTRACT Threats to the ecological integrity of the biosphere increasingly involve complex cause and effect relationships that transcend political boundaries. Transboundary impacts have become a growing international concern as the scale of human influence on global ecosystems expands and international trade liberalization policies accelerate regional and global economic integration. These political-economic forces are paralleled by a growing recognition that efforts to protect important ecosystem functions often suffer from jurisdictional fragmentation, lack of international cooperation, and environmental management regimes that do not result in environmentally sustainable decision-making. Therefore, the increasing stress on global ecosystems demands more effective international environmental cooperation in order to protect the integrity of transboundary ecosystems and prevent environmental disputes from escalating into international conflicts. The purpose of this thesis is to examine practical and theoretical issues associated with improving the role of EIA as a means of promoting more effective environmental decision-making in multilateral and transboundary contexts. In particular, the analysis focuses on the emerging role of transboundary EIA in the context of North America's increasingly integrated regional economy. The need to develop a more effective North American transboundary EIA regime has become a more urgent policy consideration with the enactment of the North American Free Trade Agreement (NAFTA) in 1994. Therefore, this thesis seeks to define how a conceptual model for transboundary EIA can be designed, based on a comprehensive and well-structured set of objectives, that will improve transboundary environmental decision making in North America. Toward this end, a conceptual model for effective transboundary EIA is developed based on information drawn from an extensive review of relevant literature and discussions with a variety of knowledgeable analysts. The conceptual model for transboundary EIA is then compared to the draft recommendations for transboundary EIA being developed pursuant to Article 10(7) of the North American Agreement for Environmental Cooperation (NAAEC - i.e., the environmental side agreement to NAFTA). Finally, general conclusions are presented with recommendations for further research and improving the effectiveness of a North American transboundary EIA regime. i i TABLE OF CONTENTS ABSTRACT " TABLE OF CONTENTS iii LIST OF FIGURES vii LIST OF TABLES vii APPENDICES vii ACRONYMS viii ACKNOWLEDGMENTS ix CHAPTER 1 - INTRODUCTION 1 1.1 Rationale 2 1.2 Purpose and Objectives of Thesis 5 1.2.1 Purpose 5 1.2.2 Objectives 5 1.3 Research Approach 6 1.4 Overview of Thesis 7 CHAPTER 2 - TRANSBOUNDARY ENVIRONMENTAL DECISION-MAKING: A CONCEPTUAL FRAMEWORK 8 2.1 Transboundary Environmental Decision-making 9 2.1.1 The Ecological Context 10 2.1.2 Sovereignty vs. Ecology 11 2.1.3 Global Commons 13 2.1.4 International Environmental Agreements 14 2.1.5 International Environmental Regimes 18 2.1.6 Summary 19 2.2 Environmental Impact Assessment 20 2.2.1 EIA Terminology 21 2.2.2 Purpose of EIA 22 Procedural versus Substantive Purpose 22 EIA Theory 23 EIA Principles 24 2.2.3 Elements of EIA 25 Preliminary Activities 26 Screening 27 Scoping 27 Mitigation 27 Impact Prediction and Uncertainty 28 Significance Evaluation 28 Participation and Consultation 29 Review of EIA Report 29 Decision-making 30 Monitoring and Follow-up 30 2.2.4 EIA Effectiveness 31 2.2.5 Limitations of EIA 33 Limited Scope of Application 34 iii 2.2.5 Limitations of EIA 33 Limited Scope of Application 34 Political Impediments 34 Inadequate Consideration of Values 35 Evaluating Signficance 36 Addressing Uncertainty 37 Unreliability of Mitigation Measures 38 Insufficient Follow-up and Compliance 38 Lack of Objectivity and Quality Control 38 Procedural Versus Substantive Application of EIA 39 Relationship of EIA to Decisionmaking 39 Relationship of EIA to Planning and Environmental Policies 40 Failure to Promote Sustainability 41 Inefficient Implementation 42 2.2.6 Improving EIA Policy and Practice 42 2.2.7 The Internationalization of EIA 44 2.2.8 Summary 47 2.3 Transboundary EIA 48 2.3.1 Defining Transboundary EIA 48 2.3.2 Objectives of Transboundary EIA 50 2.3.3 Purpose of Transboundary EIA 50 2.3.4 Existing Transboundary/Multilateral EIA Regimes 51 The Espoo Convention 52 The E C Directive 85/337 53 Antarctic Protocol 54 Cuixmala Treaty 55 UNEP EIA Guidelines 56 2.3.5 Comparative Analysis 57 2.3.6 Limitations of Transboundary EIA 58 EIA Process Not Legally Binding on Decision Makers 59 Lack of Supranational Enforcement Authority 60 Lack of Substantive Specificity 61 Political Vulnerability 61 Inadequate Institutional Capacity for Implementation 62 Limited Scope of Application 62 2.4 Alternative Approaches to International Environmental Decision-making 62 2.4.1 Decision Analysis 63 Integrating Decision Analysis with EIA 64 2.4.2 Informed Negotiated Consent 67 2.4.3 Localized Collaborative Institutions 68 2.4.4 Analytic Deliberation 70 2.4.5 Characteristics of Alternative Approaches 71 2.5 Summary 72 CHAPTER 3 - CONCEPTUAL MODEL FOR EFFECTIVE TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT 74 3.1 Identifying Objectives 75 3.1.1 The Role of Objectives 75 3.1.2 Process for Defining Objectives 77 iv 3.2 Defining a Comprehensive Set of Objectives for Effective Transboundary EIA 78 3.2.1 Overall Objective 78 3.2.2 Objectives for Effective Transboundary EIA 79 3.2.3. Summary 85 3.3 Integrating Objectives with Institutional Frameworks for Transboundary EIA . . . . 86 3.3.1 Supranational Authority 87 3.3.2 Related Organizations 87 3.4 Conceptual Model for an Effective Transboundary EIA Regime 88 3.4.1 Contextual Framework 89 3.4.2 Procedural Structure 91 3.4.3 An Integrated Conceptual TEIA Model 93 C H A P T E R 4 - C A S E S T U D Y C O M P A R I S O N : T H E N A A E C T E I A A G R E E M E N T 96 4.1 Case Study Rationale, Context, and Analytical Approach 96 4.2 North America as an International Environmental Regime 97 4.2.1 The Continental Ecosystem Context 98 4.2.2 4.3 Existing North American EIA Regimes 100 4.3.1 Canada 100 4.3.2 Mexico 101 4.3.3 United States 102 4.3.4 Comparative Analysis 103 4.4 The North American Agreement on Environmental Cooperation (NAAEC) 106 4.4.1 Political Genesis 106 4.4.2 Trilateral Environmental Governance Issues 108 4.4.3 The Commission for Environmental Cooperation 109 C E C Organizational Structure 109 4.5 The N A A E C Transboundary EIA Context 110 4.5.1 EIA Provisions in the N A A E C I l l Article 10(7) I l l 4.5.2 Transboundary EIA Consultation Process 112 4.6 Draft North American Agreement on Transboundary EIA 115 4.6.1 Preamble 115 4.6.2 Transboundary EIA Provisions 116 4.6.3 List of Projects Requiring Notification 116 4.6.4 Content of Transboundary Notifications 116 4.6.5 Transboundary Impact Significance Evaluation 117 4.6.6 Basic Content of a Transboundary EIA 117 4.7 Comparison between the Draft TEIA Agreement and the Conceptual Model for Transboundary EIA 118 4.8 Findings 135 4.8.1 Summary of Comparative Issues 135 4.9 Summary 141 C H A P T E R 5 - C O N C L U S I O N S A N D R E C O M M E N D A T I O N S 144 5.1 Conclusions 144 5.1.1 Limitations and Value of the Analysis .144 5.1.2 Environmental Policy Implications of the N A A E C 145 4.8 Findings 135 4.8.1 Summary of Comparative Issues 135 4.9 Summary 141 CHAPTER 5 - CONCLUSIONS AND RECOMMENDAT IONS 144 5.1 Conclusions 144 5.1.1 Limitations and Value of the Analysis 144 5.1.2 Environmental Policy Implications of the N A A E C 145 Not the "Greening" of Free Trade 146 5.1.3 Transboundary EIA Policy Implications 147 5.1.4 Addressing the Political Context 148 5.2 Recommendations for Further Research and Policy Initiatives 148 5.2.1 Strengthening the Role for Planners 150 5.3 Ecology, Sovereignty, and Environmental Decision-making 151 BIBL IOGRAPHY 153 APPENDICES 173 vi LIST OF FIGURES Figure 1 Contextual linkages associated with a North American transboundary EIA regime . . . 90 Figure 2 Procedural structure of conceptual model for transboundary EIA 92 Figure 3 Trilateral relationship of North American EIA regimes 104 LIST OF TABLES Table 1 Variables affecting the likelihood of signing international environmental agreements . 16 Table 2 Factors linked to successful implementation of international law and agreements . . . 17 Table 3 Selected transboundary/multilateral EIA regimes 58 Table 4 Objectives for effective transboundary EIA 80 Table 5 Comparative analysis of the Draft TEI A Agreement and Conceptual TEI A M o d e l . . . 119 Table 6 Comparison of Conceptual TEIA Model to the Draft TEIA Agreement 126 APPENDICES Appendix 1 N A C E C Overarching Principles for Transboundary EIA 173 Appendix 2 N A C E C Draft Transboundary EIA Agreement 176 vii ACRONYMS APEC Asia Pacific Economic Cooperation forum BECC Border Environmental Cooperation Commission (U.S.-Mexico) CEAA Canadian Environmental Assessment Act CEC Commission for Environmental Cooperation CEQ Council on Environmental Quality (United States) EA Environmental Assessment EIA Environmental Impact Assessment EIS Environmental Impact Statement EPA Environmental Protection Agency (United States) EU European Union LGEEPA Ley General del Equilibrio Ecologico y la Proteccion al Ambiente (Mexico) General Law of Ecological Equilibrium and Environmental Protection NAAEC North American Agreement on Environmental Cooperation NACEC North American Commission for Environmental Cooperation NAFTA North American Free Trade Agreement NEPA National Environmental Policy Act (United States) NGOs Nongovernmental Organizations PAP Potentially Affected Party PO Party of Origin SEMARNAP Secretaria de Medio Ambiente, Recursos Naturales y Pesca (Mexico) (Ministry of Environment, Natural Resources and Fisheries) TEIA Transboundary Environmental Impact Assessment UN ECE United Nations Economic Commission for Europe viii A C K N O W L E D G M E N T S I would like to acknowledge the financial support provided by the University of British Columbia's Faculty of Graduate Studies, Centre for Human Settlements, and School of Community and Regional Planning. I would also like to acknowledge the travel funding provided by the Center for Iberian and Latin American Studies at the University of California, San Diego. These funds were an essential source of practical support and encouragement for pursuing my research interests. Chapter 1 INTRODUCTION E n v i r o n m e n t a l impact assessment ( E I A ) is a w i d e l y adopted domest ic p o l i c y instrument for advanc ing environmenta l ly sustainable d e c i s i o n - m a k i n g . E I A is assuming a more international role as the env ironmenta l impacts o f h u m a n activit ies increas ingly transcend p o l i t i c a l boundaries , and as transnational e c o n o m i c integration creates pressure to harmonize domest ic environmenta l po l ic ies . T h e contested value o f E I A as a means o f i m p r o v i n g environmenta l d e c i s i o n - m a k i n g , as w e l l as the v a r i e d expectations associated w i t h the cont inued a p p l i c a t i o n o f E I A , represent a set o f unresolved issues that are b e i n g carr ied into the international environmental p o l i c y m a k i n g rea lm. T h u s , efforts to i m p r o v e the effectiveness o f E I A are c o n v e r g i n g w i t h the need for m o r e effective international environmental d e c i s i o n - m a k i n g and cooperation. T h i s emergent context for E I A practice requires a better understanding o f the pract ica l and theoret ical issues regarding transboundary E I A , and the role o f E I A i n the context o f international environmental agreements a n d mul t i la tera l E I A regimes. A fundamental objective o f theory and practice i n this regard concerns the need to i m p r o v e the effectiveness o f E I A i n p r o m o t i n g better transboundary env ironmenta l d e c i s i o n - m a k i n g . T h i s is reflected by the increas ing emphasis that analysts f r o m various academic and professional d isc ip l ines have recently been g i v i n g to para l le l research a i m e d at i m p r o v i n g the effectiveness o f environmental impact assessment and the effectiveness o f inst i tut ional arrangements for international environmenta l cooperat ion. 1 A l t h o u g h these t w o research agendas are, at least i m p l i c i t l y , d irected t o w a r d the c o m m o n goal o f i m p r o v i n g international environmental d e c i s i o n - m a k i n g , the re lat ionship between them has received very l i m i t e d attention. 1 A notable example pertaining to EIA is the International Study of the Effectiveness of Environmental Assessment; see Sadler (1996). Notable research agendas concerning the effectiveness of international environmental regimes are discussed in Young and von Moltke (1995) and Underdal (1992). 1 This thesis examines the practical and theoretical aspects of EIA as it is increasingly situated within international environmental decision-making contexts. More specifically, this thesis examines the role of transboundary EIA in the context of the increasingly integrated regional economy of North America. The need to develop a more effective North American transboundary EIA regime has become a more urgent policy consideration with the inception of the North American Free Trade Agreement (NAFTA) in 1994. The implementation of NAFTA highlights problematic issues regarding the relationship between international trade liberalization and the environment, and the tension between the primacy of national sovereignty and the increasingly international character of environmental decision-making.2 The role of transboundary EIA in the context of NAFTA is addressed through the North American Agreement on Environmental Cooperation (NAAEC) - the environmental side agreement to NAFTA. The NAAEC establishes a unique institutional framework for promoting international environmental cooperation on a continental scale between three countries with disparate ecological, socio-cultural, economic, and political characteristics (i.e., Canada, Mexico, and the United States). This trilateral effort to advance international environmental cooperation includes specific provisions related to EIA. Thus it offers a unique, North American context for examining the nexus between EIA and international environmental cooperation, and the role of transboundary EIA in promoting better international environmental decision-making. 1.1 RATIONALE Global economic integration and transboundary ecological interdependencies are increasingly creating contexts that challenge the primacy of national sovereignty as the justification for unilateral approaches to environmental decision-making. As a result, international environmental agreements are playing an increasingly important role in advancing environmentally sustainable decision-making by providing institutional frameworks or "regimes" for promoting international environmental cooperation (Young 2 As Rugman (1994: 101) asserts: "The major push behind NAFTA is globalization—the production and distribution of products and/or services of a homogenous type and quality on a worldwide basis. The producers and distributors enjoy economies of scale through large-volume production of standardized products and services. Most of these goods and services are provided by [multinational enterprises] MNEs operating across national borders." 2 1994). International environmental agreements have also begun to incorporate provisions for environmental impact assessment, and at least in one case, environmental impact assessment has been the singular focus of an international agreement (i.e., the UN ECE Convention on EIA in a Transboundary Context). Transboundary or multilateral EIA regimes have thus emerged as a new form of international environmental regime or subregime in a variety of contexts. Thus, transboundary EIA can be viewed as a potentially significant means of addressing environmental decision problems for which existing approaches are unlikely to be effective.3 This thesis research has stemmed from my perception that the potential significance of multilateral EIA regimes has been under-emphasized in the analyses regarding the implementation of international environmental agreements. In other words, the potential role of environmental impact assessment as a means of advancing international environmental cooperation deserves more thorough explication. And as Robinson (1992, p. 603) advises: "EIA is too important to leave to unstudied evolution." Thus, this thesis seeks to explicate the ongoing evolution of using EIA as a means of improving decision-making in the context of international environmental regimes with particular emphasis on the North American context. In addition, this study has been motivated by the very limited attention that the emergence of multilateral environmental impact assessment regimes have received in the literature on environmental planning and policy analysis. This is in contrast to the growing body of literature on the significance of international environmental regimes in other disciplines such as international law, political science, and international relations. In addition to the steady integration of environmental themes on a sub-disciplinary basis, an interdisciplinary field appears to be emerging that might be defined as international environmental policy analysis or global environmental governance* However, the disciplinary perspective of planning has only been weakly represented in this discourse. A fundamental premise of this analysis is that no single disciplinary perspective adequately 3 As Kraft and Vig (1994, p. 4) observe: "[Governments are ill-equipped to resolve many global environmental problems; hence, institutional reforms and new methods of decisionmaking are critical." 4 For example, see: Sprinz (1994) regarding the "state of the art....[f]or this relatively new and dynamic field of research" within International Relations" (p. 32); Caldwell (1990); and Young (1997). 3 interprets the ongoing evolution of multilateral EIA regime formation and implementation. This analysis has therefore drawn on resources from several different disciplines.5 Transboundary EIA has not received a great deal of attention from the descriptive and theoretical perspectives that are emphasized by political science and international relations analysts who address international environmental governance. Transboundary EIA has received substantially more attention in the literature from the field of international environmental law. This thesis represents an attempt to analyze the internationalization of EIA primarily from the perspective of environmental policy analysis and planning. This perspective seeks to provide a more prescriptive analysis (i.e., to suggest what could be done to improve the application of transboundary EIA). In this regard, particular emphasis is given to an approach to policy analysis called decision analysis. Decision analysis strives to provide insight for decision makers by eliciting and structuring the values of affected stakeholders in a given decision context, and then explicating the value tradeoffs which are the principal challenge in any decision problem. The potential value of a decision analysis approach to improving EIA has been examined before (Gregory et al, 1992). However, an important goal of this thesis has been to extend such an analysis to transboundary EIA in order to improve its potential role as a means of advancing more effective international environmental decision-making. At the same time, a several other relevant perspectives on improving environmental decision-making have been examined as well. This selective review of alternative approaches is not intended to be conclusive. Instead, the intention has been exploratory and suggestive. And in the absence of any other models for integrating the full range of issues that factor into the evolution of transboundary EIA effectiveness, this was the most reasonable analytical approach available. 5 These disciplinary perspectives include: (1) Political Science, e.g., power relations, competing interests, governmental theory; (2) Environmental Law, e.g., legal background and context, evaluation of procedural and substantive rule-making, enforcement; (3) International Relations, e.g., international regime analysis, multilateral negotiation, international treaties/agreements; (4) Planning, e.g., EIA praxis, administration, integration of context specific issues; (5) Policy Analysis, e.g., effectiveness evaluation, decision analysis, comparative analysis; and (6) Environmental Science, e.g., analysis of biophysical systems and human interdependencies. The application of these disciplines to international environmental problem-solving cannot be clearly delineated. For example, O'Riordan (1995, 10) notes that: "Environmental science is evolving internally by becoming more problem-focused, policy-relevant, interdisciplinary and self critical." And Young (1994, 211) concludes that "the development of a more effective working relationship between the legal community and the social science community is a necessary condition for the articulation of a comprehensive and fully satisfactory account of the nature and roles of [environmental] regimes or governance systems in international society." 4 1.2 PURPOSE AND OBJECTIVES OF THESIS 1.2.1 Purpose The purpose of this thesis is to examine practical and theoretical issues associated with improving the role of EIA as a means of promoting more effective environmental decision-making in multilateral and transboundary contexts, particularly in North America. Toward this end, a conceptual model for effective transboundary environmental impact assessment (EIA) is developed based on: (1) literature regarding EIA effectiveness, (2) principles drawn from alternative models for environmental decision-making such as decision analysis, and (3) informed perspectives elicited through discussions with knowledgeable analysts. Strategies for implementing such a conceptual model for transboundary EIA are then examined, emphasizing the transboundary EIA provisions being implemented pursuant to the NAFTA environmental side agreement. Finally, the findings of the thesis research are summarized and areas for further research are suggested. 1.2.2 Objectives The thesis research was structured according to the following objectives: • Conduct an interdisciplinary literature review on: the development of transboundary and multilateral EIA regimes; EIA effectiveness; relevant international environmental law; analyses of international environmental regimes; and other analytical frameworks for environmental decision-making. This literature review is intended to provide a conceptual framework for transboundary environmental decision-making. • Develop a conceptual model for transboundary EIA based on a comprehensive and well-structured set of objectives. • Compare the conceptual model for transboundary EIA to the draft recommendations for transboundary EIA being developed pursuant to Article 10(7) of the North American Agreement for Environmental Cooperation. • Present recommendations for improving the effectiveness of transboundary EIA regimes, particularly in the context of North America, based on the development and case study analysis of the conceptual model for transboundary EIA. 5 1.3 RESEARCH APPROACH As well-defined procedural instruments, EIA systems offer a relatively straightforward focus for environmental policy analysis. However, the focus on EIA effectiveness, particularly in an international context, draws the analysis into a broader and more contentious environmental discourse. The evolution, implementation, and dissemination of EIA processes is interwoven within a much broader underlying environmental discourse about how a pluralistic global society can establish sustainable relationships between humankind and the environment. This context suggested the need for an interdisciplinary approach to international environmental policy analysis. The case study on the ongoing implementation of multilateral EIA provisions in the context of the NAAEC created additional challenges. Furthermore, this approach is consistent with Lawlor's (1996, p. 118) point that: "Policy analysis occurs in realtime and in the context of real policy processes." This thesis is essentially an ex-ante policy analysis6 or "anticipatory evaluation" (Bartlett, 1994: p. 170) of a specific element of a broader environmental policy which is being implemented. Examining a policy process that has not been concluded, particularly one that involves multilateral negotiation, requires a greater degree of speculation about the motivations of the actors involved and the bases for their actions. This context also limits access to current information and inhibits the candor of participants in the policy-making process, because of their reluctance to share details regarding official and personal positions and perspectives during the course of active negotiations. Patton and Sawicki (1993, p. 208) include "political viability" as a key criterion for measuring policy and program performance based on acceptance by relevant interests. This requires "[p]olitical insight, understanding of organizational and administrative preferences and procedures, and knowledge of the motivation of the actors..." involved. The fundamental analytical challenge in this case has been to glean more than a superficial understanding of these factors in spite of being a researcher without direct involvement in the multilateral negotiations and very limited access to much of the information being exchanged during the course of that process. 6 According to Patton and Sawicki (1993, p. 369), ex-ante policy analysis is "[t]he preprogram quantitative and qualitative analysis of problems, decision criteria, alternatives, pros and cons, and expected outcomes of implemented policies, and steps necessary for implementation and evaluation. 6 The principal research method for this study was an exploratory and interdisciplinary literature review. The review of published information was supplemented by conversations and correspondence with key informants. Key informants included knowledgeable analysts (primarily from academic institutions), and representatives from relevant government agencies and environmental non-governmental organizations. Communication with key informants was conducted via telephone, Internet, or in-person (generally at relevant conferences). In addition, field research was conducted in the states of Yucatan and Quintana Roo in Mexico during the summer of 1995. This field research involved: (1) unstructured interviews with environmental planners, environmental scientists, representatives of environmental non-governmental organizations (ENGOs), and a variety of other individuals; and (2) data gathering activities such as EIA document reviews, library research, and casual field observations. In sum, this research process provided a substantial and integrative examination of relevant issues from a variety of disciplines and empirical sources. 1.4 OVERVIEW OF THESIS The thesis begins by presenting a conceptual framework for transboundary environmental decision-making drawn primarily from the literature review. This is followed by an overview of EIA, and transboundary EIA in particular. Other conceptual approaches to international environmental decision-making are also discussed briefly. A conceptual model for effective transboundary EIA is then developed based on a presentation of how relevant objectives were identified and structured. This conceptual model for transboundary EIA is then compared to transboundary EIA provisions being implemented pursuant to the North American Agreement for Environmental Cooperation, and the findings of this comparison are discussed. Finally, conclusions and recommendations are presented. 7 Chapter 2 THE TRANSBOUNDARY ENVIRONMENTAL DECISION-MAKING CONTEXT Environmental degradation and resource scarcity are the underside of globalization. They are threats to human security that respect no boundaries. Faced with this kind of threat, the old approaches will not be sufficient. And fmding new approaches will not be easy or non-controversial. Lloyd Axworthy, Canadian Foreign Affairs Minister Address on Sustainable Development - April 17, 1997 2.1 T R A N S B O U N D A R Y E N V T R O N M E N T A L D E C I S I O N - M A K I N G Threats to the ecological integrity of the biosphere increasingly involve complex cause-effect relationships that transcend political boundaries.7 Transboundary impacts8 have become a growing international concern as the scale of human influence on global ecosystems expands and international trade liberalization policies accelerate regional and global economic integration. These political-economic forces are paralleled by a growing recognition that efforts to protect important ecosystem functions often suffer from jurisdictional fragmentation, lack of international cooperation, and environmental management regimes that do not result in environmentally sustainable decision-making. Therefore, the increasing stress on global ecosystems demands international environmental cooperation in order to effectively protect the integrity of transboundary ecosystems and prevent environmental disputes from escalating into international conflicts.9 The increasingly international character of environmental decision-making is an important element of the broader "global environmental problematique" (Kurian et al. 1995, p. I). 1 0 7 For instance, Vitousek (1994, 1862) provides several examples of well-documented, human-caused environmental impacts "whose existence and global nature are beyond serious dispute." But global change also involve processes of "staggering scale, complexity and indeterminancy" O'Riordan (1995, 347). 8 '"Transboundary impact' means any impact, not exclusively of a global nature, within an area under the jurisdiction of a Party caused by a proposed activity the physical origin of which is situated wholly or in part within the area under the jurisdiction of another Party" (Espoo Convention, Art. l(viii), 1991). 9 Environmental security has become a significant issue of international relations and foreign policymaking. Environmental stress is increasingly recognized as a contributing factor to armed conflict. In this regard: "Transboundary pollution is a potential flashpoint in many areas..." (Futrell, 1998: 56). 10 Environmental problematique is used here to mean a set of interrelated problems that must be addressed as a whole in order to adequately address international environmental problems (see Kurian et al. 1995; Bartlett, 1994). 8 The dilemma posed by transboundary environmental problems concerns the distribution of the costs and benefits of a proposed action across political boundaries (Carroll, 1988). The complex process of evaluating probable impacts and weighting different stakeholder values, in order to judge the significance of the impacts associated with relevant decision-making alternatives, is complicated by the socio-cultural, political and economic differences between countries. As Anderson (1996, p. 171) notes: "When arguments about the trade-offs between economic development and environmental protection span international frontiers, they tend to become inconclusive." Perhaps the most fundamental issue, however, is simply that: "The inclination of states to favour economically advantageous activities to the prevention of adverse transboundary environmental effects has proved to be irresistible" (Nollkaemper, 1993). The fundamental challenges of transboundary environmental decision-making are not simply procedural, they involve underlying substantive issues associated with the compatibility of environmental protection goals and objectives. Furthermore, the definition of environmental goals and objectives are strongly contested within as well as between nations. As VanNijnatten (1996, p. 405) emphasizes: "The entity we refer to as 'the state' is in fact a complex of distinct institutions, each of which operates according to a unique decision-making dynamic and is intricately connected to a different segment of society." The transboundary environmental problematique is also a manifestation of the distribution of power within and between nations regarding the decisions that determine how the overall goal of sustainable development is operationalized. These issues may be more acute in the context of transboundary environmental problems between developed and developing countries, as is the case with the three NAFTA countries. 2 . 1 . 1 The Ecological Context From a strictly ecological perspective, it can be argued that the scope of transboundary or multilateral environmental decision-making will inevitably increase as the consumption of natural capital stocks increasingly exceeds regeneration and sink mechanisms, with the consequent cumulative degradation of global ecosystem functions. As a result, conflict will likely intensify over national "ownership" of, and competition for, a 9 shrinking global natural resource base. Moreover, environmental degradation will increasingly disrupt ecosystem functions at transboundary and global scales. No matter where a relatively healthy ecosystem may be, it will likely be subjected to increasing stress from transboundary pollution, global environmental phenomena such as ozone depletion, or exogenous pressure to harvest natural resources. These trends continue to be driven by a prevailing worldview that supports the extraterritorial appropriation of natural capital consumption through economic policies that favor multinational corporations. Therefore, it will not be sufficient to simply maintain strong environmental protection policies within national borders (something which is a daunting political challenge in itself). The interdependence of global economic and ecological systems continue to reduce the relative significance of national sovereignty as an overriding variable in international environmental law and management. At the same time, the corresponding level of effort needed to counter the primacy of national self-interest in environmental decision-making is not occurring. However, the consequences of failing to cooperate internationally may increasingly outweigh the unilateral benefits associated with maintaining the existing order of sovereign states. This ecological perspective is a strongly contested interpretation of the global situation. Consequently, there is no consensus regarding the appropriate policy choices to make in response to this situation. For the purpose of this analysis, an ecological economics perspective will be advanced. In essence, ecological economics asserts that the natural endowments of the biosphere offer only a fixed stock of natural capital, and the monetary economy (based on a system of commodified exchange value) does not generally capture the true cost to society of consuming natural capital flows beyond sustainable levels, because the long-term life support functions of natural capital are incommensurable in significant respects. In order to address this market failure (i.e., the externalization of social costs and incommensurable values), absolute limits should be placed on the consumption of natural capital in order to maintain a sustainable flow of natural income (Rees, 1995).12 In effect, this means supplanting the prevailing economic growth paradigm with a more ecocentric worldview. 1 1 The concept of "environmental security" has taken hold in both academic and foreign policy realms based on these concerns. For example, see Tennberg (1995). On a more annecdotal level, Kaplan (1994) describes the potentially alarming nexus between environmental degradation and the disintegration of civil society. 10 2 . 1 . 2 Sovereignty vs. Ecology The challenges posed by transboundary environmental impacts reflect a conflict between the primacy of national sovereignty as the fundamental basis for environmental decision-making and ecological interdependencies that do not recognize political boundaries. As Carroll (1988) asserts: [N]ature will continue to challenge our conventional definition of sovereignty, for there is more than a little evidence now to indicate that nature cannot and will not recognize our anthropocentric definitions of sovereignty, our political borders which defy reality. Nature will continue to challenge the system we have inherited, the system whose evolution we have witnessed, until we recognize more realistically the interrelations and interdependencies of that broad ecosystem within which we must survive. Similarly, Brunee (1993, p. 16) states: Development of effective mechanisms of international environmental law [such as transboundary EIA] must overcome the fundamental tension between the unity of ecosystems and the fragmentation of an international legal order built upon the rights and obligations of sovereign states. These statements suggest the need to supplant the primacy of state sovereignty with the goal of protecting transboundary ecological integrity. This implies the development of an international environmental governance regime with some supranational authority regarding environmental management issues. Analysts have different perspectives regarding the degree to which existing laws and policies influence the actual behavior of states regarding environmental management. According to Anderson (1996, p. 172): "The system of international arrangements, including global, regional and bilateral agreements, for environmental protection is emerging as a real constraint on the exercise of state sovereignty." Consequently: "Perceptions of territorial sovereignty are changing because in environmental policy states no longer appear to have the right to approve some activities within their frontiers." The country that disregards commitments to international environmental agreements and principles encounters growing international opposition to such unilateral actions. Other analysts might consider Anderson's characterization of waning state sovereignty to be overstated. Susskind (1994, p. 123), for example, asserts that "states are likely to retain their sovereign powers and will remain the 1 2 In essence, this represents a "hard" sustainability perspective, in contrast to "soft" sustainability which holds that ecological limits are not necessarily a paramount consideration vis-a-vis social and economic considerations. 11 center of global decision making." At any rate, sovereign states will continue to guard assiduously their right to exclusive jurisdiction over environmental policies and decision-making regarding the use of natural resources and the level of environmental protection within their territories. In spite of an inherent conflict with the emergence of an increasingly global environmental imperative, the primacy of state sovereignty continues to be reinforced through international policy commitments. According to Principle 2 of the 1992 Rio Declaration, for instance:13 States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. The environmental sovereignty endorsed in Principle 2 is qualified by the need to avoid causing damage to the environment of extraterritorial areas.14 Furthermore, the exercise of sovereignty must presumably be consistent with the other principles in the Rio Declaration, which include requirements for sustainable development, international cooperation, ecosystem protection, the precautionary principle, public participation, and environmental impact assessment. Although state sovereignty remains a fundamental tenet of international environmental law and policy making, it is situated within an increasingly ecocentric set of international environmental rules and principles.15 Other analysts suggest that the ascendancy 1 3 This principle is almost identical to Principle 21 of the 1972 Stockholm Declaration; the only substantial difference is shown in brackets ". . the sovereign right to exploit their own resources pursuant to their own environmental [and development] policies . ." 1 4 As Bragdon (1992) notes with respect to the predecessor to Principle 2. "If Principle 21 [of the 1972 Stockholm Declaration] were to evolve into international law that is capable of addressing global environmental problems, the second half of the Principle must be explicitly developed" (p. 390) [italics added]. "In particular, Principle 21 does not detail the actions that states are expected to take to prevent environmental damage nor is it explicit about the nature of a state's liability should extraterritorial damage occur" (p. 386). "A balance between national sovereignty over natural resources and state responsibility for extraterritorial harm can only occur with a reciprocal modification of what those concepts entail" (p. 391). 1 5 "From the large body of international agreements and other acts it is possible to discern general rules and principles which have broad, if not necessarily, universal support are frequently endorsed in practice. These are" (a) the obligation reflected in Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration, namely that (a) states have sovereignty over their natural resources and the responsibility not to cause environmental damage; (b) the principle of preventative action; (c) the principle of good neighbourliness and 12 of international response to environmental issues may represent the emergence of a "universal norm of environmental responsibility" (Conca, 1994), a "general rule of state environmental responsibility" (Bragdon, 1992, p. 384), or "a new sense of planetary consciousness which is leading to new forms of non-territorially based political identity and to new mechanisms of political organization and action" (Hurrell, 1995: p. 136). However, the extent to which these emerging principles and political responses will influence the environmental practices of states is variable and uncertain. As Sands (1995) emphasizes: "In the absence of judicial authority and conflicting interpretations under state practice, it is frequently difficult to establish the parameters or the precise international legal status of each general principle or rule."16 Bragdon (1992, p. 386) notes: "The lack of detail and more forceful language indicates the reluctance of states to qualify their national 17 sovereignty by explicitly adopting a general rule of state environmental responsibility." In practice, this simply means that the stated commitment of a given country to sustainable development and international environmental cooperation does not necessarily translate into environmental decision-making that other countries would find acceptable. 2.1.3 Global Commons A distinction also needs to be made between the sovereign environmental decision-making authority of states for actions within their national boundaries and the global commons beyond national boundaries. A global commons, according to Soroos (1998: p. 7), "may be loosely defined as a domain that is beyond the exclusive jurisdiction of any one nation but one that all nations may use for their own purposes (such as extracting resources or discharging pollutants)." Some primary examples include: the atmosphere, Antarctica, outer space, and the seabed. "Global commons are governed to varying degrees by international legal regimes based on a combination of unwritten, customary law and the carefully negotiated provisions of treaties" (Soroos, 1998: p. 8). international cooperation; (d) the principle of sustainable development; (e) the precautionary principle; (f) the polluter-pays principle; and (g) the principle of common but differentiated responsibility (Sand, 1995). 1 6 Bragdon (1992, p. 385) stresses the non-binding character of the Stockholm Declaration and its Principles. However: "The Principle protecting sovereignty limits legal obligations to those instances in which a state consents to be bound." [emphasis added] "Guidelines, declarations, and principles are essentially an effective, non-threatening way to encourage cooperation among states with different views on the appropriate response to a particular problem." 1 7 This is specifically in reference to Stockholm Principle 21 and General Assembly Resolution 35/7. 13 The relationship of global commons to sovereign territory is not necessarily clearly defined given the complex interrelationships between different biophysical systems. The defining feature of global environmental problems is the impossibility of solving them by an individual nation. As Delbriick (1996) emphasizes, they require the development of supranational institutions and networks for global governance. This global regulatory regime would be based on the clarification of the "international public interest" regarding global commons that transcends "the traditional sovereignty-oriented international legal order." At the same time, Delbriick cautions that the development of a robust normative framework based on the international public interest will require sustaining commitment to a difficult international discourse. Impacts on global commons may be more difficult to assess in specific transboundary environmental decision-making contexts, because the issue often centers on the cumulative effects of pollutants to global systems such as the atmosphere or the oceans. On the other hand, Sadler (1996, p. v) suggests: "The use of E[IJA has the advantage of providing an established 'entry point' for incorporating global change considerations in the mainstream of development planning and decision making." However, addressing such issues has generally become the focus of broader environmental governance regimes with an emphasis on establishing international commitments to the reduction of national pollution levels rather than specific decision-making procedures and thresholds for specific activities. To the extent that commitments are made to participate in regimes for protecting global commons, a supranational basis (albeit partial and implied) for guiding transboundary environmental decision-making is set forth. 2.1.4 International Environmental Agreements Establishing effective regimes for promoting international environmental cooperation and effective transboundary environmental decision-making requires that the tension between sovereignty and ecology be addressed effectively. Toward this end, international environmental agreements18 have become "the predominant legal method for addressing Here the meanings of terms are taken from the Harvard Law Review (1992, p. 47):"'[international means agreements between two or more states or international organizations such as the European Economic Community. Such agreements can be classified roughly as bilateral (between two states), regional (among [more] 14 environmental problems that cross national boundaries" (Harvard Law Review, 1992). International environmental agreements thus reflect and seek to facilitate the desire of different sovereign governments to work to mutual advantage for the sake of protecting the integrity of ecosystems and natural resource stocks within and beyond their respective domains of sovereign authority.19 The growing significance of international environmental agreements is noted by Jacobson and Weiss (1995, p. 119): By 1992, there were more than nine hundred international legal instruments (mostly binding) that either were fully directed to environmental protection or had more than one important provision addressing the issue. In the early 1990s, about a dozen important multilateral negotiations on new international legal instruments were occurring at more or less the same time. Furthermore: The rate at which important accords have been proposed and concluded is increasing. The substantive and procedural duties contained in the accords [including specific provisions for transboundary EIA] have become more stringent and comprehensive, and the range of issues subject to such accords have expanded. Thus, international environmental agreements have emerged as the principal approach for reconciling sovereignty and ecology. However, "despite their importance and growing number," Jacobson and Brown note that "we know very little about national implementation and compliance with the treaties and other international legal instruments that have been negotiated." As shown in the Table 2.1, Hahn and Richards (1989: p. 433) outline ten variables that potentially affect the likelihood of signing international environmental agreements. These variables provide some useful issues for consideration in policy analyses of than two states sharing geographic proximity), or global (among more than two states not sharing geographic proximity). 'Agreement' means any agreement in written form and governed by international law; all treaties fit this definition of agreement, as do many agreements called (somewhat misleadingly) conventions and protocols." These definitions under-emphasize international agreements between sub-national governments (e.g., between state and province) and international agreements that are not governed by international law such as Memoranda of Understanding regarding environmental cooperation. 1 9 Analysts such as Wenner (1993: p. 176) suggest that bilateral negotiation and international arbitration have been the principal means of international dispute resolution to date. Regional compacts (i.e., international agreements) and multilateral organizations, on the other hand, have been use less frequently "because of the reluctance of nation states to see their sovereignty diminished." This preference favors a reactive rather than preventative approach to transboundary problem solving that requires a more proactive and cooperative approach. 15 international environmental decision-making regimes as well. The variables with positive effects, for instance, may be viewed as the possible "drivers" for more effective policy related to a given issue area. Variables with negative effects inhibit reaching international agreements, and may also contribute to ongoing tensions in the implementation of international agreements. Table 1. Variables affecting the likelihood of signing international environmental agreements Variable Effect Scientific Consensus + Perception of Risk + Costs of Control -Perception of Fairness + Short-term Political Benefits + Number of Participants -Previous Agreements + Momtoring/Enforcement ? Forum of Negotiations ? Scope of Impacts ? Source. Hahn and Richards (1989) In addition, DiMento and Doughman (1998, p. 704) have outlined numerous factors which are linked to successful implementation of international laws and agreements. As shown in Table 2.2, these factors were not drawn exclusively from environmental issue areas, but they are presented in that context. These factors suggest how there may be some functional overlap (if not potential synergy) between the broader aspects of international regime effectiveness and the application of transboundary EIA (sub)regimes. The factors that support the formation and implementation of international environmental agreements will condition the terms under which transboundary EIA requirements are defined, and the degree to which they achieve their intended objectives. As the factors shown in Tables 1 and 2 indicate, transboundary EIA processes have attributes that contribute to the conditions needed to help establish international environmental agreements, and to the factors linked to more effective implementation. In other words, the effectiveness of transboundary EIA regimes are bound to the implementation of international environmental agreements, but transboundary EIA could 16 potentially have a broader role in facilitating the creation and implementation of international environmental law and agreements more generally. This places the practical and theoretical relevance of transboundary EIA in the realm of international environmental law and diplomacy. Table 2. Factors linked to successful implementation of international law and agreements Organization assists in sharing scientific information among Parties Organization monitors compliance of Parties Organization supplies technical assistance NGOs are given important roles Complaint procedure is open to NGOs Economic assistance is given to Parties Low threshold for ratification of Original Agreement Citizens are given effective means of participation Effective means of communicating with interested groups established Effective means of disseminating mformation established Non-compulsory dispute procedures adopted Clear regulatory framework articulated Agreement amendment procedures are flexible Organization meets regularly Source: DiMento and Doughman (1997) The relatively weak understanding of national implementation and compliance regarding international environmental agreements reflects the complexity and highly political nature of international environmental negotiation and governance. Moreover, the landscape of international environmental agreements is already "congested" to the point of in inefficiency and lack of focus (Kelly, p. 1997). This is primarily an issue for less developed countries (e.g., Mexico). Although every country faces significant internal challenges securing the political support to participate in international environmental initiatives, and then maintaining that support in order to follow through on their commitments. In any case, the bottom line is that: "International accords are only as effective as the respective parties make them" (Jacobson and Weiss, 1995: p. 120). This also highlights the important role that the discretion of states and individuals play in determining how effectively international 17 environmental agreements function to advance sustainability. It is a simple matter to endorse international environmental agreements and the principles of sustainability they promote; however, translating this commitment to such agreements into effective actions is a much more difficult issue. 2.1.5 International Environmental Regimes Although explicit international environmental agreements have received the most focus as a means of improving transboundary environmental management and decision-making, there is also broader perspective on international environmental regimes. According to Osherenko and Young (1993): "Regimes are social institutions composed of agreed-upon principles, norms, and decision-making procedures that govern the interaction of actors in specific issue areas." They add: The importance of international regimes is growing in a world in which increasing interdependence heightens the impact of the actions of individual states (or those operating under the jurisdiction of individual states) on the welfare of other states and their inhabitants. ...Natural resource and environmental regimes play an increasingly important role in structuring international relations as transboundary air and water pollution, the protection of migratory or endangered species, and other environmental issues have come to the attention of policy makers and the public, (p. 1-2) There is considerable variation in the geographic and functional scope of regimes. However, "specific regimes are created rather than discovered. [And] Formalization is not a necessary condition for the existence or operation of any given regime" (Young, 1989). International environmental regimes provide a useful conceptual framework for the analysis of transboundary environmental cooperation and policy making. As Mumme and Stevis (1995) note: "A key strength of regime analysis is that is seeks to identify the deeper principles or norms and the more operational rules and procedures that may organize a particular issue area." However, the formation and implementation of international environmental regimes is a complex process for which effective analytical methodologies have only recently begun to be developed. Furthermore, "the development of environmental regimes is a slow, evolutionary process....[that proceed] slowly from principle to practice" (Munton and Castle, 1992). 18 The analysis of international environmental regimes poses considerable methodological challenges. It also offers possibilities for generating more robust explanations regarding the character, dynamics, consequences and effectiveness of different approaches and contexts for transboundary environmental problem-solving. The incorporation of regime analysis offers an additional theoretical basis for examining the dynamics of international environmental decision-making. A detailed application of regime analysis is beyond the scope of this thesis. Nevertheless, it is worth introducing the regime analysis perspective in order to provide a basis for representing the broadest possible interdisciplinary perspective regarding transboundary environmental decision-making. A working assumption of this analysis, albeit an arguable one, is that transboundary EIA systems may increasingly be considered international environmental regimes or sub-regimes. The fundamental issue, which will only be addressed tangentially given the scope of this thesis, is what potential role does transboundary EIA have in the formation and effectiveness of international environmental regimes? 2.1.6 Summary Do we have conventions, agreements, treaties? Yes, we have many indeed. Do we have institutions, large and small to carry out their mandate? Yes, we most certainly do. Do we have a global environment which is getting healthier? No! In fact, quite the contrary: Do we have a reduction in transborder environmental problems? Not at all. (Carroll, 1988) The preceding sections have provided a brief overview of the transboundary environmental decision-making context, emphasizing the fundamental contradiction between ecology and sovereignty, and the emerging importance of international environmental agreements as frameworks for reconciling this contradiction. Increasingly, EIA is an element, if not the focus, of such international environmental agreements. Therefore, the need to improve the effectiveness of environmental impact assessment is convergent with the need to improve framework agreements for promoting international environmental cooperation. On the other hand, there are arguments against this emphasis on the tension between sovereignty and ecology as the defining feature of international environmental decision contexts. For instance, Mickelson (personal communication, 1996) counters that the term "sovereignty" is overly laden with "historical, cultural, political, and economic baggage." 19 And the sovereignty versus ecology debate " not that useful in understanding how and when specific environmental regimes develop." Nevertheless, the majority of the literature related to international environmental decision-making seems to be referenced to the need to find better means of reconciling the interests of particular states vis-a-vis the potential harm to environmental values shared by other states. As will be discussed below, the potential role of EIA, and transboundary EIA in particular, is that it provides a widely accepted process for supporting environmental decision-making based on an explication and objective evaluation of impacts. At least in theory, the transboundary application of EIA offers a procedural basis for structuring specific environmental decisions in a way that complements the objectives of broader international environmental agreements and regimes. International environmental regimes present a variety of contexts characterized by different "functional scope, geographic domain, and membership" (Young, 1997). Transboundary EIA regimes may stand alone or be "nested" within broader regimes. The critical issue is whether EIA processes can be implemented effectively enough to improve transboundary environmental decision-making. This issue is taken up in the following sections. 2.2 ENVIRONMENTAL IMPACT ASSESSMENT This section provides a conceptual overview of EIA in order to clarify its potential and limitations as a means of improving environmental decision-making. Environmental impact assessment has become a standard means of predicting and evaluating the consequences of proposed actions with the potential to have significant adverse effects on the environment.21 From its inception as a formal policy process in the United States under the 1969 National Environmental Policy Act (NEPA), 2 2 EIA processes have steadily become 2 0 As VanderZwaag (1977, 344) emphasizes the necessity of such interrelated regimes: "The growing awareness of ecosystem interconnections, involving transboundary pollutants and movements of wildlife not to mention ozone depletion and global warming, call for a combination of global, interregional, regional and bilateral arrangements." 2 1 The term "environment" is used inclusively here to reflect the breadth of socio-cultural, economic, and biophysical values that are generally given consideration in EIA processes (e.g., Gilpin 1995; Rappaport 1996). 2 2 The current standards for NEPA implementation were substantially augmented in 1978 when the Council for Environmental Quality (CEQ) issued the first set of binding regulations for NEPA implementation in 1978. These 20 more sophisticated and more widely adopted throughout the world (e.g., Gilpin, 1995; Robinson, 1992).23 Other forms of structured decision-making that were applied directly or indirectly in environmental decision contexts preceded the institutionalization of formal EIA processes following NEPA. 2 4 However, the EIA process mandated pursuant to NEPA raised public and institutional expectations regarding the acceptable levels of analytical rigor, consistency, accountability, and public participation to which government decision makers would henceforth be required to meet.25 2.2.1 EIA Terminology Given the many variations on the original NEPA model of EIA, however, the terminology of EIA requires some clarification. Although analysts may use the terms differently, for the purposes of this analysis, the term environmental impact assessment (EIA) will be used interchangeably with other terms such as "impact assessment," and "environmental assessment" (EA). It is also important to note the distinction between EIA and environmental impact statement (EIS). The EIS was introduced as part of the NEPA EIA process. After numerous highly publicized and litigated decisions regarding the adequacy of EISs for projects in the United States, the NEPA EIA process became synonymous with the legally prescribed process of preparing EISs. Although other countries that implemented EIA processes did not necessarily place similar emphases on the EIS component, EIA processes generally have some requirement for a written document which summarizes the analysis regulations must be considered as a whole with the original statute to fully comply with NEPA" (Bass and Herson, 1993: 8). Similarly, Weiner (1997, 65) asserts that the CEQ's "NEPA regulations reflected a fundamental shift from a focus on EIS the overall "environmental review process." This approach reflected...that the dynamic process of thinking through alternatives and impacts—in-house; with consulting professionals; with other federal, state, local, and tribal governments; and with applicants and the citizens—is the key to NEPA's power and effeectiveness." 2 3 "Formal EIA processes are now estimated to be in use in more than 100 countries. When the EIA procedures of international organizations and subnational government are included, "the number of major E[I]A regimes probably rounds out to 200" (Sadler, 1996: 25). "As countries have adopted, modified, and refined their EIA systems, it is remarkable how much they have come to resemble the NEPA model..." Wood (1997, 110). 2 4 For example, Fortlage (1990) describes how a Commission was established in 1548 to investigate the impacts of iron mills and furnaces on the availability of wood supplies and other economic activities in a particular region of England. And, O'Niell (1995) describes a example of how de facto impact assessment processes emerged to address a significant environmental decision (i.e., the proposed use of nuclear explosives to create a harbor along the arctic coastline of Alaska) in the decade prior to NEPA adoption. 2 5 As Rodgers (1994:801) notes: NEPA is "the most famous statute of its kind on the planet." It was "a seminal enactment" which brought heightened judicial oversight into the environmental decision-making processes of government agencies, and "injectfed] new discipline and values into administrative decisionmaking." 21 and/or the final decision-making process. Whether or not these reports are called EISs, environmental assessments (EA), or EIAs is not critical to this analysis. Nevertheless, it is helpful to minimize the potential confusion around this issue. And, because this analysis focuses on the implementation of EIA in North America, the EIA processes at national and sub-national levels of governance within Canada, Mexico, and the United States provide additional contextual definition. 2.2.2 Purpose of EIA Defining the purpose of EIA raises several contentious issues that reflect underlying disagreements about the practical, theoretical, philosophical, and political dimensions of environmental decision-making. This section provides a brief overview of a few notable aspects in this regard. These aspects of EIA will not be examined in depth here. Rather, they will be left open for further consideration in later sections. It suffices to note here that there are conflicting perspectives regarding the purpose of EIA, and these need to be recognized explicitly in order to provide a basis for analyzing transboundary EIA regimes. Procedural versus Substantive Purpose As Gibson (1993, 17) asserts: "Environmental assessment requirements are meant to change the nature and substance of planning and decision-making. They are an attack on the status quo." In other words, EIA is intended to change administrative behavior that fails to 26 seriously consider the environmental consequences of their decisions. At the same time, Wood (1995, p. 2) emphasizes that EIA is not necessarily "a procedure for preventing actions with significant environmental impacts from being implemented." EIA is simply intended to force serious consideration of such impacts, although decision makers may ultimately weight other socio-economic or political factors over environmental factors. This perspective of EIA as a procedural requirement, as opposed to EIA as a mechanism for mandating decisions in accordance with substantive objectives, highlights the principal source of disagreement between advocates and critics of EIA as an effective environmental decision-making tool. 2 6 The goal of NEPA for instance, was not simply to require the preparation of decision documents in the form of EISs. "Fundamentally, NEPA is a directive to the agencies of the federal government to revise their procedures, reeducate their personnel, and realign their charters in pursuit of environmental values" (Rodgers, 22 EM Theory Penney (1994, p. 242-3) argues that the evaluation of EIA must be based on consideration of a theory of environmental assessment that provides "a conception of what it is we want environmental assessment to accomplish." He adds: "A meaningful environmental assessment theory must consist of more than a list of ideal features or requirements, however. It must carve out a philosophical position on what it means to environmentally assess." Rather than relying on implicit assumptions whereby "truths about what makes for good environmental assessment are taken to be self-evident....[EIA theory development seeks to] make tacit understandings that underlie practice." Among other things, these "understandings" represent deeply held, and culturally contingent worldviews or paradigms that shape individual and collective interpretations of reality. According to Penney, these can be grouped into two competing theoretical bases for EIA. The dominant theory of EIA is based on the "development" paradigm in which environmental considerations are not necessarily the most important factor in a given decision context. The "sustainability" paradigm, on the other hand, "takes the principal task of environmental assessment to be the maintenance and restoration of ecological integrity on a global scale." The fundamental implication in terms of defining a purpose for EIA is therefore the need decide whether "development" or "sustainability" will be the underlying paradigm. Although some reform would still be possible under the development paradigm, it would maintain the conventional model of EIA as an adjunct consideration in the development process. This version of a sustainability paradigm, however, implies a far-reaching elevation of ecological criteria to an absolute position in the decision-making process. Other analysts have advanced similar arguments regarding the theoretical basis for truly sustainable EIA (e.g., Rees, 1988). While there is clearly merit to the "hard" sustainability argument regarding the effectiveness of EIA, the practical exigencies constraining such an approach suggest the need to establish an intermediate position as well. As Lyons (1993) suggests, the fundamental distinction is whether the purpose of an EIA process is (1) to facilitate projects but minimize 1994, 829). Or as Boggs (1993, p. 29) suggests: "Congress designed NEPA to help reform insitutional realities with deeply embedded values and world views." 23 impacts, or (2) to evaluate project need and value relative to different levels of environmental harm (i.e., focus on alternatives). This perspective highlights the role EIA can play in illuminating the rationale for specific environmental decisions, without necessarily implicating intractable debates regarding global limits. EM Principles The purpose of EIA reflects the principles that its procedural elements are intended to address. As discussed above, there are different perspectives on what these principles should include, but the following summary provided by Sadler (1995, p. 13) is generally representative: • facilitate informed decision making by providing clear, well structured dispassionate analysis of the effects and consequences of proposed projects; • assist the selection of alternatives, including the selection of the best practicable or most environmentally friendly option; • influence both project selection and design by screening out environmentally unsound projects, as well as modifying feasible proposals; • guide formal approval, including the establishment of terms and conditions of project implementation and follow-up; • result in best practice prediction and mitigation of the adverse effects of projects; and • serve as an adaptive, organisational learning process, in which the lessons of experience are fed back into policy, institutional and project design. Similarly, Gibson (1993, p. 12) suggests eight interdependent principles for the design of an effective EIA process: • serve sustainability objectives • apply to all environmentally significant undertakings • identify best options rather than merely "acceptable" proposals • be clearly specified and mandatory • ensure openness and facilitate public participation • provide for enforceable approval conditions and monitoring of results • allow efficient implementation, and • be linked to coherent overall regimes that integrate planning and assessment with overall objective setting and specific regulatory action. 24 Fundamentally, then, EIA is intended to improve environmental decision-making and promote sustainability by establishing a mandatory procedural basis for ensuring that decision makers identify and, ideally, choose the best possible alternative in any decision context with the potential for significant environmental impacts. In order to do this effectively, an EIA process must provide an efficient and credible means of clarifying the probable consequences of proposed actions, as well as what can be done to minimize impacts through the development of the best possible alternatives and mitigation strategies. Furthermore, the EIA process should ensure meaningful participation by affected stakeholders, and provide a basis for ensuring that the conditions for approving an action are effectively implemented. 2.2.3 Elements of EIA The evolution and worldwide dissemination of EIA policies and practice has created a rich assortment of variations on their NEPA progenitor (Gilpin, 1995). Consequently, there is no single EIA system that represents a standard. There are important differences amongst these many approaches to EIA, because their specific procedural configurations and substantive requirements reflect unique differences in the socio-cultural, political and economic contexts from within which they were formed and applied. At least conceptually, most EIA systems are composed of similar elements which reflect the fundamental similarity of purpose amongst EIA systems. However, Wood (1995, p. 5) notes that "...there is a very considerable diversity of views about the essential elements of an effective EIA system." And Gibson (1993, p. 13) suggests: "There is no one perfect design for a proper environmental assessment process..." Nonetheless, this section draws on various efforts to characterize the principal elements of EIA systems. These basic elements then form the basis for discussing how EIA can be best applied in transboundary contexts. Although the composition of EIA processes vary, there are core elements that are generally considered essential in order for an EIA process to be reasonably effective. The following core elements have been drawn primarily from Sadler (1996) and Wood (1995) based on their comprehensive reviews of EIA regimes internationally: 25 • Preliminary Activities - e.g., pre-proposal consultations, alternative design consideration, and identify overall goals and objectives. • Proposal - submission triggers environmental review process • Screening - determination made regarding level of EIA required • Scoping - i f EIA report is required • Analysis of Impact Prediction and Significance - for proposal and alternatives • Mitigation - developed and/or incorporated throughout process • Review of EIA Report - may involve draft report iterations • Decision-making - identify a preferred alternative (e.g., reject, approve, or require modifications/additional analysis • Monitoring and Follow-up - e.g., audit/evaluation and impact management, i f approved • Consultation and Participation - may be incorporated throughout the EIA process. These EIA elements include discrete steps within EIA processes (e.g., scoping, screening, and decision-making) and elements that may be applied at various stages of the EIA process (e.g., mitigation, and consultation and participation). Moreover, these elements may be applied selectively, iteratively, and adaptively depending on the specific institutional and decision context. These elements are discussed in more detail below. 2 . 2 . 3 . 1 Preliminary Activities EIA is most effective when it is integrated as early as possible into the decision-making process. In addition to earlier consideration of potential impacts, this allows for meaningful consideration of the underlying objectives of a proposed action, thereby permitting the consideration of a broader range of alternatives. From a practical standpoint, earlier consideration also increases the opportunities for meaningful public participation, and prevents premature actions by the proponent that might create unnecessary expense or preclude better alternatives. The effectiveness of preliminary EIA activities are improved to the extent that proponents believe voluntary measures to incorporate outside considerations during the conceptual phase will be handled in a way that improves the review of proposal. 26 Screening Screening refers to the aspect of an EIA process whereby a determination is made regarding the extent to which a proposed action should be subject to environmental impact assessment based on a preliminary measure of probable impact significance. In this way, projects only undergo the a level of procedural rigor commensurate with their significance relative to general standards for the applicability of EIA in a given context, ranging from no further EIA required to a full-blown EIA report and the attendant process. Specific screening mechanisms include the following types, which may be used individually or in combination to determine what should be assessed (Sadler, 1996: p. 96; Wood, 1995: p. 115): • list of actions with thresholds and criteria; • specific procedures for making discretionary determinations on case by case basis; • general criteria, and; • list of resources or areas of special importance or sensitivity. Scoping The scoping phase is intended to clarify what the appropriate range and depth of analysis should be in cases where the screening process has resulted in the determination that a proposed action requires a more thorough impact evaluation and detailed report. Scoping provides a basis for focusing the assessment of impacts in a manner that captures the full range of stakeholder concerns and technical perspectives, while avoiding excessive breadth and emphasis (i.e., the analysis of issues or use of techniques that will increase the time and money required without providing useful information). Scoping may involve varying levels of stakeholder participation, ancillary risk communication and education functions, and overall rigor and thoroughness. As with screening, the efficiency of the scoping process in clarifying the level of effort and expense that the EIA process will entail contributes to the confidence proponents and stakeholders will have in the overall EIA process. Mitigation As Woods (1995, p. 212) suggests, "the mitigation of environmental impacts is the principal aim of the EIA process." Ideally, an EIA process forces the consideration of alternatives that will eliminate, or at least reduce, specific impacts to the extent that the 27 overall impact of a proposed action is acceptable. The consideration of mitigation options is often a very complex and highly contested aspect of an EIA process, because of the substantial variability, expense, and influence on the relative acceptability of proposed alternatives. Disagreement regarding the relative benefits of a mitigation option are also likely to reflect differences between stakeholder values and levels of uncertainty regarding the environmental risk at issue. In any case, the development of mitigation measures that sufficiently reduce identified adverse impacts to an acceptable level provides one of the principal substantive benefits of EIA (Weiner, 1997). Impact Prediction and Uncertainty The prediction of impacts from a proposed action is not a separate step per se of an EIA process, but it often becomes the focus of the greatest conflict amongst affected stakeholders and EIA analysts, and may therefore be a source of intractable difficulty for decision-makers. Conflicts and uncertainty regarding impact prediction are typically generated by issues of scientific uncertainty regarding the availability and interpretation of the information needed to ascertain the causal relationships between proposed actions and environmental effects with a reasonable level confidence. The pivotal consequence of scientific uncertainty and the general difficulty of impact prediction is the additional complexity that is entailed in significance evaluation. Significance Evaluation As Sadler (1996, p. 118) suggests: "Evaluating the significance of environmental effects is perhaps the most critical component of impact analysis." Duinker and Beanlands (1986, p. 1) emphasize the "importance, complexity, and subjectivity of evaluating impact significance," and state: "From any perspective - technical, conceptual, or philosophical -the focus of EIA ultimately narrows down to a judgment call. Are the predicted impacts significant?" This comment highlights that: "Significance is relativistic and always must be set in a context" (p. 4). Thus determining significance becomes a discursive process - a contest between competing knowledge claims and value weighting. 2 7 Under NEPA mitigation includes: (1) avoiding the impact; (2) minimizing the impact; (3) rectifying the impact; (4) reducing the impact; or compensating for the impact. The purpose of a mitigation is therefore to use these approaches to addresses identified environmental impacts (Bass and Herson, 1993: 74-75). 28 The process of evaluating significance is also often implicit rather than explicit (Gregory et. al., 1992). The call for more explicit treatment of significance evaluation in the EIA process suggests the need to develop effective significance criteria. According to Gibson (1993: p. 23), "...environmental assessment decisionmaking would be greatly facilitated if there were reasonably clear and well-accepted criteria for judgments." Furthermore: "For any particular EIA, the development of criteria for judging impact significance should take place very early in the planning stages of the assessment" (Duinker and Beanlands, 1986: p. 7). These comments reflect general agreement regarding the need to provide an explicit and scientifically credible basis for evaluating significance. Participation and Consultation Participation and consultation with affected stakeholders and other sources of impact assessment expertise is an integral aspect of an EIA process. There is a wide range of possibilities for incorporating mechanisms for stakeholder participation and consultation. At a minimum, EIA regimes generally provide specific time frames at one or more points during an EIA process to submit written or verbal comments. These are typically during the scoping phase, after the preparation of a draft EIS, or in response to the submission of other related documentation. Different levels of discretion may be allowed at various stages of the EIA process for public meetings or other structured processes for providing information about impact issues and alternatives, and eliciting input from stakeholders. Participation and consultation may therefore be considered essential features of EIA theory and practice. The principal difference concerns the degree to which stakeholder participation and consultation are facilitated and then reflected in decision outcomes. Review of EIA Report The review of the EIA report is generally an important juncture in the EIA process for providing public input and ensuring the adequacy of the report. Toward that end, the degree of formality and specificity in the review of EIA reports varies between EIA regimes (Wood, 1995). The principal objectives for effective EIA report review are to give potentially affected interests the opportunity to note where relevant information is either lacking, inaccurate, potentially biased, or too difficult to understand. Specific criteria for adequacy 2 9 and quality may be used to review EIA reports. The reviewers may vary according to the particular EIA regime and the circumstances of the decision context (e.g., independent panels, consultants, and decision-makers). The effectiveness of the EIA report review depends on the thoroughness of the consideration that all relevant information receives. Decision-making As Wood (1995) notes, decisions are made throughout the EIA process in terms of how the process is conducted; however, the fundamental decision centers on whether or not the proposed action is approved or rejected. The conditions attached to an approval (e.g., the specific alternative, mitigation measures) represent important secondary aspects. The fundamental issue from a decision-making standpoint is the degree to which the decision reflects genuine consideration of the analysis provided in the EIA report and from other relevant stages of the EIA process (i.e., the substantive purpose of EIA). For this process to be credible, then, the EIA report must be completed, adequately reviewed, and used effectively in order to condition or deny the subject proposal if deemed necessary. The decision-making process should also be conducted in a manner that is reasonably objective and transparent. In addition to publishing any decisions, Wood (1995, p. 181) notes that: "It is obviously desirable, if the extent to which the EIA process is actually taken into account in the decision making is to be clear, that their reasons for making the decision include an explanation of how the EIA report influenced the decision." Beyond that, the availability of recourse to an appeal process and the efficiency of the decision-making process are important considerations as well. Monitoring and Follow-up Although it has generally been one of the weakest aspects of conventional EIA practice, monitoring and follow-up measures are increasingly considered an essential element for improving the effectiveness of EIA. As Sadler (1996, p. 126) observes, the generally poor development of post-decision EIA mechanisms represents a "systematic weakness of the EIA process." Without follow-up measures, EIA lacks the iterative process and continuity that would otherwise make each application of EIA more effective and a potentially useful learning experience towards long-term environmental management 30 objectives. Moreover, the lack of follow-up increases the risk that EIA processes will be undertaken in a more perfunctory manner (Sadler, 1996). There are a variety of follow-up measures that can be incorporated into EIA processes. As Wood (1996, p. 198) notes, a fundamental distinction can be made between "implementation monitoring" (i.e., has the proposed action been implemented in accordance with relevant conditions) and "impact monitoring" (i.e., the measurement of environmental impacts in order to test predictions, evaluate/adjust mitigation measures, and clarify uncertainties). A variety of specific monitoring and follow-up approaches are available, although there is little in the way of standards for applying them. However, it may be more useful to emphasize the objectives of EIA follow-up, and highlight the need to apply the best available context-specific approach for maximizing positive feedback.28 2.2.4 EIA Effectiveness According to Sadler (1996, p. 37): "A concern with effectiveness is an overarching and integral theme of EA theory and practice." However, as Sadler (1995) notes, environmental assessment "is widely recognised as falling short of realising its full potential for contributing to informed decision making." Therefore, the need to improve the effectiveness of EIA is now widely acknowledged to be an important goal in order to more fully realize the potential of EIA as a means of advancing better environmental decision-making. Efforts to improve the effectiveness of EIA continue in a wide range of contexts (e.g., academic research, informal efforts amongst EIA practitioners, and the continually evolving legal and administrative framework within which EIA is applied). Similarly, efforts to evaluate EIA reflect different practical and conceptual perspectives. An important distinction to make in this regard concerns the degree to which effectiveness is contingent upon how an EIA regime is conceptualized versus how it is implemented. Conceptual effectiveness centers on the procedural aspects of EIA (i.e., how the procedural elements are structured, 2 8 According to Sadler (1996, p. 127) the "objectives of the follow-up of the EIA process" are as follows: • ensure terms and conditions of project approval are implemented; • verify environmental compliance and performance; • cope with unanticipated changes and circumstances; • adjust mitigation and management plans accordingly; and 31 and their specificity regarding substantive issues). Implementation effectiveness is more contingent on contextual factors such as political influences, administrative competence, and public perceptions. Although these two dimensions of EIA effectiveness are interrelated, it is useful to maintain a distinction between them when analyzing effectiveness. For the purposes of this analysis, a general approach to the consideration of effectiveness will be adopted based on key issues identified by Sadler (1995, p. 6): Overall, EA can be judged by how successful the process is in performing the purpose(s) it was established to serve. The framework of evaluation can be drawn broadly or narrowly. At a minimum, EA is applied to identify, evaluate, and mitigate the adverse effects of individual projects and proposals. . . . In more advanced form EA is applied as a mechanism for sustainability planning, ensuring that development proposals and activities are consistent with the regenerative and assimilative capacities of natural systems. In addition: Put simply, the term "effectiveness" refers to whether something works as intended and meets the purpose(s) for which it is designed. In the case of EA, the overall evaluation of performance is undertaken by reference to the policy and institutional functions it is meant to serve. An EA process can only be fully understood and comprehensively evaluated in relation to the national or jurisdictional framework of decision-making within which it operates.... The litmus test of successful performance in this context is the extent to which better decisions follow and whether environmental objectives are realized (Sadler, 1996: pp. 37-38). These overarching criteria focus on the substantive value of EIA as a means of improving environmental decision-making. The composition of procedural elements is considered on the basis of how it supports the purpose of EIA (i.e., the principles outlined in section 2.7.2), and how effectively it can be expected to perform in the socio-political context in which it will be applied. Ultimately, improving the effectiveness of EIA is a matter of political will, because "EIAs will always be political" (Beattie, 1996). And, as Wood (1995) notes: "Every EIA procedure operates within a policy, political, legal and administrative context peculiar to the jurisdiction concerned. To be successful in achieving a real shift in the weight given to the environment in decisions, the EIA procedure needs to interact positively with it jurisdictional context." Therefore, although EIA has become a fundamental tool for improving • learn from and disseminate experience with a view to improving the EIA process and project planning and development. 32 environmental decision-making in each of the three NAFTA countries, its effectiveness continues to vary substantially given the wide range of jurisdictions and other contextual factors which condition the contribution EIA makes to advancing the sustainability of environmental decision-making. The broad criteria of EIA effectiveness presented above suggest the need for more specific criteria for measuring the degree to which EIA regimes achieve both procedural and substantive objectives for better environmental decision-making. Those criteria will not be developed in detail here. However, that issue will be elaborated on in the following sections. It is also worth noting that there are alternatives to the emphasis on decision outcomes as the principal measure of EIA effectiveness. As Bartlett (1994) posits, a more institutional focus to an environmental policy evaluation of NEPA suggests that it has been of much greater value than a decision outcome perspective indicates.29 Rather than viewing policy-making as an entirely controlled process, Bartlett (1994, p. 184) emphasizes the "constant discovery and the shaping of potential" within "organic interactive processes that can be partially understood and directed," but are "processes that ultimately are dependent on an institutional environment being changed by policy." 2.2.5 Limitations of EIA We should understand that EIA is not the only, nor a sufficient, answer to coping with the environmental problems of modem society. (Caldwell, 1989) This section provides an overview of the principal limitations that constrain the effectiveness of existing EIA regimes. Conventional EIA is widely criticized for a variety of perceived shortcomings in practice. For example, EIA is: predominately project oriented; inadequately referenced to broader environmental planning and management frameworks; readily co-opted by prevailing power interests; often emphasizes reductionistic and technocratic approaches to environmental analysis and impact evaluation; displaces other 2 9 In addition to its procedural focus on providing information to decision-makers: "NEPA shapes bureaucratic politics and economic development politics through the construction and elaboration of meaning and the establishment of new policy rules." Furthermore: "NEPA must be understood as a meta-policy, or a policy on policymaking, and as such must be understood and evaluated on an institutional level. NEPA imbeds ecological rationality—a way of thinking about actions, organizations, and ultimate ends and values—in political institutions, and its worth or merit must be evaluated with regard to that institutional transformation" (Bartlett, 1994: p. 181). 33 potentially more effective means of public empowerment in environmental policy and decision-making, and; EIA design and implementation is readily compromised by conflict of interest and politically expedient decision-making behavior. These points are often supported by unsatisfactory EIA performance in a variety of relevant contexts. However, these issues are debatable to the extent that they are presented as a systemic failure of EIA in principle. In any case, it is important to clarify the principal limitations of EIA as it has been applied to date. The following overview is not intended to be exhaustive. The intention is simply to briefly characterize some of the most conspicuous limitations of EIA as a general approach to environmental decision-making. These issues warrant consideration in the context of transboundary EIA as well. Limited Scope of Application The application of EIA is generally focused on large capital projects with relatively localized, physical impacts to the environment. The impacts of broader policy decisions, and the collective impacts of minor regulatory activities and routine management procedures are not generally subject to EIA procedures (Rees, 1988). Rees also asserts that "Sustainable development requires that the scope and institutional mechanisms for EA-like endeavors be extended to capture the full range of human activities significantly affecting the environment..." (p. 281). In this regard, the desirability of extending the application of EIA processes to policies, plans and programs is widely considered necessary in order for EIA to effectively influence environmental decision-making.30 Political Impediments As a decision-making technique administered by the administrative state, EIA is also a response to political interest representation. As Amy (1990, p. 60) notes: "The story of environmental decision-making techniques concerns not simply their intellectual advantages and disadvantages, but also the political advantages and disadvantages such techniques offer to important groups in society." A fundamental political problem with the NEPA EIA 3 0 The application of EIA to policies, plans, and programs is also referred to as strategic environmental assessment (SEA). Although there is great interest in SEA Sadler (1996, p. iv) observes that "SEA systems are still at a relatively early, formative stage. Many practical questions remain about procedures, methods, and institutional frameworks. 34 process, for instance, has been "that decision-makers do not use the EIS in the way it was intended, and so the EIS only rarely has a real effect on development decisions" (p. 61). Amy concludes that although better environmental decision-making techniques are essential for advancing effective environmental protection, they "...are largely useless unless the distribution of power in society ensures that these techniques will be utilized properly in both the public and the private sectors" (p. 76). Thus, existing EIA regimes are primarily procedural aspects of environmental decision-making that is highly constrained by its structural situation within political, economic, and social systems. As Amy suggests, the key limitation in this context is the degree to which an EIA system is conferred the ability to promote an equitable distribution of power amongst the affected interests in a given environmental decision context. However, Caldwell (1989, p. 10) advises that "...EIA cannot reasonably be expected unilaterally to induce environmental sensitivity and foresight in political leadership. Rather the growth of environmental concern in politics will strengthen and extend the process of EIA." Inadequate Consideration of Values Values are an inescapable dimension of any decision-making process, and EIA processes in particular. EIA processes have been criticized for too often representing values implicitly rather than explicitly in EIA processes. As Gregory et al. (1992: p. 62) observe with respect to the EIS process pursuant to NEPA: [NJumerous subjective judgments lie behind the choices that are made regarding impact identification, methods of analysis, and presentation format. These judgments express the analyst's values, reflecting what is important to those conducting the study and what they believe should be included in an impact analysis. Thus, the full range of stakeholder values is often poorly represented in EIA processes. This failure to represent values comprehensively leads to decisions that do not adequately represent "...complex public value tradeoffs among the objectives that characterize project alternatives" (p. 59). The "inability to cope with multiple and conflicting value judgments" compromises the effectiveness of traditional approaches to environmental decision-making (Cardinall and Day, 1998: p. 110). In fact, Cardinall and Day consider "the 35 ability to integrate diverse values, support of sustainable environmental management" to be a partial measure of effectiveness in this regard. Beyond the recognition of affected values, adequate consideration of values requires that values be effectively structured in order to provide insights regarding tradeoffs associated with different decision alternatives. Furthermore, values are central to the determination of what constitutes significance with respect to adverse environmental 31 impacts. Therefore, EIA processes that fail to explicate the values of all affected stakeholders will also fail to provide the insights that decision makers need in order to make good decisions. Evaluating Significance The evaluation of impact significance is perhaps the most challenging aspect of the EIA process. As discussed above, significance is relative to different stakeholder values, and interpretations of scientific information which generally involves uncertainties. Conventional EIA regimes have been criticized for failing to sufficiently reconcile these factors in the process of evaluating significance. Instead, EIA processes have often derived impact significance based largely on the implicit values and assumptions of the analysts and scientists involved in the technical aspects of the EIA. This has tended to mask the intractability of conflicting values and uncertainty inherent in most decision contexts. Moreover, the general emphasis on the application of EIA at the project level leads to decision-making that fails to address the cumulative significance of impacts. This has been termed the "tyranny of small decisions" (Odum, 1982) or "destruction by insignificant increments" (McTaggert-Cowan, 1976). Analysts such as Smith (1993) have stressed the need to develop more effective methods for evaluating significance in order to improve the overall effectiveness of EIA. Developing better methods for evaluating significance centers on the need to establish explicit criteria that recognize cumulative effects. Furthermore, these criteria may need to be 3 1 For instance, the significance of impacts is contingent on values. As Rappaport (1996, p. 67) observes: "It follows that in ultracomplex human systems, some effects are not simply linear outcomes of earlier actions. Between causes and effects - that is, between perturbing factors and responses to them - lie conceptions and evaluations of not only how the world is constructed and how it works but also how it should be constructed and how it should work. It is in terms of the latter (values) that the former (perceptions of actual conditions) are understood. Such values are, of course, culturally and even subculturally variant." 36 referenced to a broader initiative of "systematic identification and monitoring of cumulative negative trends in significant environmental variables" that are measured "in relation to permissible limits of ecological and social impact" as defined by "regional carrying capacities" (Rees, 1988, pp. 284-5). Rees adds: This approach also provides the missing context for project-specific EA. Critics of "traditional" EA have long observed that in the absence of a broader policy and planning context, without knowing potentially competing resource uses and values, it is impossible to assess the "significance" of impacts associated with isolated projects. By contrast, the carrying capacity framework enables individual project impacts to be evaluated, as they should be, in light of preceding development, opportunity costs, and the remaining capacity of biophysical and social systems to cope with stress (p. 286). EIA analysts outside of government continue to work on approaches to evaluating significance; however, there is little evidence to suggest that systematic efforts are effectively being made by policymakers to provide an overarching policy and technical basis for supporting more effective significance evaluation within existing EIA regimes. Addressing Uncertainty (Impact Prediction) As noted earlier, uncertainty is a persistent feature of environmental decision-making that exposes a systematic weakness of EIA processes that is directly linked to other aspects of EIA such as significance evaluation. As Gregory et. al. (1992, p. 61) observes: "Almost all environmental impact estimates are subject to uncertainty." However, the conventional expectation of EIA has often been that it will lead to a conclusive analysis regarding the consequences of a proposed action as long as enough information is generated (Berkes, 1988). This expectation has collided with the maturing concepts of ecosystem science that recognize the inherent variability and capacity for "surprise" (Ludwig et. al. 1993; Holling, 1986) in natural systems. Thus, EIA processes are often taxed beyond their ability to produce conclusive impact predictions for environmental decision-making, because the uncertainty involved "means that scientific and legal burdens of proof to demonstrate the effects of human activities on environmental or human health cannot be fulfilled" (Lemons, 1996, p. 55). Even aside from the false hope of certainty in most circumstances, Gregory et al. (1992) note the failure of most EIAs to at least be explicit about the nature of uncertainty in the impact be assessed and in the assumptions being employed by the analysts. Thus, the lack of 37 "an explicit and rigorous treatment of scientific uncertainty" can lead decision-makers "to accept scientific analyses of environmental problems as being more factual than is warranted" (Lemons, 1996: p. 59). Unreliability of Mitigation Measures Mitigation measures, and their configuration relative to different alternatives, are among the most important outcomes of EIA processes. However, the mitigations proposed in the course of an EIA process are not necessarily a reliable means of avoiding, reducing, or compensating for the adverse impacts they are meant to address.32 In addition, the inclusion of mitigation measures in an EIA process does not necessarily mean they are ultimately effective, or that they are mandated as part of the final decision. The result may be what Bass and Herson (1993) call "paper mitigation" which fails to address the specific environmental problem for which it was intended. Insufficient Follow-up and Compliance In spite of wide recognition that follow-up and post-project analysis would advance the effectiveness of EIA, this remains one of the weakest aspects of EIA in practice (Sadler, 1996). The principal reason for this appears to be an issue of political compromise given the reluctance of proponents to accept ongoing involvement with regulatory measures once they have received approval for their projects. Similarly, the capacity to enforce the conditions applied through an EIA process weakens overall effectiveness. From an institutional standpoint, follow-up measures and improved enforcement also demand additional budget and staff resources when both are typically insufficient already. Lack of Objectivity and Quality Control The quality of EIA processes, and EIA reports in particular, is strongly influenced by the level of objectivity, professional ethics, and mechanisms for quality control. As Sadler (1996, p. ii) suggests, one "critical challenge" is to bring "quality control into the EA process 3 2 For example: "In a one-year study conducted in 1987, EPA questioned the adequacy of mitigation measures in approximately 20% of the EISs that it reviewed. Of far greater concern was that, based on a selective review of more than 1,200 EAs and FONSIs, EPA estimates that approximately 70% contained either no mitigation or measures that were ineffective or inadequate under NEPA's definition of mitigation" (Bass and Herson, 1993: p. 75). 38 to help bridge the gap between its practice and potential." However, this area of concern touches on aspects of personal integrity and ethics that are difficult to evaluate. A review of relevant literature does not reveal a systematic analysis of these issues. Although professional integrity and quality control are widely recognized as critical aspects of ensuring EIA effectiveness, these issues are largely addressed on an anecdotal or case study basis. As Fernside (1994) illustrates, for example, there are structural forces that exert pressures on EIA practitioners to compromise their professional integrity. My personal experience with EIA administration has also provided repeated instances where there is a conflict of interest between the ostensible purpose and objectives of EIA, and the countervailing pressure to maintain profitability by satisfying project proponents. These aspects of EIA practice are subtle and potentially provocative. Procedural Versus Substantive Application of EIA The influence of EIA requirements on environmental decision-making outcomes is typically constrained by the degree to which EIA is interpreted as being a "substantive" versus a "procedural" legal requirement. NEPA in particular has been criticized because of the judicial rulings which have interpreted "...that the Act is understood as controlling only how agencies go about their decisionmaking not what they actually decide to do" (Rodgers, 1994: p. 810). "The original intention of EIA constrain, but not to control discussions." Prohibiting "...the taking of a decision on the action until an EIA report has been prepared and subjected to a fundamental requirement of any EIA system" (Wood, 1995: p. 183). Relationship of EIA to Decision-making A fundamental criticism of EIA is that decision-making too often fails to reflect the outcome of the EIA process. As Gibson (1993, p. 18) states: "[T]he tendency in discretionary decisionmaking will almost always be to compromise environmental assessment objectives in the face of other, immediate pressures." This follows from Sadler's (1996, p. 16) observation that: With few exceptions, the result of an EA is one of a number of factors taken into account in political (and administrative) decision making. Typically, these decisions, will involve a series of trade-offs among economic, environmental, social and other criteria.... Because the trade-off process takes place largely behind "closed doors", 39 there is, at best, only a generalized understanding of how decisions are actually reached in such cases. Decision-making that follows an EIA process without explicitly stating the basis on which a final decision was reached does not constitute either effective EIA or sound environmental decision-making. EIA analysts generally agree that there is little to be gained by conducting an EIA when the results are not reflected in the final decision. At the same time, it should be noted that expectations for better environmental decision-making must be set within a realistic administrative context. It would be better, of course, for decision makers to devote whatever resources and time were necessary in order to resolve environmental issues, however, there are other considerations regarding legal rights, and economic considerations that set limits on this. The necessity of balancing these factors must therefore be taken into account. Relationship of EIA to Planning and Environmental Policies The substantive influence of EIA requirements on environmental decision outcomes must also be considered in the broader institutional context regarding the applicability and specific levels of environmental protection required by law. The inception of NEPA in 1969, for instance, occurred at a time of "heightened environmental concern that saw the passage of several [other] important environmental acts" (Lockhart, 1996: p. 416). Thus, the emergent concept of EIA was situated within a broader ground swell of support for comprehensive environmental policies. Analysts have conflicting perspectives regarding the degree to which the broader environmental policy and planning context is adequately supportive of effective EIA. There is general agreement that: "An E A process can only be understood and evaluated in relation to the policy and institutional framework in which it operates" Sadler (1996, p. ii). This suggests the need to explicate the relationship of EIA to relevant policies and planning processes in order to clarify how the application of EIA and broader policy objectives can be made more mutually supportive. 40 Failure to Promote Sustainability It's an open secret in the federal government: Virtually anything will get approved so long as you call it "sustainable development." The Globe and Mail, October 18, 1995 Although the genesis of EIA as a formal aid to decision-making predated the concept of "sustainable development,"33 the same goals and principles were clearly intended in the stated purpose and objectives of earlier EIA laws such as N E P A . 3 4 The substantive goals of EIA have always been consistent with sustainable development, even i f the term has not been used explicitly. Sadler (1996, p. 183) asserts that " E A is acknowledged to be an important tool for giving effect to sustainable development objectives in planning and decision making." However, few would argue that the implementation of EIA to date has led to the realization of sustainable development. In fact, the general failure of EIA to achieve sustainability objectives in the context of environmental decision-making is one of the principal criticisms of EIA (Rees, 1988; Gibson, 1993). On the other hand, the indeterminate qualities of sustainable development as a conceptual framework for environmental decision-making need to be acknowledged. As Luke (1995, p. 30) observes: "Most sustainable development discourses are extremely conflicted." And Dorcey (1991) concludes that: "Given the value-laden nature and ethical content of the sustainable development concept, it is not surprising... .that each individual has their own definition of sustainable development." In spite of conflicting perspectives, Cocklin (1993) notes that a commonality regarding these different perspectives is that "the term sustainable development refers to a holistic view of how society, economy and environment should evolve." This suggests that EIA and sustainable development share a co-evolutionary relationship in which EIA effectiveness and broader sustainable development policies must be improved in tandem. In this way, EIA serves "as an important tool for giving effect to sustainable development objectives in planning and decision making. In practice, [however,] the use of E A as a sustainability mechanism depends on the scope and integrity of the E A 3 3 As is it currently used, the term "sustainable development" was adopted by the Brundtland Commission in their 1987 report Our Common Future, and was essentially defined as "development that meets the needs of the present without compromising the ability of future generations to meet their own needs." 41 process, the larger mix of environmental and economic policy and planning instruments that are used for decision making, and the degree of policy commitment to sustainable development" (Sadler, 1996: p. iv). Better criteria need to be developed in order to operationalize sustainability principles and objectives in practice. EIA processes can provide mechanisms for ensuring that such criteria are incorporated into environmental decision-making. But EIA systems should not be faulted for the institutional failure to establish overarching principles and policies for operationalizing sustainability along with the commitment needed to ensure their implementation. In fact, successfully operationalizing sustainability principles throughout 35 governance institutions would largely obviate the need for conventional EIA processes. Inefficient Implementation As Gibson (1993, p. 21) notes: "Inefficiency in environmental assessment breeds hostility as well as waste, and the former is a formidable enemy to the purposes of environmental assessment." An inefficiently structured or administered EIA process (i.e., one that is unnecessarily inconsistent, unclear, or slow) inhibits the ultimate goal of "proponents who automatically, think, plan, and act with sustainability imperatives in mind." Inefficient EIA implementation may also generate a political backlash that weakens the substantive application EIA. Countering such a backlash may pressure decision makers to place less weight on environmental values, and displace effort that could otherwise be applied to the development of more progressive EIA implementation and related policy development. 2.2.6 Improvements in EIA Policy and Practice In spite of its limitations, EIA has the potential to improve environmental decision-making and advance environmental policies more readily than other mechanisms. In specific decision contexts, EIA can force the explicit consideration of a wider range of issues than 3 4 For instance, Weiner (1997, p. 61) notes that NEPA's goal articulated in Section 101(a) which seek to "create and maintain conditions under which man and nature can exist in productive harmony" reflects the same principle which has since been termed "environmentally sustainable development." 3 5 As Gibson (1993, p. 23) suggests: "Eventually, the combination of efforts to establish sustainability criteria, to link planning and assessment, and to rationalize regulatory approvals and monitoring may lead to the gradual dissolving of assessment requirements and decisionmaking into a coherent, comprehensive, and relatively efficient larger regime devoted to achieving community and ecological sustainability." 42 would otherwise be required under existing regulations. This is the "gaps and overlaps" role in the regulatory process that NEPA was intended to address (Weiner, 1997: p. 63). EIA processes may therefore provide a potential point of leverage for environmental considerations that would otherwise be waiting for relevant policies to be established. Ultimately, EIA processes that have a modicum of political and administrative support lead to more proactive behavior by proponents who would otherwise not be accountable or as motivated to give serious consideration to environmental impacts. Although it is not a sufficient means in itself, EIA provides a catalytic mechanism for inducing greater ecological rationality in the context of institutionalized decision-making processes (Bartlett, 1990). Existing EIA regimes have been the focus of extensive efforts to address the limitations of EIA in order to improve the effectiveness of EIA as a means for improving environmental decision-making. A systematic overview of these efforts is beyond the scope of this analysis. It suffices to note that the all aspects of EIA practice have been the subject of ongoing analyses and institutional development since the inception of NEPA in 1970. This ongoing, albeit largely ad hoc, research program and policy evolution has led to a variety of outcomes: • EIA requirements are being extended to new decision contexts; • national and subnational EIA laws continue to be reviewed and revised; • new EIA regimes have been established internationally; • specific variations on the basic EIA model have been developed (e.g., cumulative effects assessment, strategic environmental assessment, social impact assessment); • impact assessment methods and mitigation measures have been improved; • new standards and methods for public participation and consultation have been promulgated; and • "sustainability assurance" has increasingly become the focus of EIA. In many cases, however, these developments have been more conceptual than practicable given the contextual limitations in which existing EIA processes function (e.g., political, administrative, and socio-economic). For example, extending strategic environmental assessment into a more politically sensitive realm of decision-making has not received strong political support. To do this requires the assertion of greater inclusivity, transparency, and uncertainty of outcomes amongst decision-makers who are not eager to relinquish their existing level of control. Other approaches such as cumulative effects assessment face 43 resistance because of the added analytical complexity and expense that may be required. Nevertheless, a richer palette of options as been developed for applying EIA more effectively provided there is sufficient political will to make the necessary adjustments and resources available. 2.2.7 The Internationalization of EIA It should have been clear a quarter-century ago that impact analysis had become a global imperative. We are only now beginning to recognize the need for its international implementation. (Lynton Caldwell, 1989: p. 8) The central premise of this analysis is that the transboundary effects of human activity globally, particularly given its acceleration from the liberalization of international trade and the mobility of capital, require correspondingly international approaches to EIA. As Robinson (1992) suggests, "worldwide EIA experience provides guidance on how jurisdictions using EIA should cope with global, transnational, and transboundary environmental impacts." However, worldwide experience with EIA has occurred predominantly at the national and sub-national levels. The development of international EIA policies and institutional frameworks is a more recent phenomenon. The internationalization36 of EIA has emerged in a variety of forms: (1) the consideration of potential transboundary impacts under the terms of national or sub-national EIA policies, or amendments to require consideration of transboundary impacts;37 (2) the adoption of international agreements with specific provisions for EIA; (3) the evolving principles of 3 6 The diffusion of EIA processes and technology, and its adoption by a many national governments throughout the world, represents one form of internationalization. However, the intended meaning here emphasizes EIA processes applied in the context of multilateral environmental agreements or regimes - in other words, the procedural and substantive aspects of EIA specific to particular international contexts. "Internationalization," in this sense, is "a means to enable nation-states to satisfy the national interest in areas where they are incapable of doing so on their own" [e.g., force consideration of their environmental concerns for activities within other countries] (Delbrick, 1993). "Internationalization. . . refers to the cooperative acitivities of national actors, public or private, on a level beyond the nation-state but in the last resort under its control." The "internationalization" of EIA may thus be seen as an integral part of a broader "internationalization" both of environmental problems and the decreasingly state-centered approaches to addressing them as discusses by Hahn and Richards (1989, p. 422). 3 7 The extraterritorial application of domestic EIA provisions varies between countries and sub-national jurisdictions. Efforts are generally being made to require the consideration of transboundary impacts in domestic EIA processes, with mixed success. In the case of NEPA, the issue of extraterritorial application has been a contested issue of statute interpretation. According to Rodgers (1994, p. 169) " is safe to predict that the international consequences of NEPA will remain caught within that shadow of doubt that distinguishes Presidential from Congressional authority over foreign affairs in the U.S. Constitution." However, amendments to reconcile this issue have been proposed. 44 customary international law; (4) EIA administration or oversight by a supranational authority,39 and (5) the development of international standards for EIA practice.40 The internationalization of EIA generally, and transboundary EIA processes in particular, reflect the emerging role of EIA in global and regional contexts where unilateral approaches to environmental decision-making are at odds with the growing recognition that ecological interdependencies require effective international cooperation. In this sense, Principle 17 of the Rio Declaration is clear indication of the international community's commitment to EIA: Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority. Similarly, Robinson, (1992) asserts: It is becoming a norm of customary international law that nations should engage in effective EIA before taking action that could adversely affect either shared natural resources, another country's environment, or the Earth's commons. The consideration of global commons issues is an important dimension of EIA internationalization. At least in the case of the comprehensive regime for the global commons of Antarctica, the level of specificity includes explicit EIA provisions. As opposed to other global commons, however, Antarctica consists of a more discrete geographical area. And as Soroos (1998, p. 34) observes, regimes such as Antarctica, outer space, and the oceans "were created partly to preclude national claims and keep the affected regions open to use by the international community as a whole." Thus, the manner in which transboundary 3 8 Customary law evolves from the consistent practice of states accompanied by their conviction that they are legally bound to adhere to this practice" (Brunee, 1993). However, because sovereign states can assert their own interpretation of customary law and related procedural rules, it is often ineffective. "As a result, customary international rules are perhaps best seen as general guidelines that outline proper behaviour but cannot provide the carefully crafted solutions essential to addressing major global environmental problems" (p. 18). 3 9 Cooper (1986) discusses a "form of supranational EIA whereby some international body would have responsibility for administering the prodecure." However: "This purely international variety of EIA is not... widespread or... sophisticated." Also see Kelly (1997) regarding reluctance of states to create supranational environmental authority capable of making binding decisions. 4 0 Maintaining minimum performance standards for EIA could be accomplished through "codifying international guidelines and principles" (Sadler, 1996: p. v). The promulgation of such international standards for EIA has been initiated through non-binding language in international environmental agreements such as the UNEP Goals and Principles of Environmental Impact Assessments, and less directly in specific international standards such as the ISO 14,000 environmental management requirements. 45 environmental decision-making regimes are formed for global commons may be motivated by different political considerations than other transboundary regime contexts. Regardless of specific regimes, it is worth noting that global commons issues are an inherent transboundary element in any environmental decision-making process. However, the level of consideration these receive is generally minimal, because the frameworks for referencing smaller decisions to the integrity of global systems have not been effectively articulated or widely adopted. This issue is seen as an emerging aspect of EIA by some analysts such as Bass and Herson (1993, p. 69): Increasingly, the scientific community and public are demanding that an EIS discuss whether the proposed action or alternatives contribute cumulatively to...[impacts on the global commons] Although some might argue that any quantitative evaluation of such impacts would be remote and speculative, they should at least be described qualitatively in an EIS when relevant. Nevertheless, consideration of the global commons is an important aspect of transboundary environmental decision-making.41 The above discussion on the internationalization of EIA suggests that transboundary EIA should be conceptualized more broadly than the conventional focus on transboundary EIA as the relationship between a set of national EIA regimes with contiguous borders. It may also be more appropriate to think in terms of transboundary or "international" EIA as a specific form of international environmental policy analysis, rather than just a variation on the application of EIA by different domestic EIA regimes. Kass and Gerrard (1991) emphasize the difference between the purpose and scope of domestic impact assessment systems and international impact statements: Unlike a NEPA EIS (which is designed to permit informed governmental decision-making at a given moment), the international EIA is intended to either prevent (or at least provide notice of) transboundary environmental impacts or to reconcile, to the extent feasible, a multilateral agency's development agenda with environmental protection. The international EIA seeks less to provide a snapshot of the environmental pros and cons affecting an agency's decision than to articulate an ongoing framework for the identification and management of environmental effects, with far greater 4 1 Presidential Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, 1979, offers an example of how EIA requirements may be expanded in this regard. The executive order "furthers the purpose of NEPA and requires agencies to implement procedures for considering the environmental effects of major federal actions that occur outside the boundaries of the United States." An EIS is required for "a major federal action that significantly affects the global commons outside the jurisdiction of any nation... in which nations have common interests" (Kreske, 1996: p. 142). 46 emphasis than under NEPA on post-impact monitoring and negotiation between affected parties. On the other hand, the opportunities for judicial review (or for interested parties or NGOs to challenge an EIA) are far more restricted than under current U.S. practice. They add: International environmental impact assessment is still in its early stages, and neither the quality nor the enforceability of ELAs has yet been firmly established in practice... However, this may require substantially different analytical approaches, as opposed to simply comparing and/or endeavoring to harmonize procedural requirements within national contexts. It requires the consideration of issues related to the international environmental regime formed by a set of affected nations with a shared interest in working to resolve transboundary environmental problems. 2.2.8 Summary The preceding analysis suggests that, although it has become well-established as a procedural model for environmental decision-making throughout the world, the absolute value of EIA in terms of improving environmental decision-making is debatable. There is no clear answer to the debate regarding the substantive value of EIA as a means of improving environmental decision-making, particularly at the international level. As analysts such as Fernside (1994) continue to document, manipulating the application of an EIA process in order to support a preferred outcome is not difficult given the availability of biased technical experts and the political pressure that accompanies important environmental decisions. On the other hand, a review of the literature suggests that the alternative models for environmental decision-making developed by critics of EIA would be equally susceptible to political manipulation or other countervailing weaknesses in practice. In summary, EIA provides a useful model for environmental decision-making in spite of legitimate criticism regarding it implementation to date. However, it is important to be clear about EIA as a model versus EIA as a loaded term for whatever part of a particular EIA system someone may want to reference (e.g., a NEPA EIS). Much of the criticism for EIA is based on higher expectations regarding the resolution of environmental uncertainty and conflicting values within the EIA process. However, a distinction needs to be maintained 47 between the role of EIA as an aid to decision-making and the decision-making process itself. The link between these two levels involves contextual elements that determine the discretion available to decision-makers, and how heavily their final decision is influenced by the substance of a given EIA process. This political limitation transcends the effectiveness of EIA; it represents the inherent limitations facing any environmental decision-making which is necessarily based on the prevailing world views regarding the relative importance of environmental values. On the other hand, it is important to acknowledge the serious shortcomings of current EIA implementation and the intractability of the structural impediments to improving the effectiveness of EIA. A working assumption of this analysis is that improving EIA will likely be part of larger and incremental process of social learning and administrative evolution.42 EIA is therefore not advocated here (as some other analysts have) as one of the primary mechanisms for achieving sustainable development. Nevertheless, EIA is likely to be used increasingly for environmental decision-making in transboundary contexts; therefore, it is worthwhile to analyze how the effectiveness of transboundary EIA might be improved. 2.3 TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT 2.3.1 Defining Transboundary EIA A review of the environmental impact assessment literature does not reveal a standard definition for transboundary EIA. 4 3 In general, the meaning of transboundary EIA seems to be implicit in the definitions that are presented for environmental impact assessment and transboundary impacts. Therefore, transboundary EIA can simply be taken to mean the application of EIA in a transboundary context or environmental assessment that considers transboundary impacts. These definitions do not necessarily imply that In the case of NEPA Rodgers (1994, p. 829) suggests that it's implementation has proceded through several different "eras" since it's inception in 1970: (1) a period of noncompliance; (2) a period of formal [non-substantive] compliance; (3) integrated compliance from 1980 to the present; and potentially (4) a future period of enthusiastic complicance. And as Wenner 1993: p. 176) notes: "The history of international environmental controls continues to be one of incremental movement from bilateral diplomatic negotiation about damage that has already occurred to multinational attempts to prevent harm before it occurs" [largely due to national self-interest]. 4 3 The terms: transfrontier, transboundary, and transnational may be used interchangeably (Harvard Law Review, 1992; Popeil, 1995). 48 transboundary EIA only occurs in a contiguous, binational context. Transboundary externalities may involve the interests of multiple countries, and impacts may span non-contiguous areas as in the case of impacts on migratory species. It should also be emphasized that the term transboundary does not necessarily need to mean international boundaries, although this is generally the focus of current transboundary EIA regimes and analyses. Transboundary EIA could also refer to transboundary relationships at other levels of jurisdiction, e.g., Canadian provinces, U.S. and Mexican states, and other quasi-sovereign entities such as Native American governments.44 The characteristics that distinguish a transboundary EIA context from domestic EIA contexts are based on the nature of transboundary environmental decision-making, including the following: • potential adverse environmental impacts affect extra-territorial interests • mechanisms for participation in EIA process should include, and ideally fully empower, affected transboundary parties • unique institutional arrangements may be required to implement credible EIA processes in specific transboundary decision contexts • decision-making considerations encompass international environmental norms and standards as set forth in international agreements/treaties or as established through customary international law • weighting of risks and benefits requires consideration of transboundary stakeholder values and perspectives • greater emphasis on negotiation between affected parties is often required • process more likely to be used for establishing ongoing framework for the identification and management of adverse impacts (e.g., post-impact monitoring) • recourse to judicial remedy or some other dispute resolution process tends to require international or supranational entity • failure to reach satisfactory decision may trigger or exacerbate international conflicts with broader political repercussions • attention from, and intervention by, higher level political actors is more likely • international diplomacy protocols may complicate procedural requirements and the formalization of decisions. 4 4 For example, Lazarus (1998) discusses recent U. S. Supreme Court decisions regarding the transboundary disputes over water quality regulation involving tribal, municipal, state and federal jurisdictions. See Nelson (1998) regarding the sovereignty considerations of U. S. states. Another example is the "Three Sovereigns Process" recently initiated in the Columbia River Basin between state, tribal, and federal resource managers (Crampton, 1997). Transboundary EIA could potentially be a disputed issue in these contexts as well. 49 These contextual characteristics highlight important implications regarding the application of EIA to transboundary environmental decision-making, and suggest how the objectives of EIA need to be adjusted accordingly. 2.3.2 Objectives of Transboundary EIA In essence, transboundary EIA extends the goals and objectives of EIA across political and jurisdictional boundaries. The fundamental purpose of transboundary EIA is to ensure that the benefits of participation and accountability in environmental decision-making are not limited to the interested parties and ecosystem functions within the jurisdiction in which a given action is being proposed. Integrating transboundary consultation through EIA is also a means of reducing international disputes (Wood, 1995: p. 229). The full range of limitations that inhibit effective implementation of EIA generally may present even greater challenges in transboundary environmental decision contexts, because of the additional transboundary considerations listed above. On the other hand, transboundary EIA issues may also be addressed with greater persistence and administrative ingenuity, because of both the need to find durable resolutions to international disagreements and the potential to negotiate more creative problem-solving approaches. 2.3.3 Purpose of TEIA The relative emphasis on the procedural versus substantive value of EIA remains a critical issue in transboundary contexts. The procedural aspects of ensuring reasonable notification and sharing of relevant information regarding potentially adverse environmental impacts to affected transboundary parties present relatively low hurdles for transboundary EIA implementation. The substantive role of actually improving environmental decision-making is a much more formidable objective. The potential substantive influence of transboundary EIA would be promoted through the strongest possible consideration of environmental values in cases where the party of origin might otherwise weight environmental consequences at a lesser level than a neighboring country. One of the key advantages of EIA policies is the opportunity they provide to examine the applicability of information that suggests the need for higher standards (e.g., mitigation, 50 alternatives consideration) than would otherwise be required under existing domestic or international environmental policy. Environmental policy tends to lag behind what might be required for effective environmental management based on state-of-the-art knowledge with respect to specific issues. The EIA process allows such issues to be considered in particular decision contexts, whether or not a specific environmental policy has been put into effect. As with the intended spirit of the NEPA EIA model, rather than promoting perfunctory consultation and analysis for the sake of procedural compliance, transboundary EIA regimes should aim to change the state-centered behavior of governments regarding environmental decision-making by establishing a procedural standard for consideration of extra-territorial values and interests. Although extending consideration of potentially adverse impacts to parties beyond national boundaries may improve the decision-making to some extent, genuine effort must also be facilitated which advances the substantive goals of EIA. In other words, the fundamental issue of facilitating better transboundary environmental decision-making should be strongly emphasized. 2.3.4 Existing Transboundary/Multilateral EIA Regimes A variety of transboundary EIA regimes have been established.45 In a general sense, numerous transboundary EIA regimes have been established through instruments of international environmental law which include requirements for EIA under certain circumstances. However, as Sands (1995) explains, "prior to the adoption in 1985 of the EC Directive 85/377 on Environmental Impact Assessment, the 1991 UN ECE Convention on Environmental Impact Assessment in a Transboundary Context (1991 Espoo Convention), and the 1991 Protocol on Environmental Protection to the Antarctic Treaty, international guidance on the nature and extent of an environmental impact assessment or the use to which it should be put was limited."46 These treaties each represent specific transboundary EIA regimes that share common features; however, they are each situated and configured 4 5 Domestic EIA provisions for the consideration of potentially significant transboundary impacts and consultation with neighboring countries are not represented here as existing transboundary EIA regimes per se. Although such transboundary provisions are relevant, the emphasis here is on international agreements with explicit procedures related to transboundary EIA. 4 6 The issue of ratification needs to be considered with respect to these agreements. "The entry into force of legally binding agreements depends on the agreed minimum number or thresholds or ratifications. While high thresholds may be justified by a desire to ensure a high degree of instant uniformity and to avoid competitive 51 differently based on specific political and geographic factors. In addition to the Espoo Convention, EC Directive and Antarctic EIA regimes, the UNEP's Goals and Principles for EIA and the EIA provisions of the Cuixmala Treaty are examined. These latter two regimes provide additional perspectives on conceptual models for global and North American EIA regimes respectively. The Espoo Convention Perhaps the most notable existing multilateral EIA regime is the Convention on Environmental Impact Assessment in a Transboundary Context established under the auspices of the United Nations Economic Commission for Europe (UN/ECE) in 1991.47 Because this convention was finalized in Espoo, Finland, it is generally referred to as the Espoo Convention. The Espoo Convention "is the first multilateral agreement to make detailed provisions for transboundary procedural obligations in cases of environmental risk" (Birnie and Boyle, 1992: p. 105). These obligations included several innovations regarding state behavior in the context of transboundary environmental decision-making.48 The Espoo Convention established the clearest precedent for transboundary EIA at the international level. Its member countries (although all of them have not ratified the convention) constitute a broad geographic and socio-economic cross-section spanning North America, Europe and Central Asia. The applicability of the Espoo Convention in North America is incomplete. The Canadian Framework for Environmental Assessment Harmonization explicitly commits federal and provincial governments to "...adhere to the provisions of the UN ECE disadvantages for early participants, the drawback is long delays in implementation...Parties may also apply agreements on an interim basis (as under the Espoo Convention)" (Sand, 1992: pp. 13-14). 4 7 As of July 16, 1998, 21 of the 55 member countries of the UN/ECE have ratified the Convention (shown with *): 'Albania* •Andorra •Armenia* 'Austria* •Azerbaijan 'Belarus 'Belgium 'Bosnia and Herzegovina 'Bulgaria* •Canada* 'Croatia* 'Cyprus 'Czech Republic 'Denmark* 'Estonia 'Finland* 'France 'Georgia 'Germany •Greece* 'Hungary* 'Iceland 'Ireland 'Israel 'Italy* 'Kazakhstan 'Kyrgyzstan 'Latvia 'Liechtenstein* 'Lithuania •Luxembourg* 'Malta 'Monaco 'Netherlands* 'Norway* -Poland* 'Portugal 'Republic of Moldova* 'Romania •Russian Federation «San Marino 'Slovakia 'Slovenia 'Spain* 'Sweden* -Switzerland* 'Tajikistan 'The former Yugoslav Republic of Macedonia 'Turkey 'Turkmenistan 'Ukraine 'United Kingdom* 'United States • Uzbekistan 'Yugoslavia 'European Community* 4 8 "Compared to most other international treaties on environmental protection, the [Espoo] EIA Convention is innovative in that it: (1) provides specific routines for notification and consultation (although much remains to be done to have a functioning system); (2) advances the EIA concept in international law; and (3) implies a recognition that the implementation of EIAs in the international context cannot rest only upon the states, but must also include non-state actors" O^bbesson, 1999, p. 54). 52 Convention on EIA in Transboundary Context." On the other hand, the legal basis for implementation and enforcement of the convention by the United States is unclear (Battle, 1995).49 Mexico is not a party to the Espoo Convention, because it is not a member of the UN/ECE. Nonetheless, the Espoo Convention has been used as a conceptual basis for negotiating the transboundary EIA agreement pursuant to the NAAEC (Connelly, 1999). EC Directive 85/337 Transboundary environmental policy joined the broader agenda of multilateral governance in Europe in 1973 as part of the action program set forth by the European Economic Community (Jordan, 1998). Ultimately, the European Directive on Environmental Impact Assessment 85/377/EEC was approved in 1985 after a series of less explicit EIA provisions during the preceding years (Wood, 1995).50 As with other environmental laws under what would later be called the European Union (EU), Directive 85/337 established a "common foundation" for EIA that was primarily intended to "harmonize environmental controls in the EU in order to avoid distortion of competition" (Marr and Wood, 1996: p. 217). As in the case of the NAAEC, the primary impetus was environmental harmonization in the context of a continental trade liberalization regime. Another objective of the Directive was to provide a suitable means of advancing the EEC's environmental policy objectives for the prevention of environmental degradation as early as possible in the decision-making processes (McSwiney, 1989). As Wood (1995, p. 32) notes: "The EIA Directive represents the first European Union intrusion into the planning domain, and has major repercussions to member state decision making and practice." Flexibility was required in order to reach agreement, so the principles to be required were set forth at the Community level "while 4 9 "The [Espoo] convention will not change the NEPA process, but rather will extend formal involvement to the citizens of a country affected by significant adverse environmental impacts originating in another country. For the United States, this will primarily mean interaction between Americans and Canadians. We are currently working with U.S. and Canadian agencies toward implementation of the convention" (Clark, 1993: p. 6). 5 0 Directive 85/337 on the Assessment of the Effects of Certain Public and Private Projects on the Environment was adopted on June 27, 1985. According to Kass and Gerrard (1991): "Under EEC law, directives are obligatory and are directly applicable in the 12 [now 15] states." The member states include: Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxemborg, Netherlands, Portugal, Spain, Sweden, and the United Kingdon. Other countries have applied for membership as well. The Directive was later amended with the adoption of Council Directive 97/11/EC of March 3, 1997. Member states have until March 14, 1999 to implement the Directive. 53 leaving Member States free to introduce these principles into their existing law and practice in the way that seemed best to them" (McSwiney, 1989: p. 133). The EU's EIA regime has assumed the lead role in institutionalizing multilateral EIA on a variegated regional level. In spite of somewhat disparate institutional capacities and political support for EIA, the strong trend of economic integration in the geographical context of Europe supports the need to ensure that a durable and effective transboundary EIA regime is established. According to Jordan (1998, p. 14), in spite of general concerns regarding economic integration, "many people in the EU countries have more faith in the... [the EU's] environmental institutions than they do in those of their own governments." In order for the implementation of the EIA Directive to reward that faith by promoting better environmental decision-making, however, improvements will need to be made in the substance of the Directive and the effectiveness of its implementation by member states.51 Antarctic Protocol on Environmental Protection The role of EIA in the context of the Antarctic Protocol on Environmental Protection52 represents an important example of a multilateral EIA sub-regime. As Russell (1993, p. 24) notes: This international agreement is certainly the most significant and comprehensive environmental protection mechanism ever conceived for the Antarctic (and perhaps the rest of the world). [Inter alia] It....ensures environmental impact assessment procedures are followed ... .[and] represents a clear recognition that protection of the Antarctic environment requires international co-operation through a mechanism of regulation, openness and proactive planning. As such, the protocol may serve as a model for other global environmental protection regimes. The Antarctic Treaty System is a relatively successful example of reconciling conflicting claims of sovereignty and establishing a multilateral regime for natural resource protection (Joyner and Theis, 1997). To a large degree, that success reflects the unique geographical and geopolitical context that places Antarctica in a class by itself in terms of international 5 1 For example, in terms of expanding the scope of application for the EIA Directive, Brown (1997) argues that the scope of application should be expanded to include national defense projects. Other analysts emphasize the need to incorporate requirements for coverage of policies and programs, and amendments regarding this have been proposed (Sadler, 1996). To address the uneven effectiveness of implementation between member countries, ongoing efforts will be required to promote upward harmonization of EIA in practice (Wood, 1995). 54 environmental regimes. As Russell (1993) suggests, the singular geographical context also affords opportunities for implementing international environmental cooperation measures that may not be possible elsewhere. The specific EIA provisions of the Antarctic EIA Protocol are set forth in Article 8, and Annex 1. Because of Antarctica's pristine and often fragile environmental qualities, the EIA Protocol "is based on the principal that all activities in the Antarctic should be subject to an EIA....[and] some form of assessment is required even to conduct a field trip" (Lyons, 1993: 114). The level of assessment is based on whether the likely level of impact of a proposed activity is, or is less than or more than, "minor or transitory" based on an "Initial Environmental Assessment." If impacts are determined to be more than minor or transitory a "Comprehensive Environmental Evaluation" is required. The Annex 1 on EIA provides some additional details regarding procedural and content requirements for environmental assessment. However, according to Lyons (1993, p. 111): [Operational staff, planners, and scientists... .who were perhaps not consulted closely in the negotiations of the terms of the Protocol... .[are] left to interpret in practical terms the statements of principle and legal requirements, and to incorporate realistically the Protocol's intent, procedures, and requirements into their decision-making processes and day-to-day operations. Cuixmala Treaty The Cuixmala Model Draft Treaty for the Protection of the Environment and the Natural Resources of North America (Cuixmala Treaty) was prepared by the International Transboundary Resources Center's (CURT) Trilateral Legal Experts Team and finalized in January of 1993 (Szekely et al, 1996). The Cuixmala Treaty is a model formulated by non-governmental analysts, and has not been adopted as an actual treaty. Although it is not an existing transboundary EIA regime, the Cuixmala Treaty is included here because it proposes specific provisions under Article 31 (Mandatory Prior Environmental Assessments) specifically relating to the integration of EIA into a continental environmental regime for North America. The provisions of Article 31 thus provide a partial conceptual model for a de facto transboundary EIA regime for North America.53 These provisions address most of the 5 2 The Protocol on Environmental Protection to the Antarctic Treaty was signed on October 4, 1991 by the 26 consultative member countries of the Antarctic Treaty System. 5 3 The provisions of Article 31 can be summarized as follows: 1) Establish or strengthen EIA procedures to ensure prior evaluation of significant adverse transboundary effects. 55 shortcomings o f conventional EIA discussed above, albeit in a rather generalized manner. Nonetheless, it provides a basic conceptual approach to a multilateral EIA regime that has been developed specifically for the North American context. United Nations Environment Programme The United Nations Environment Programme (UNEP) is worth noting here, 5 4 because it is arguably the most proximate existing model for an agency o f global environmental governance,5 5 and it has advanced international principals and guidelines for E IA . 5 6 Although 2) Evaluation shall include cumulative, long-term, indirect, long-distance, and transboundary effects. 3) Designation of national authorities to ensure that EIAs are conducted openly and effectively, and that decisionmaking is based on genuine consideration of EIA. 4) Follow-up reviews for compliance with conditions and effectiveness of mitigation. 5) Transboundary EIA of policies and programs. 6) a) ensure sufficient institutional capacity to effectively administer EIA requirements, and to deny approval if necessary; b) ensure effective public participation; c) establish procedures to ensure compliance with EIA regulations. 7) Provide interim measures to ensure application of EIA requirements. 8) Requirement for proper notification. 9) Ability to deny approval of proposals for which EIA requirements are not provided. 10) Effective means of recourse for any parties adversely affected by the failure to comply with EIA requirements. 5 4 UNEP was created under an international environmental agreement reached during the Stockholm conference of 1972, thus becoming one of the first organizations for promoting international environmental governance (Soroos, 1994). 5 5 See Delbriick (1996), for example, regarding the potential role of the United Nations in promoting, inter alia, a global governance regime that would address transboundary environmental issues. However, Kelly (1997, p. 461) asserts that: "Although UNEP attempts to serve clearinghouse for international environmental agreements, it fails to coordinate the various global and regional environmental efforts around the world and is not empowered with authority to act. Short of establishing an entirely new institution, the reformation and strengthening of the UNEP has been proposed by NGOs. ." Young (1997, p. 274) is also critical: "In the realm of environmental affairs, the obvious inadequacy of [sustainable development] initiatives... highlights the limited capacity of the UN to solve problems involving the relationship between humans and the environment." In either case, improving the international authority and capabilities of the UN is a prerequisite for the UN to become credible supranational authority for global environmental governance. 5 6 "UNEP has undertaken initiatives in developing principles and guidelines for EIA at national, regional, and international levels. [UNEP's Goals and Principles of EIA (1987)]... were of necessity of the most basic and essential nature, since they were to be applied in countries with varying experience, traditions, legal systems, level of economic development, and availability of trained personnel. They were also of a recommendation nature and were designed to form the basis of national legislation and for bilateral and regional agreements. Together, the goals and principles were intended to identify the precepts essential to effective EIA. The UNEP went on to formulate these goals and principles into a set of EIA guidelines and procedures for developing countries, as they undertook major development projects" (Malik, 1995: p. 96). UNEP's Goals and Principles of EIA of 1987 can be summarized as follows (Gilpin, 1995: pp. 83-84): 1) Prior consideration of potential impacts before undertaking projects. 2) Adherence to criteria for determining significance that is clearly defined by legislation, regulation, etc. 3) Identification and analysis of significant impacts through EIA process. 4) At a minimum, EIA should include: (a) description of proposal; 56 UNEP's EIA guidelines and principles are primarily intended for the benefit of developing countries with insufficient institutional capacities to establish detailed EIA regimes on their own, the content and process by which the guidelines and principles were developed reflects an international standard (albeit non-binding) for applying EIA. 2.3.5 Comparative Analysis The existing transboundary EIA regimes discussed above share common features and raise issues of overlapping application in some cases. With the exception of the Espoo Convention, all of the transboundary EIA regimes discussed above are part of more comprehensive multilateral environmental governance regimes. However, transboundary EIA is a relatively new element within these broader regimes. With the exception of the EIA provisions of the Cuixmala Treaty (which represent more of a conceptual model for a sub-regime than an existing regime per se), these transboundary EIA regimes are subject to ongoing revisions based on the evolution of international environmental policy. These ongoing revisions are in response to some of the limitations of existing transboundary EIA regimes, which are discussed below. (b) description of affected environment; (c) description of practical alternatives; (d) assessment of impacts of proposal and alternatives including direct, indirect, cumulative and short-and long-term impacts; (e) identification and description of mitigation measures; (f) explication of knowledge gaps and uncertainties; (g) indication of transboundary impacts; and (h) brief, non-technical summary of above. 5) Assessment of impacts commensurate with probable significance. 6) Impartial examination of EIA prior to decision. 7) Public comment period before decision. 8) Ample time between completion of above and decision to proceed. 9) Written notice of decision and reasoning, with mitigations if appropriate. 10) Supervision of action taken subsequent to approval. 11) Bilateral, regional and multilateral agreements should be esatablished where appropriate to support reciprocal notification, exchange of information, and consultation where significant transboundary impacts are anticipated. 12) When EIA indicates significant transboundary effects, the responsible state should: (a) notify affected State; (b) transmit EIA and other relevant information to affected State; and (c) as agreed, conduct timely international consultations. 13) Appropriate measures should be established to ensure implementation of EIA procedures. 57 Table 3. Selected transboundary/multilateral EIA regimes Multilateral EIA Agreement Geographic Scope Countries (number ot) Purpose Status Antarctic Protocol (1991) Antarctica Antarctic Treaty Parties (41) Establishes EIA requirements for all activities in Antarctica. Requires ratification by all 26 Consultative Parties, of which 9 have ratified thus far. EC Directive 85/337 (1985) Europe European Union (15) Harmonizes EIA requirements for the European Union. Provisions have been amended. Individual countries implement terms on a discretionary basis. UNEP's EIA Goals and Principles (1987) Global Members of U N General Assembly Provides non-binding EIA goals and principles, particularly for developing countries. Widely endorsed in principle, but effective mechanisms for implementation have not been established. Espoo Convention (1991) Europe Central Asia Canada/U.S. U N / E C E Members (55) Establishes non-binding TEIA requirements amongst countries. 21 of the 55 U N / E C E countries have ratified the Convention. Cuixmala Treaty (1993) North America U.S/Canada Mexico (3) Non-binding proposal by independent analysts. Process for implementation not defined. NAAEC Art. 10(7) (1993) North America N A F T A Parties (3) Requires negotiation of a transboundary E I A agreement between Parties. After several years of negotiation, the Parties have opted for a binding agreement which is still being negotiated. 2.3.6 Limitations of Transboundary EIA The previous section illustrates that procedural mechanisms are in place to require transboundary EIA pursuant to a variety of existing international environmental regimes. However, there are significant limitations associated with how extensively these requirements are applied and the extent to which such requirements will actually constrain the actions of states with respect to proposed activities they perceive to be in their own interest. In the context of European transboundary water resources, for instance, Nollkaemper (1993, p. 180) notes that: Even if all parties were to accept that an obligation to conduct environmental impact assessments is implied by other rules, such a requirement is very imprecise. An undefined impact assessment, the interpretation of which would be left utterly to the unilateral discretion of the state concerned, would provide little help for its purpose of assisting in the application of the no-appreciable harm principle. There would be considerable room for interpretation concerning when assessments have to be conducted, what their content has to be, to what extent potentially affected states have to be 58 involved and, as a result of all this, whether or not activities pass the threshold beyond which prevention is obligated. In order to provide clarity on these points, and thus to enhance the possibility that environmental impact assessments actually limit the discretion of states, more specific obligations to conduct environmental impact assessments should be developed. Therefore, the principal limitations of transboundary EIA concern the degree to which they influence the exercise of unilateral discretion (i.e., state behavior). The limitations of existing transboundary EIA regimes reflect the limitations of EIA generally with the added limitations which are more directly the result of transboundary decision contexts. Analysts with less favorable impressions of EIA effectiveness may question the value of seeking to advance international EIA regimes "...when the preliminary hurdle of developing any real environmental assessment regime has yet to be overcome" (Mickelson, 1996: personal communication).57 Given the scope of this thesis, it suffices to acknowledge the validity of such criticisms while proceeding with the analysis of issues resulting more directly from the transboundary environmental decision-making context. However, the question of EIA's intrinsic potential value as a decision-making approach will be left open for further consideration. This section summarizes the principal limitations of transboundary EIA based on the literature review. EIA Process Not Legally Binding on Decision Makers As with many domestic EIA systems such as NEPA, the principal transboundary EIA regimes are generally procedural rather than substantive. States may be obligated under the terms of international environmental agreements to notify affected parties outside the boundaries of the origin country regarding potential transboundary impacts. But there is typically no absolute legal requirement for decision-makers to base their decision on the conclusions of a transboundary EIA process. 5 7 The question here might also be stated: Why would there be any need for transboundary EIA regimes if every domestic EIA regime were effective? If that were the case, there probably wouldn't be a need for transboundary EIA. In fact, there are distinct differences between domestic environmental assessment and management regimes that will likely be an issue for some time, and the friction resulting from these differences will more often be manifested in transboundary decision contexts. 59 2 . 3 . 6 . 2 Lack of Supranational Enforcement Authority Existing transboundary EIA regimes still defer to the sovereignty of national self-interest as the ultimate basis for environmental decision-making. Recourse to an effective administrative appeal process or judicial body does not supersede sovereignty. In the case of the Espoo Convention, for instance, "compliance and submission to dispute resolution are strictly voluntary" (Beggs, 1995: p. 288). Although parties may endeavor to resolve disputes through negotiation, or pursue adjudication through the International Court of Justice (IJC), these measures are not compulsory. The absence of a compulsory process for addressing disputes is typical of most international environmental agreements. Beggs argues that in order cope with transboundary environmental problems, "supranational authorities are needed to exercise some of the sovereign authority traditionally guarded by national governments." Opinion is divided over the necessity of establishing supranational authority (particularly a globally centralized agency) with jurisdiction over transboundary environmental decision-making (Kelly, 1997). Positions on this issue may be contingent on interpretations of the state of global environmental health relative to issues of national self-interest. The reluctance to forfeit any aspect of sovereignty to a supranational authority is 58 also based on concerns regarding their democratic legitimacy and accountability. Other analysts have simply concluded that "resources could be better spent pursuing problems individually rather than creating more bureaucracies" (opinion cited in Kelly, 1997: p. 462). Nevertheless, emerging examples from other the development of supranational authorities in non-environmental areas, and growing consensus regarding increasing levels of global environmental degradation, suggest that "the creation of a supranational IGO is no longer unthinkable" (Harvard Law Review, 1992: p. 124). Such a possibility faces significant political obstacles, in spite of the potential benefits a supranational authority would potentially offer for the resolution of international environmental disputes. The challenge for 5 8 For instance, Raustailia (1996, p. 11) cautions that "there are important democratic considerations in designing international institutions that have been almost entirely ignored in the debates on the subject due to an overriding focus on increasing 'effectiveness' by some environmental criterion." These concerns are also exemplified by an editorial characterization of recommendations by the Canadian House of Commons standing committee on environment and sustainable development. "The committee would change Canada's independent regulatory mechanism into a rubber stamp that forces Canada to adopt decisions made by other countries and slavishly follow the suggestions, however unwise, made by international conventions" (The Globe and Mail, 18 October, 1995). 60 offer for the resolution of international environmental disputes. The challenge for international environmental policy analysts and decision-makers is to develop workable models regarding the form these supranational entities would take. Lack of Substantive Specificity Existing EIA regimes are prone to hortatory statements regarding their substantive intent, particularly in their preambular statements and inclusion of general principles. There is typically a lack of specificity regarding exactly what mechanisms and methods are to be used to operationalize principles such as sustainability and the precautionary principle. As Lyons (1993, p. I l l ) notes regarding the Antarctic EIA Protocol, in order facilitate the necessary consensus for reaching agreement the text of the agreement is "sometimes deliberately vague." This lack of substantive specificity leaves the interpretation of these principles to the implementing bodies of individual states who face ubiquitous pressures to favor less rigor in their implementation of transboundary EIA provisions. Political Vulnerability As discussed previously, EIA processes, and environmental decision-making generally, are intrinsically political processes. However, the susceptibility of environmental decision-making to political influences that run counter to good environmental decisions is that much greater in the context of transboundary EIA. The inevitable politicization of the transboundary decision-making process raises issues to an international level, and disagreement between transboundary stakeholders may also reflect deeper international tensions. As well, "losing" in a given transboundary decision context has more significant political consequences regardless of the overall environmental benefits. The administration of multilateral EIA necessarily entails decisions in terms of staffing (e.g., Secretariat) which are typically political appointees, and tacitly beholden to domestic political considerations. Inadequate Institutional Capacity for Implementation A common feature of existing transboundary EIA regimes is the discretion member States retain for implementation based on their own institutional frameworks for domestic EIA. There are substantial disparities between countries regarding their relative effectiveness 61 applying EIA policies. This situation may create a tendency toward lowest common denominator implementation. Therefore, international and subnational disparities between existing EIA regimes present an additional challenge for improving the effectiveness of transboundary EIA. Furthermore, the level of support for EIA capacity building is contingent upon the level of broader political support for international environmental policy development and funding. This is always susceptible to shifting political forces within each country. Limited Scope of Application The application of transboundary EIA is generally limited to evaluating major projects and their most conspicuous impacts on a project-by-project basis. As discussed already, this is often a shortcoming of existing EIA regimes as well. Broadening the scope of application for transboundary EIA is more difficult, because achieving the consensus required to establish the terms of the international agreements on which transboundary EIA regimes are based involves compromises that tend to weaken their substantive provisions. 2.4 A L T E R N A T I V E A P P R O A C H E S T O T R A N S B O U N D A R Y E N V I R O N M E N T A L D E C I S I O N - M A K I N G The purpose of this section is to examine some approaches to environmental decision-making processes other than environmental impact assessment. These approaches are discussed in terms of their relationship to EIA, and transboundary EIA in particular. This provides a basis for clarifying how alternative approaches to environmental decision-making can be integrated with EIA processes in order to improve environmental decision-making, particularly within the institutional frameworks provided by existing EIA regimes and other venues for transboundary environmental decision-making. This consideration of alternative environmental decision-making approaches focuses on addressing the limitations of conventional EIA processes and existing transboundary EIA regimes which have been identified above. Thus, the approaches discussed below emphasize the need to more effectively elicit and structure stakeholder values in a manner that clarifies the value tradeoffs for stakeholders and decision-makers. These approaches consistently promote substantive stakeholder participation and negotiation to a degree that exceeds the level to which they have 62 generally been applied in EIA processes to date. In this way, these approaches seek to promote better environmental decision-making in a manner that is consistent with the substantive goals and objectives of EIA. In addition, consideration is given to the institutional, legal and political context within which alternative approaches to transboundary environmental decision-making would be implemented. These contextual variables present a range of issues that must be addressed in order to effectively integrate alternative approaches with transboundary EIA processes. 2.4.1 Decision Analysis This section examines the decision analysis approach as an alternative or complementary means of improving environmental decision-making based on the EIA model. According to its proponents, decision analysis techniques offer a more effectively structured approach that supports better decisions than the conventional EIA approach. The fundamental goal of decision analysis is to provide decision makers with greater insight into a decision problem and facilitate better decisions based on more comprehensive explication, structuring, and evaluation of affected stakeholders' values and objectives.59 Stakeholders and decision makers are asked to focus on what the underlying value tradeoffs are in a given decision context in order to craft better problem definitions and alternative solutions. This process should lead to more widely satisfactory and defensible environmental decisions. Different emphases and techniques (e.g., quantitative vs. qualitative) can be applied under a decision analysis framework. For the purpose of this analysis, emphasis will be given to an article by Gregory et al (1992) which explored the potential benefits of integrating decision analysis techniques with the NEPA environmental impact statement process.60 In addition, attention will be given to the principles of "value-focused thinking" which complement the approach put forward by Gregory et al. (1992). McDaniels and Trousdale (forthcoming) describe value-focused thinking as "describing what is important, and then how to achieve it." This approach involves three basic steps (Keeney, 1992): 1) structuring the fundamental objectives involved in a given decision problem; Although Gregory el al (1992) are referring specifically to the environmental impact statement process pursuant to NEPA, the emphasis on an administratively technocratic, project-oriented procedure for assessing environmental impacts applies to EIA processes more generally as well. 63 2) using these objectives to create new alternatives that satisfy a wider range of stakeholder values; and 3) using objectives to define information requirements and evaluate alternatives. Noting that "...the EIS process is intended to address what is inherently a decision problem," Gregory et al (1992, p. 59) argue that the conventional NEPA EIS process is deficient because it fails to provide decision-makers with an understanding of the implications of their potential actions. This results because EIS processes focus on compiling factual information rather than aiding policy decisions. From a decision analysis perspective, there are five shortcomings that limit the effectiveness of EIA as a means of supporting good environmental decision-making (Gregory et al, 1992: p. 60): 1) inadequate consideration of alternatives; 2) narrow scope of impacts; 3) inadequate treatment of uncertainty; 4) poor distinction between facts and values; and 5) limited public involvement. This focus on the clarification of relative impacts and the importance of stakeholder values also embodies value-focused thinking. Integrating Decision Analysis and EIA According to Gregory et al (1992: p. 63), merging "the impact identification and evaluation objectives of EIS with the decision [and values] focus of the decision analysis approach" can be done using five iterative tasks to recast a given EIA application as a decision problem: 1) Structuring the Environmental Impact as a Decision Problem This task involves five smaller steps: a) Clearly defining the problem; • Explicit purpose of EIS must be to select and implement the best solution from the standpoint of social welfare rather than simply legitimizing a proposed action. b) Identify representative stakeholder groups; • These stakeholder representatives must be broadly representative and openly selected. c) Eliciting stakeholders' objectives or attributes of value; • Interview stakeholder group representatives to articulate values and concerns for 64 environmental decision-making. d) Eliciting a set of alternatives (to the proposed action); • Create new alternatives that are based on the how the decision problem has been defined based on stakeholder participation. e) Construct explicit values hierarchies that articulate whether environmental concerns are general, intermediate, or specific. • The emphasis here is on structuring a full range of stakeholder values in a way that allows relevant tradeoffs to be more clearly structured and evaluated. 2) Estimating Uncertain Impacts Expert judgments are required to estimate impact magnitude and likelihood. 3) Assessing Value Trade-offs and Constructing an Acceptable Value Model Different methods are available for evaluating trade-offs across impacts and relative to proposed alternatives, however, the decision analysis approach is preferred, "because values hierarchies would be more explicit and measures of critical objectives would be more clearly structured." 4) Evaluating Alternatives in Light of Values This phase of the decision analysis approach is perhaps the most difficult to implement, particularly in the context of transboundary environmental decision-making. As Gregory et al. 1992) discuss, the successful evaluation of alternatives on the basis of stakeholder values requires specialized analytical skills. Analysts with such skills may not be readily available, particularly in situations that involve multilingual and cross-cultural issues. Furthermore, the implicit expert judgment that often obscures analysis in conventional EIAs could merely be passed onto the decision analyst. While this need not necessarily compromise the value of the process, it does pose additional challenges for effectively incorporating this approach. 5) Presenting Information to Decision-makers The presentation of information to the decision-makers should be done in a manner that clarifies the implications of different decision alternatives. The results of the analysis should also represent the basis and justification for the decision that is reached. Gregory et al (1992, p. 69) posit that the conventional EIS process fails to provide decision-makers with an understanding of the implications of their potential actions, because EIS processes focus 65 on compiling factual information rather than aiding policy decisions. In this regard, the DA approach is intended to: • clarify technical dimensions and their relative impacts (i.e., significance); • help decision-makers anticipate public conerns regarding the decision-making process and the outcomes (regarding how value trade-offs were made; and • decisions must be defensible, which necessarily requires power sharing (with the public). Value focused approaches to decision analysis offer important complementary benefits for EIA that could potentially improve EIA effectiveness. Aside from the article by Gregory et al. (1992), however, there has been very little published analysis regarding the integration of conventional EIA and decision analysis approaches to environmental decision-making - not to mention the additional challenges associated with incorporating the iterative steps of the decision analysis approach to EIA into an international/transboundary context. Arriving at a defensible decision, and providing useful insights for environmental decision-makers in the context of a transboundary EIA, requires that the various procedural elements of the approach be analyzed for their compatibility with the specific issues that complicate the international character of a particular environmental decision context. An essential aspect of the value-focused decision analysis approach is the recognition that value tradeoffs are unavoidable. Therefore, the decision-making process will be improved by explicating the role of all relevant values. Key among these will be the values of the impact analysts themselves, whose values are implicit in the judgments they make during the course of the EIA process. As Rapaport (1996, p. 73) concludes: [risk and impact analysts]... are never radically separated from the systems they observe, and furthermore, those systems are composed of human subjects with cognitive capacities equal to, and local knowledge usually greater than, those of the analysts [therefore] impact analyses are themselves interventions in the systems they seek to understand." This suggests that value-focused impact analysis is "legitimately interventionist," because it is open to "the inside knowledge and understanding of the subjects." Integrating decision analysis with EIA is clearly worth applying to transboundary decision contexts as well. However, this will likely involve correspondingly greater challenges due to the differences between cross-cultural values and administrative personalities. 66 2.4.2 Informed Negotiated Consent Decision problems in international contexts necessarily involve some amount of ad hoc negotiation between states around a specific set of issues.61 As Paisley and McDaniels (1995, p. 130) suggest in the case of transboundary water pollution issues, adopting the principle of "informed negotiated consent" might provide a more workable framework for facilitating a more durable consensus in specific international decision contexts. "States involved in international water disputes are likely to have conflicting value judgments regarding the appropriate balance of harm to one state and benefit to another state." The informed negotiated consent approach seeks to integrate the value-focused elements of decision analysis into transboundary environmental decision-making in order to clarify a mutually acceptable balance between such conflicting state value judgments. The value tradeoffs in international environmental decision contexts center on conflicting state determinations of acceptable risk and the transboundary distribution of benefits from a proposed action. Efforts to reconcile such conflicts would benefit from more effectively clarifying transboundary stakeholder values, and basing negotiations on specific principles of transboundary equity and reasonableness. Informed negotiated consent would thus "require that water utilization in an upstream state that holds appreciable environmental risk to a downstream state be disfavored unless both states agreed that the proposed utilization comported with the principle of equitable utilization and reasonable." The informed negotiated consent approach highlights the underlying emphasis that needs to be placed on establishing international principles for acceptable environmental risk and a mutually agreeable basis for weighing value tradeoffs. Furthermore, the successful application of these principles may depend on the degree to which the process by which they are applied in specific decision contexts is perceived to be legitimate (i.e., impartial and thorough) for all parties concerned. The ad hoc nature of many transboundary negotiations is however done within some institutional framework or guiding such processes. This may follow specific international agreements where applicable, or be carried out under the guidance of a relevant transboundary organization such as the IJC. Also. "The [international] law provides only a general framework for reaching a contextual political decision, encouraging states to strike equitable compromise between the interests they advance" O^oivurova, 1997: p. 507). 67 The implementation of the informed negotiated consent principle would also require acceptable procedural mechanisms.62 As Paisley and McDaniels (1994, p. 131) suggest, the requirements for improving transboundary environmental decision-making using this approach include: 1) explicitly sharing technical information about the potential for environmental harm and the alternatives available mitigate adverse impacts; 2) focusing greater attention on the values and interests of the states involved. 3) providing a process based more on building mutual trust and the equitable sharing of benefits that also facilitates more effective negotiations; 4) encouraging participant states to explicitly represent uncertainties and value tradeoffs; 5) enhancing communication and trust between the transboundary parties for negotiation; (6) improving decisions, benefit distribution based on negotiation, and effective impact mitigation; and 7) facilitating long term and lasting resolution of [transboundary] disputes. The informed negotiated consent approach emphasizes the need to incorporate a process that facilitates effective transboundary dialogue based on a clearly communicated and mutually supported characterization of environmental risk. As Fiorino (1995, p. 17) observes: "Risk defines the nature and contours of environmental problems." Clarifying how transboundary stakeholders perceive risks in a decision context, and then providing a constructive forum for negotiating mutually acceptable value tradeoffs and alternatives, should lead to more effective transboundary environmental decision-making. The fundamental aspects of the informed negotiated consent approach also appear to be compatible with the basic procedural elements and objectives of transboundary EIA. 2.4.3 Localized Collaborative Institutions Cardinall and Day (1998) argue that intractability of value conflict and subjective doubt are defining characteristics of environmental decision-making. Consequently, decision-making based on traditional institutional procedure such as EIA are likely to exacerbate value conflict, because they fail to "provide a forum in which stakeholders are able clarify and mutually agree upon expectations, to understand the general characteristics of affected social 6 2 Transboundary EIA offers a potentially useful vehicle for integrating elements of this approach. 68 and ecological systems, and to implement needed changes" (p. 117). Their proposed solution to this fundamentally flawed approach is to focus on developing collaborative institutions at the local level that provide a more effective basis for community based research and decision-making. Cardinall and Day (1998: pp. 118-119) suggest the following steps to "more effective environmental management and planning in complex circumstances:" 1) explicitly acknowledging the limitation of technical analysis; 2) expanding current notions about what kinds of knowledge are relevant; 3) integrating a wider range of knowledge in the assessment, decision-making and monitoring process, 4) reconceptualizing assessment, decision-making, and monitoring as civic activities. Most of these steps are similar to aspects of the value-focused decision analysis approach. The principal difference is the emphasis on a more ongoing and structured role for community-based involvement in all aspects of environmental management and policy-making. This suggests a more formalized and proactive process for establishing an overarching context for public participation and dialogue regarding stakeholder interests in environmental decision-making. Most of the experience with this approach have been in domestic contexts, although this has often involved subnational transboundary issues. Programs for developing localized collaborative institutions have been emerging in transboundary contexts, but not to the degree of stakeholder empowerment envisioned by Cardinall and Day.63 6 3 The most notable example may be the Border Environment Cooperation Commission (BECC) for the U.S.-Mexico border region (see Graves, 1996), which was established in 1993 to address environmental concerns related to NAFTA. However, the scope of its decision-making authority and public participation mechanisms are limited. A variety of smaller scale, grassroots efforts pertaining to transboundary environmental management and planning have also been emerging, albeit generally not with formal integration with governmental decision-making processes. With respect to the U.S.-Canadian border, Allee and Dworsky (1998, p. 85) discuss how "the rebirth of interest of interest in the small watershed as a management unit can further cross-boundary cooperation." Their analysis highlilghts the importance of transboundary cooperation between subnational jurisdictions, and the usual requirement "that two local governments divided by a national border must gain the consent of the two national governments involved." The resulting inefficiency and diminished effectiveness are even worse along the U.S.-Mexico border. 69 2.4.4 Analytic Deliberation Dietz and Stern (1998) assert that conventional approaches to science-based assessment and decision-making, although informative, "will ultimately not resolve conflicts because the analyses are grounded in judgments on which reasonable people may differ" (p. 441). The tension between scientific and value-focused approaches are often manifestations of five key characteristics of environmental policy problems: (1) multidimensionality, which necessitates assumptions about valuation of affected values; (2) scientific uncertainty, because environmental science can rarely provide definitive answers; (3) value conflict and uncertainty, for which there is no objective criteria; (4) mistrust, based on historical issues; and (5) urgency, i.e., "Not taking action is a highly consequential action (p. 442). Based on these characteristics, Dietz and Stern propose an analytic deliberation approach based on an "open examination and debate about value conflicts and uncertainties" in order to "help guide scientific analysis." More specifically: Analytic deliberation is structured discussion among scientists, decision-makers, and parties with an interest in a policy. The goals of the discussion are to define the problem to understood, to identify the values and outcomes of concern, to distinguish disagreements that must be addressed through compromise and tradeoff from those that might be resolved with better information (p. 442) Analytic deliberative processes would need to be tailored to fit particular decision contexts, but they should incorporate several key principles: 1) The deliberation should incorporate all relevant stakeholder perspectives, including "community expertise" 2) The deliberation should be initiated as early as possible in order to shape the formulation of scientific and policy questions in way that is inclusive, iterative, and therefore credible 3) The deliberative process must be structured in a manner that facilitates constructive dialogue (rather than posturing) between technical and non-technical stakeholder representatives. 4) Consensus or full conflict resolution may not be possible, but the process should represent all relevant perspectives, focus further analytical needs, and "clarify what the conflicts are about." The analytic deliberation approach articulated by Dietz and Stern provides another conceptual model for balancing the application of science and the representation of values in the environmental decision-making process. Scientific analysis is intended to clarify potential 70 impacts, uncertainties, and the issues of greatest relevance to the subject decision. Thus, this approach "embodies a new relationship between policy science and its users....that calls on non-scientists to share the responsibility for making these judgments" (p. 443). The result is hopefully a democratic process of scientific debate that accommodates "disparate points of view through civil, open discussion and the legitimacy that flows from such discussions." In order to become a more viable basis for environmental decision-making, however, the analytic-deliberative approach will need to be developed through more systematic application and refinement. 2.4.5 Characteristics of Alternative Approaches There are substantial areas of overlap between the various approaches discussed above. They each offer features that would complement an underlying framework based on the EIA model.64 The successful application of all of these approaches hinges on establishing an inclusive forum for facilitating a constructive dialogue between stakeholders with disparate values and objectives. Furthermore, this dialogue must mesh with the vital supporting role that science and technical analysis plays in clarifying the nature and consequences of specific actions on the environmental values that are potentially at risk (or at least perceived to be) in a given decision context. Rather than being a "one size fits all" model, the effectiveness of each approach is also contingent upon being adapted to the specific characteristics of a particular decision context. This suggests that a conceptual model of transboundary EIA that integrates these other approaches will best be structured flexibly enough to allow different approaches to be given varying degrees of emphasis according to the circumstances of a given decision context. 6 4 It is worth emphasizing that the alternative approaches discussed here are not intended to be detailed or exhaustive. Other means of supporting environmental decision-making such as mediation and other environmental dispute resolution mechanisms have not been discussed. A much wider range of institutional arrangements for transboundary environmental management and decision-making could also be explored. The scope of this thesis does not permit a more thorough examination of every possibility, however. 71 2.5 SUMMARY After presenting a contextual overview of transboundary environmental decision-making, this chapter has provided a conceptual overview of EIA, and transboundary EIA in particular. That analysis suggests that in spite of widely recognized limitations in practice, EIA is clearly established internationally as a procedural model for environmental decision-making. Critics and supporters of EIA can provide credible evidence to support their respective positions. This is perhaps a prime example of: "Is the glass half full, or half empty?"65 These conflicting perceptions have often hardened into an unconstructive polemic that often confuses the underlying assumptions of EIA participants and analysts in terms of practice versus potential, and the contextual issues that constrain the substantive value of EIA. Without presuming to reconcile this debate, it is still reasonable to suggest that the internationalization of EIA will continue given the present momentum of globalization. It follows that it is worth maximizing the potential of transboundary EIA as a co-evolving element within the overall context of international environmental policy and management. Maximizing the potential of transboundary EIA is a matter of addressing the limitations that have been presented above, in part, by integrating appropriate aspects of other decision-making approaches (e.g., value-focused decision analysis, informed negotiated consent, and localized collaborative institutions). Transboundary EIA may therefore be considered a conceptual template of sorts that provides the principal structure for supporting a more discursive approach to environmental decision-making.66 From this perspective, transboundary EIA would provide an institutional forum within which the affected parties involved in a decision context would be offered a more constructive and empowering basis for engagement. This would be facilitated by more effectively guiding the interpretation and weighting of conflicting values and knowledge claims in the decision-making process. 6 5 For example, "the procedural emphasis [of EISs], which is a weakness in some political and legal settings, is a decided strength in others, because it can work in non-threatening, incremental, compromising fashion" (Rodgers, 1994: pp. 57-8). 6 6 As Litfin (1995) posits: "In general, environmental problems are not simply physical events; they are discursive phenomena that can be studied as struggles among contested knowledge claims, which become incorporated into divergent narratives about risk and responsibility. The struggle that ensues is a struggle for meaning in which no meanings are ontologically fixed." Rather than treating science as an objective source of knowledge, a discursive approach treats scientific knowledge (or any other knowledge claim) as one of many contested interpretations of reality, each of which is socially constructed. This complements Rappaport (1995, p. 73) assertion that impact analysis qualifies as an application of "post-modern science" in which is 72 The structural and contextual constraints imposed through inequitable political influence, scientific bias, and insufficient institutional capacity must be addressed as well. As Caldwell (1989, p. 14) stresses: "The larger challenge to EIA is not technical [or procedural], it is political." In addition, these factors are generally more problematic in transboundary contexts due to the issues of sovereignty and the disproportionate power held by different interests between and within the countries involved. On the other hand, the international political significance of contested transboundary environmental decisions may provide the additional impetus necessary to overcome some of the limitations that inhibit EIA effectiveness in domestic contexts. In any case, a clear distinction needs to be maintained between the intended procedural and substantive objectives of a transboundary regime, and the effectiveness of regime implementation as constrained by the contextual factors above. The point to emphasize here is that EIA is still a useful basis for constructing a conceptual model for effective transboundary environmental decision-making in North America. The institutional framework for transboundary EIA is in place, at least to the extent that domestic EIA regimes have been developed at national and subnational levels in Canada, Mexico, and the United States. However, the limitations of EIA in these jurisdictional contexts needs to be addressed in order to increase effectiveness. Alternative approaches such as decision analysis offer additional strengths for transboundary EIA processes that would promote better decision-making. Depending on the specific decision problem, one or more of these supplemental approaches might be more effective. In other words, selectively combining elements from all of these approaches with the basic EIA framework will provide the basis for a more robust approach to transboundary environmental decision-making. The following chapter seeks to develop a conceptual model for such an approach. "legitimately interventionist" rather than purportedly value neutral, and equally concerned with "praxis as theory." 73 Chapter 3 CONCEPTUAL MODEL FOR EFFECTIVE TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT The preceding chapter presented an overview of practical and theoretical issues associated with the emergence of transboundary EIA as a basis for international environmental decision-making, as well as an overview of existing EIA and transboundary EIA regimes. Alternative approaches to international environmental decision-making were then examined. This overview was intended to support the development of a conceptual model for more effective transboundary EIA, particularly in North America. This chapter presents a conceptual model for effective transboundary EIA based on a set of objectives derived from the analysis that was summarized in the preceding chapter. Although the conceptual framework that was discussed in the preceding chapter contextualized the analysis and provided a broader conceptual framework, a robust conceptual model of transboundary EIA must be based on a comprehensive and clearly articulated set of objectives. This chapter seeks to clarify the essential role of objectives in the context of this analysis, and then defines an appropriate set of objectives on which to base an effective transboundary EIA regime. A conceptual model for transboundary EIA is then developed which consists of several interrelated components: (1) a comprehensive set of objectives; (2) an explication of the contextual linkages associated with transboundary EIA; and (3) an integrated procedural structure for transboundary EIA. Each of these components is essential in order to provide a conceptual model of transboundary EIA that addresses the frill range of issues that have been raised through the analysis presented in Chapter 2. This conceptual model is then compared to the Draft Transboundary EIA Agreement that has been prepared under the auspices of the NACEC (in Chapter 4). That comparative analysis highlights the issues that need to be addressed in order to move towards a more effective transboundary EIA regime for North America. 74 3.1 IDENTIFYING OBJECTIVES 3.1.1 The Role of Objectives In order to develop a credible conceptual model for transboundary EIA, an appropriate set of objectives must first be established. Achieving specific objectives is the fundamental purpose of all decision problems (Keeney, 1992). And because transboundary EIA is essentially a means of addressing transboundary decision problems, it is imperative that a transboundary EIA regime is based on a clearly articulated set of objectives.67 In this context, objectives fulfill several important functions (McDaniels, personal communication): 1) Most importantly, objectives define what is trying to be accomplished in a given decision-making context. Or in the case of this study. What is trying to be achieved by the use of a transboundary EIA process? 2) Explicit objectives provide a more defensible basis for evaluating the effectiveness of a transboundary EIA regime. Effectiveness becomes a matter of demonstrating that an existing or proposed transboundary EIA regime does, or can be expected to, meet a specific set of objectives. In this context, objectives also define what information is needed in order to determine the effectiveness of a given transboundary EIA process. 3) Successful alternatives can be created more readily when there is a clearly articulated set of objectives from which specific aspects of possible alternatives can be referenced. In order for an alternative transboundary EIA regime to be successful, it needs to be based on a comprehensive set of objectives that address the many procedural and contextual issues discussed in the preceding chapter. For these reasons, objectives provide the necessary foundation for developing a robust conceptual model for transboundary. The following section describes the process that was used to define the objectives that formed the basis for the conceptual transboundary EIA 6 7 This is somewhat complicated by the fact that the objectives being identified and structured are for a process (i.e., T E A ) that is itself ideally a means of identifying and structuring the values and objectives involved for a given decision problem. Keeney's (1992, p. 56) comment that: "The main purpose of identifying and structuring objectives is to provide insight for better decision" applies to both the use of transboundary EIA (for specific decisions) and the evaluation of its effectiveness. 75 process being proposed here. After that, the set of structured objectives that are used as the basis for the conceptual model for transboundary EIA is discussed. 3.1.2 Process for Defining Objectives The process for defining an appropriate set of objectives for the conceptual transboundary EIA model was based on three principal methods: Literature review A comprehensive review of literature from a variety of disciplines provided the primary source of information regarding relevant objectives for transboundary EIA. There is a substantial body of literature on EIA (of which international and transboundary EIA per se form a small part) which is concentrated in the fields of planning and environmental law. The general focus from this perspective is on the procedural objectives of EIA in different contexts. From a more political perspective, objectives were also derived from the literature in the fields of political science and international relations. In particular, a multi-disciplinary sub-field concerned with international environmental policy analysis has emerged within this area of academia that provides a broader, and more theoretically oriented, source of objectives. As well, there is a substantial body of literature that has been done by relevant professionals and international organizations, including the organizations responsible for administering the terms of international agreements for existing transboundary EIA regimes. Interesting and useful references were also located in more obscure areas such as environmental history. Finally, relevant current events and contextual issues were tracked through various non-academic journals and periodicals. Interviews with knowledgeable informants Objectives were also derived from conversations with a variety of individuals who are directly or indirectly involved in relevant research or organizations responsible for administering transboundary environmental decision-making processes such as TEIA. 6 8 These 6 8 As Keeney (1992, p.56) asserts: "The objectives for a decision situation should come from individuals interested in and knowledgeable about that situation." In this case, that covers a wide range of administrators and academic analysts from the different fields referenced in literature review discussion. 76 people were either contacted individually via telephone, or interviewed in-person at various conferences and proceedings related to EIA or international environmental policy analysis.69 Objectives elicitation and structuring Once an initial set of objectives had been identified based on the literature reviews and interviews, an exercise in eliciting and structuring objectives was also conducted.70 The purpose of this exercise was to "promote systematic and deep thinking about the objectives" (Keeney, 1992: p. 55). This process involved a phone interview using an iterative series of questions and answers in order to clarify the underlying objectives of transboundary EIA. These objectives were then structured into an overall objective with sub-objectives.71 The result of this process was an objectives hierarchy for transbounday EIA that is discussed in more detail in the next section. The elicitation and structuring of objectives is not an exact science for which standard formulas can be applied. Instead, analysts must apply "significant creativity and hard thinking about a decision situation" (Keeney, 1992, p. 56). The process used to identify the objectives for this study has drawn heavily on information in relevant literature. A stronger approach would have included a series of focused interviews with individuals who are directly involved in the negotiations associated with the development of the transboundary EIA Agreement for North America. Unfortunately, this was not a practical option due to financial and time constraints. Nonetheless, a very credible set of objectives has been developed using the techniques discussed above. The workshops, conferences, and public meetings attended included: (a) Shared Waters/Shared Stewardship: Environmental Management in the Georgia Basin-Puget Sound, May 27-28, 1998, Bellingham, WA; (2) Native Americans, Time, and the Law: A Forum on the Status of Tribal Sovereignty, October 17-18, 1997, Portland, OR; (c) International Association for Impact Assessment 16th Annual Meeting. June 17-23. Estoril, Portugal; (d) Association of Borderlands Scholars/Western Social Science Association Annual Meeting, April 17-20, 1996. Reno, Nevada, (e) B.C./Washington Environmental Cooperation Council Annual Meeting, December 13, 1995. Bellingham, Washington; and (f) International Studies Association Western Regional 1995 Meetings, October 20-21, 1995. Boulder, Colorado; and (g) "NAFTA and the Trade-Environment Debate Workshop," University of California/San Diego, April 8, 1995. San Diego, California. 7 0 This exercise was conducted with Professor Tim McDaniels of the University of British Columbia. Professor McDaniels is a specialist in decision analysis techniques, and his work in environmental policy analysis has included transboundary issues (McDaniels, 1992; McDaniels and Paisley, 1995). 7 1 This iterative process basically followed the approach advocated by Keeney (1992). As Keeney instructs, a variety of dialogic approaches can be used to elicit objectives in a given decision context. In any case, it is important to clarify whether proposed objectives are means objectives or fundamental objectives. The essential 77 3.2 D E F I N I N G A C O M P R E H E N S I V E S E T O F O B J E C T I V E S F O R E F F E C T I V E T R A N S B O U N D A R Y E N V I R O N M E N T A L I M P A C T A S S E S S M E N T The development of an objectives hierarchy for transboundary EIA requires the consideration of a wide range of interests and perspectives. This analysis of the transboundary EIA context is particularly challenging, because the necessary objectives are for an approach to making environmental decisions in a context that is broader than a specific decision problem (i.e., the decision problem is how to address a certain type of decision problems: transboundary EIA situations). As a result, the values and objectives that are the essential considerations in specific decision problems are necessarily generalized to address the broad applicability of the conceptual model for transboundary EIA being developed here. This section summarizes the objectives for effective transboundary environmental decision-making which were developed using the methods described in the preceding section. First, the overall objective is articulated. Then a set of sub-objectives are defined that establish what the overall objective entails. The principal sub-objectives are also subdivided into more specific (sub-)sub-objectives that elaborate what the main sub-objectives entails 3.2.1 O v e r a l l O b j e c t i v e Defining the overall objective for transboundary EIA focused on the fundamental purpose of the transboundary EIA process - improving decision outcomes in transboundary environmental decision contexts. There were numerous ways to state the overall objective that, albeit similar, provided slightly different emphases. Stated most broadly, the overall objective was simply to improve transboundary environmental decision-making. However, the focus of this analysis is on the potential role of transboundary EIA as specific administrative mechanism for furthering this objective (i.e., improving its effectiveness in this regard). Furthermore, the objective elicitation and structuring exercise suggested other issues regarding the focus of the overall objective.72 After considering these issues, a more carefully articulated overall objective question in this regard is: "Why is this objective important?" That question is considered throughout the combined process of eliciting and structuring objectives for a particular decision problem. 7 2 Another way of stating the overall objective would be: to provide the basis for making quality decisions about acceptable risk in transboundary environmental issues (per McDaniels, personal communication). Stated in this way, the overall objective focuses sub-objective identification on what provides an effective decision-making process, and what contributes to clarifying mutual acceptability amongst stakeholders in a 78 was adopted: Maximize the effectiveness of transboundary EIA as a basis for improving the quality of international environmental decisions. Stated this way, the overall objective reflects the essential procedural function of transboundary EIA and its broader substantive purpose in a manner that allows for the development of an inclusive set of sub-objectives. This allows the comprehensive set of objectives to more completely reflect the full range of objectives and issues raised during the course of the literature review and various interviews. 3.2.2 Objectives for Effective Transboundary EIA Having defined an overall objective, a comprehensive set of objectives was developed to on which to base the conceptual model for an effective transboundary EIA regime. The results of this process are presented in Table 4. These objectives have been derived from the analysis summarized in the preceding chapter, focusing on key issues that were raised, including: • the limitations of EIA generally and existing transboundary EIA regimes in particular; • principles associated with alternative environmental decision-making approaches; and • context-specific aspects of transboundary environmental decision-making. This section provides a brief discussion regarding the rationale for designating and structuring the objectives outlined in Table 4. Provide an Effective Basis for a Quality Decision Process A critical objective for improving environmental decision-making concerns the need to have a procedural framework that is effective. As emphasized in the discussion regarding the general aspects of EIA in section 2.7, there are a variety of procedural elements that are essential in order for EIA procedures to provide an effective basis for meaningful decisions. This carries over to the international/transboundary context as well. Therefore, a sub-objective of this broader objective is to incorporate the procedural elements that have been identified as the basis for effective EIA (which represent the de facto international standards transboundary decision context. Although this overall objective has not been used verbatim, the perspective is reflects has been incorporated into the overall objective and sub-objectives. 7 9 Table 4. Comprehensive objectives for effective transboundary EIA .Overall ObjecByejsij; ~ 7 ^jS , 'JT- ^ 7 ~ Maximizetheeffectiveness of transboundarj EIA as a basis lor improving the qualitv of international environmental decision-making Main Sub-object ives Provide an Effective Basis for a Quality Decision Process Incorporate procedural elements that contribute to effective EIA (based on international standards). Incorporate procedural elements of the decision analysis approach to impact assessment: • characterize tradeoffs for alternatives and their relative attractiveness to states/stakeholders; • characterize a complete set of objectives, involving a wide range of stakeholders; • characterize a range of attractive alternatives; • characterize the impacts of alternatives on these objectives; • characterize uncertainties in impacts in ways that are informative; and • refine alternatives by including mitigation measures that will make them more attractive. Maintain integrity and impartiality of EIA process and documentation: Facilitate Transboundary Cooperation/Minimize International Conflict Provide the basis for informed negotiation among states/stakeholders: • provide relevant information for creating new, more attractive alternatives; • characterize compliance with international norms and standards; • provide legitimate procedures; and • serve as a legitimate forum. Provide mutually acceptable means of adjudicating disagreements and binding dispute resolution systems. Emphasize proactive and facilitative multilateral guidance rather than reactive intervention. Support Substantive Decision Outcomes Maximize scope of application and range of impact consideration. Address the underlying decision problem rather than simply react to a proposed action. Explicate the values and judgments applied throughout a decision-making process. Clarify the best decision options based on full consideration of substantive issues. Clarify and support ongoing frameworks for post-decision monitoring and impact management. Incorporate Applicable Goals and Principles of International Environmental Law and Policy Integrate international environmental norms and standards when stronger than domestic equivalents. Advance objectives of relevant international environmental regimes. Promote the principle of Sustainable Development Promote the Precautionary Principle Apply Ecological Principles Minimize loss of natural capital. Define and respect the functional limits of biophysical systems (e.g., carrying capacity). Assess direct, indirect, and cumulative impacts on all affected ecosystem functions and scales. Promote international standards/norms for ecological impact assessment methods (e.g significance evaluation). Promote environmental enhancement and restoration in addition to preservation. Promote Effective Stakeholder Participation Facilitate fully empowering participation of affected stakeholders. Foster participation/development of localized collaborative transboundary institutions. Weight stakeholder values and objectives equitably when making any necessary value tradeoffs. Advance Institutional Effectiveness Provide competent and adaptable institutional arrangements for administering transboundary EIA process. Contribute to institutional capacity building for developing and administering relevant environmental policies. Maintain Efficiency and Cost-Effectiveness Use available information and expertise effectively. Establish reasonable time limits for transboundary EIA process. Constrain Exercise of Sovereignty (i.e., Change state behavior regarding the basis for environmental decisions) Provide legally binding and enforceable basis for implementation of the transboundary EIA process. Establish supranational authority for oversight of effective transboundary EIA and political accountability for EIA). These elements are shown in the procedural framework that is diagrammed in Figure 2. Procedural effectiveness is also supported by a sub-objective concerning the need for procedural elements that integrate a decision analysis approach. The sub-elements of this approach emphasize the need to adequately characterize stakeholder values and objectives, and the alternatives, impacts and tradeoffs associated with those values and objectives. This is a key aspect of the conceptual model being developed here, because it addresses some of the most significant limitations of conventional EIA processes (as discussed in sections 2.7.2 and 2.9). Another sub-objective highlights the importance of maintaining the credibility and integrity of the decision-making process. This requires impartiality and insulating the process from political influences that seek to bias decision outcomes (per section 2.7.5). Finally, the procedural requirements for post-decision measures needed in order to more effectively monitor and manage impacts are addressed. This requires clarification and support for ongoing frameworks to ensure that such measures are established during the decision-making process. Facilitate Transboundary Cooperation/Minimize International Conflict The transboundary/international aspect of transboundary EIA suggests a specific objective regarding the need to facilitate transboundary cooperation and minimize international conflict. These are essentially two sides of the same fundamental objective. The sub-objectives this objective entails highlight the importance of promoting more effective negotiation between stakeholders (who will include national governments). The informed negotiated consent process in section 2.9.2 is the basis for key elements to further this objective. These sub-objectives focus on establishing a dialogic process between states that builds trust and leads to more attractive alternatives in the context of international environmental norms and standards; the transboundary EIA regime provides a legitimate forum for such a process. Providing mutually acceptable means of adjudicating disagreements and binding dispute resolution systems is also an important sub-objective. However, a corollary sub-objective concerns the need to emphasize proactive and facilitative multilateral guidance 81 rather than reactive intervention. Although, dispute resolution mechanisms need to be in place, it is equally important to minimize the need to use them through more anticipatory approaches to building international consensus regarding environmental decision problems. Support Substantive Decision Outcomes Substantive environmental decision-making supports decision outcomes based on genuine consideration of all the available information and values related to a decision problem. The existence of an ideal procedural framework for decision-making does not ensure that a decision will necessarily be based on the relevant information and stakeholder values that arise during the course of that decision-making process. The objective of supporting substantive decision outcomes emphasizes the need to apply the decision-making process as broadly as possible in order to capture all potentially significant actions and impact issues. Substantive issues must also be identified by addressing the underlying decision problem in a given situation rather than simply reacting to a proposed action (which can be presented in a manner that does not reveal all of its potentially adverse impacts). Decisions also typically involve the use of values and judgments throughout the decision-making and impact analysis process. In seeking to promote substantive decision outcomes, these values and judgments should be made as explicit as possible. Finally, the best decision options (i.e., alternatives) should be clarified and given full consideration based on their merits from the perspective of all stakeholders prior to making a decision. These sub-objectives support a transboundary EIA regime that seeks to force decision-making on the basis of substantive issues rather than the discretion of officials based on prevailing (and environmentally unsustainable) political and economic forces. Incorporate Goals and Principles of International Environmental Law and Policy As a vehicle for addressing international environmental decision problems, an effective transboundary EIA regime should also advance environmental laws and policies that transcend political boundaries. As discussed in the first six sections of Chapter 2 , a variety of international environmental law and policy instruments have evolved which set forth goals and principles with significant implications for transboundary environmental decision-making. The relevance of specific international agreements and other international environmental policy instruments will vary according to specific aspects of a given decision context. However, 82 several emerging international environmental norms and standards embody overarching concerns. These constitute clear sub-objectives for improving the quality of international environmental decision-making. The two sub-objectives specified in the context are based on the principles of sustainable development and the precautionary principle.73 In addition, an objective of an effective international environmental decision-making process should be to further the integration of international environmental norms and standards in circumstances where they are stronger than equivalent domestic policies. Transboundary EIA regimes offer an action-focused context for applying international environmental norms and principles, as well as objectives for relevant international environmental agreements. Taking advantage of this potential role to further broader international environmental management objectives is therefore an explicit sub-objective of the conceptual model for transboundary EIA. Apply Ecological Principles As discussed in section 2.1, the transboundary environmental decision-making is part of a global environmental problematique to which all decisions with potentially significant environmental consequences (including indirect and incremental effects) must be referenced. This requires the effective application of ecological principles in the context of transboundary EIA regimes. The discussion in section 2.1.1 emphasized the need to minimize the loss of natural capital, and to ensure that decisions respect the functional limits of biophysical systems (i.e., carrying capacity). Another sub-objective in this regard is to promote more effective international standards and norms for the weighting of ecological functions and values in the impact assessment process (e.g., significance evaluation). The upward harmonization of these aspects is critical to the development of transboundary environmental decision-making that effectively promotes the long-term sustainability of ecological functions and values that transcend political boundaries. 7 3 The emphasis here is on providing explicit measures for giving practical effect to principles such as these. Otherwise: "The uncertainties and ambiguities in the articulation of the principle [for example] have allowed sovereign nations to sign agreements they otherwise might not sign because the precautionary obligations are likely to be unenforceably vague... .[Furthermore] the next phase should be to strengthen the content of future articulations to refine and develop the substantive obligation to exercise precaution" (Hickey and Walker, 1995, p. 438). 83 Promote Effective Stakeholder Participation Stakeholder participation is a fundamental aspect of EIA, as well as decision-making generally. Promoting effective stakeholder participation is an important objective for improving the effectiveness of international environmental decision-making. The sub-objectives associated with this objective emphasize the need to actively include all affected stakeholders, and to weight their values and objectives equitably when making the value tradeoffs that are an unavoidable part of environmental decision-making. Another objective in this regard is derived from the discussion of localized collaborative institutions in section 2.9.3. This suggests the need for transboundary environmental decision-making to be part of a co-evolutionary process wherein the transboundary environmental decision-making process is closely associated with the development of transboundary localized collaborative institutions that serve to organize and advocate transboundary stakeholder values more constructively. These objectives promote a more fully empowering form of stakeholder participation, and a higher quality international environmental decision-making process as well. Advance Institutional Effectiveness The objectives and procedural structure of the proposed conceptual model for transboundary EIA expand the conventional EIA approach in ways that place greater demands on existing institutional frameworks. Consequently, another essential sub-objective concerns the need to provide competent and adaptable institutional arrangements for administering transboundary EIA. This involves finding new ways for domestic institutions to adapt to new demands that are based on advancing the other objectives within this comprehensive set. Achieving greater effectiveness in this regard is also directly related to institutional capacity building for developing and administering relevant domestic and international environmental policies. As discussed in greater detail in Chapter 4, this issue is particularly relevant in the North American context where there are tremendous disparities between the respective parties to the transboundary EIA agreement. 84 Maintain Efficiency and Cost-Effectiveness Maintaining efficiency and cost-effectiveness is a critical objective for establishing the long-term viability of a transboundary EIA regime. If this objective is not adequately achieved, the transboundary EIA process will be subject to greater opposition from critics or a stakeholder backlash. This pressure can easily become strong enough to undermine the political support needed to maintain effective implementation of other important provisions. This can ultimately erode the credibility and effectiveness of the entire process. At a minimum, this objective entails using information and expertise effectively in the decision-making process, and establishing reasonable time limits for administering specific provisions of the transboundary EIA process. 3 . 2 . 2 . 9 Constrain Exercise of Sovereignty As the discussion in Chapter 2 highlighted, there is a fundamental tension between what is required in order preserve transboundary ecological integrity versus the ability of nations to supersede such considerations by exercising state sovereignty. Therefore, a critical objective of an effective international environmental decision-making process is to constrain the exercise of sovereignty where it is clearly at odds with reasonable opportunities to preserve ecological integrity in specific decision contexts. This entails providing a legally binding and enforceable basis for implementing a transboundary EIA regime that does not allow a decision-maker to overrule legitimate transboundary stakeholder concerns in the course of a transboundary EIA by invoke sovereignty. Achieving this objective also entails the need to establish a supranational authority for oversight of effective transboundary EIA and political accountability. 3.2.3 Summary The comprehensive set of objectives discussed above and outlined in Table 4 provide a sound basis for formulating and evaluating a transboundary EIA regime. On the other hand, this set of objectives is not being set forth here as being definitive or exhaustive. The results outlined in Table 4 simply represent a reasonable effort from one policy analyst's perspective to establish a more explicit and credible basis for formulating a conceptual model for a transboundary EIA regime, and for evaluating ongoing efforts to develop transboundary EIA 85 regimes (e.g., the NACEC TEIA Agreement). These objectives would probably be changed if additional efforts were made to elicit and structure objectives with a wider range of knowledgeable informants. Nonetheless, this set of objectives provides a credible basis for proceeding with the development of a conceptual model for transboundary EIA in the context of this study. In order to do that, however, these objectives must first be translated into a procedural structure that is framed within the broader contextual framework of relevant environmental policy regimes. That process is described in the following sections. 3.3 I N T E G R A T I N G O B J E C T I V E S W I T H I N S T I T U T I O N A L F R A M E W O R K S F O R T R A N S B O U N D A R Y E I A As discussed earlier, EIA systems occur in a broad institutional and administrative context that is conditioned by socio-cultural, economic and political influences. Therefore, any further consideration and analysis of objectives for transboundary EIA is only practicable to the extent that it is referenced to a realistic institutional framework for its implementation. The relevant institutional frameworks for integrating transboundary EIA in the context of North America are those responsible for the national and subnational administration of legislated EIA policies and procedures in Canada, Mexico, and the United States. Therefore, the conceptual model is structured around the conventional features of the EIA process that was discussed in section 2.7. The institutional basis for the EIA regimes of Canada, Mexico, and the United States are generally consistent with this generalized EIA framework. Although a generalized framework is proposed, the ability to readily adjust features of a TEIA regime in order to adapt to new issues and knowledge regarding technical understanding, affected values, and relevant policy developments is an important aspect of a model TEIA regime. As the ongoing amendments to other TEIA regimes (e.g., Espoo Convention, and EU Directive) illustrate, their initial procedural and substantive elements generally have shortcomings that either cannot overcome political opposition or emerge during implementation. To the greatest extent possible, mechanism for adapting these TEIA elements in response to political windows of opportunity and limitations revealed during implementation should be incorporated. In other words, it is assumed that any conceptual model will require adaptation to unforeseen circumstances 86 3.3.1 Supranational Authority The most challenging aspect concerning the integration of transboundary EIA objectives with institutional frameworks is the absence of existing supranational authorities.74 However, the evolution of environmental management under the European Union, and the ongoing formation of other multilateral environmental governance institutions (e.g., NACEC), at least demonstrate the potential for establishing quasi-supranational environmental organizations. Short of full supranational authority, organizations such as the NACEC can at least facilitate efforts to bring as much pressure to bear as possible against unilateral decision-making that has an adverse impact on transboundary environmental values. A more in-depth discussion of the potential of the NACEC in the regard is presented in Chapter 4. A supranational authority is included in the conceptual model for transboundary EIA being developed here, because that was identified as an important sub-objective. At the same time, the limited probability of realizing this objective under the prevailing state-centered international environmental policy regime is acknowledged. Nevertheless, many of the functions that such an entity needs to provide could be advanced by an appropriate quasi-supranational authority. Therefore, the conceptual model for transboundary EIA incorporates a supranational authority with the proviso that its ability to supersede sovereignty in transboundary environmental decision contexts is not a function that would be readily achieved. 3.3.2 Related Organizations There are myriad environmental and stakeholder organizations related to environmental decision-making in transboundary contexts. A systematic overview of such organizations is beyond the scope of this analysis. Nonetheless, these organizations are essential elements of the overall institutional framework within which a transboundary EIA regime is necessarily applied. The conceptual TEIA model acknowledges the importance of these organizations without specifying what they are. In particular, the conceptual model assumes that there will be parallel efforts to develop transboundary localized collaborative institutions that will provide a more structured framework for integrating transboundary 7 4 As discussed in section, the plausibility and justification for such a supranational environmental authority is arguable although many international environmental policy analysts have asserted the need for such institutions. 87 stakeholder values into the environmental decision-making process. Rather than addressing working relationships with specific organizations, the conceptual TEIA model is simply as explicit as possible about promoting meaningful stakeholder participation and consideration of affected values. The conceptual TEIA model would operate under the assumption that it would actively facilitate linkages with transboundary localized collaborative institutions as they emerged.76 3.4 CONCEPTUAL MODEL FOR AN EFFECTIVE TRANSBOUNDARY EIA REGIME The structured objectives shown in Table 4 address both contextual and procedural aspects of transboundary EIA. The following sections elaborate how these objectives translate into specific aspects of a conceptual model for transboundary EIA based on their contextual or procedural significance. The entire conceptual TEIA model consists of three major elements: 1) the comprehensive set of objectives (as presented in Table 4); 2) a contextual framework (as illustrated in Figure 1); and 3) a procedural structure (as illustrated in Figure 2). Most transboundary EIA regimes are defined exclusively by their procedural elements and the specific legal provisions by which the TEIA process is administered. Because the model for transboundary EIA being proposed here is conceptual in nature, however, the emphasis is not on detailing specific provisions. Instead, the goal has been to create a conceptual model for a transboundary EIA regime that addresses all of the objectives that were identified and structured in the analysis presented to this point. In order to do this, a procedural structure has been developed that incorporates most of the sub-objectives (or the means for incorporating them) in Table 4. A contextual framework is then articulated based on the analysis presented in Chapter 2 that situates the model TEIA process within the broader 7 5 The development of broader transboundary institutional linkages related to environmental issues is in fact occurring. A notable example is the Border Environmental Cooperation Commission (BECC) for the U.S.-Mexico border area. A variety of grass roots organizations also have a borderlands environment focus. 7 6 As will be discussed in Chapter 4, this function has been assumed to a significant degree by the NACEC. 88 international environmental policy context that is also an important aspect of effective implementation. 3.4.1 Contextual Framework As discussed in the contextual overview of transboundary environmental decision-making presented in Chapter 2, transboundary EIA regimes are nested within a broader aggregate of environmental policies and decision-making processes defined by the relevant political and institutional frameworks in a particular country. The performance of transboundary EIA implementation cannot be cleanly separated from this broader context. It follows that a conceptual transboundary EIA model must be defined both by its procedural structure and its explicit provisions for defining its relationship to the broader environmental policy framework within which it is situated. The general features of the relationship between a North American transboundary EIA regime and these broader contextual linkages are diagrammed in Figure 1. Figure 1 provides a generalized representation of the linkages between a North American transboundary EIA regime and the principal concepts related to: (1) its constituent national environmental policy regimes (including domestic EIA policies); (2) the broader global and continental environmental policy regimes within which it is situated; (3) the influence pathways of the Ecological Principles and Institutional Objectives, particularly through the mechanism of International Environmental Norms and Standards; (4) the leading facilitative role of a transboundary administrative organization; and (5) the facilitative functions of the alternative environmental decision-making approaches discussed in the section 2.9. Note that the TEIA procedures shown in the box labeled "Transboundary EIA Process" represent an abbreviated version of the procedural model developed in the following section. This transboundary EIA process is nested within a broader transboundary EIA regime that shares a reciprocal relationship with its constituent domestic EIA policies. The elements of the Transboundary EIA Regime are also interrelated with the broader domestic and aggregate North American environmental policy regimes that also have reciprocal linkages. These relationships are represented by the larger arrows between the Transboundary EIA Regime and the Domestic Environmental Policy Regimes, and by 89 Figure 1 . Contextual linkages associated with a North American transboundary EIA regime G L O B A L E N V I R O N M E N T A L P O L I C Y R E G I M E TRANSBOUNDARY EIA REGIME Transboundary Adminis t ra t ive Organiza t ion TRANSBOUNDARY] L f EIA PROCESS Value-Focused Decision-making Localized Collaborative Transboundary Institutions Informed Negotiated Consent Preliminary Activities T * i c Screening q u | Scoping u Impact Analysis] J -CL •< | Mitigation i i 1 Report Preparation c 0 1 EIA Report Review 1 I 1 | Decision-making 1 Follow-up/Monitoring Policies f International Environmental Norms and Standards Domestic Environmental Policy Regimes on Ecological Principles Institutional Objectives their enclosure within the North American Environmental Policy Regime. As a part of an overarching Global Environmental Policy Regime, domestic and international TEIA/environmental policy regimes are influenced by International Environmental Norms and Standards. The Ecological Principles and Institutional Objectives (as represented in Table 4) are conceptual influences which are channeled into the transboundary EIA regime through their extensive linkages to broader environmental policy development, and more directly through advocacy by a transboundary administrative organization and its application of subsidiary environmental decision-making approaches. The purpose of the contextual linkage diagram is to help clarify the broader context that will have a significant influence on the effectiveness of a transboundary EIA regime. The contextual linkages in Figure 1 are intended to highlight the factors, elements and influence pathways that have been discussed to this point in the analysis. It would not be possible to illustrate all of the contextual linkages, and this has not been attempted here. But it is worth noting that there are much more complex and iterative linkage pathways between the elements shown and not shown (e.g., non-state actors such as international environmental NGOs). In addition, the critical feedback pathways of environmental degradation and scientific information that underpin the formation and prioritization of ecological principles and relevant institutional objectives are not represented. Nonetheless, the diagram conveys several of the critical contextual relationships that are being addressed by the conceptual TEIA model. 3.4.2 Procedural Structure The procedural structure of the conceptual model for transboundary EIA (see Figure 2) incorporates the generalized elements of EIA process discussed in section 2.7.3. These elements are generally consistent with the EIA regimes of each member state. The thrust of the conceptual TEIA model is to address limitations of existing TEIA regimes through a more fully developed process of transboundary stakeholder involvement and international negotiation as emphasized in the alternative decision-making models discussed in section 2.9. 91 Figure 2. Procedural structure of conceptual model for transboundary EIA 92 The procedural aspects of the conceptual TEIA model are structured within four general phases that highlight the different emphases placed on contextual, analytical, decision-making, and implementation elements as the TEIA process is applied and implemented. Other elements of the procedural structure (represented by the broad vertical arrows to the right) span these phases; these elements represent aspects of international environmental decision-making that can apply throughout the process (e.g., Mitigation, Transboundary Consultation, and Informed Negotiations). In addition, the reciprocal linkages between the procedural structure of the TEIA model and key contextual elements (i.e., Localized Collaborative Institutions and applicable Environmental Policy Regimes) is represented by a box with reciprocal arrows in the upper right. This illustrates how the procedural structure's explicit contextual linkages (as shown in Figure 1) are intended to promote objectives such as effective stakeholder participation and more effective implementation of ecological principles and international environmental policies. Finally, the essential objectives that would be provided by a Supranational Authority for overseeing the TEIA process, and managing its relationship with broader contextual issues, are shown in the vertical bar on the right side. 3.4.3 An Integrated Conceptual TEIA Model The development of the conceptual TEIA model has proceeded through the development of three principal components: (1) a comprehensive set of objectives; (2) a contextual framework; and (3) a procedural structure. These components must be taken as an integrated whole in order for the conceptual TEIA model to provide a credible basis for evaluating existing TEIA regimes and formulating new TEIA guidelines. The comprehensive set of objectives provides a substantial and inclusive basis for defining what should be expected from a TEIA regime. The contextual framework clarifies the relationship of the subject TEIA regime to broader issues regarding international environmental governance and the necessary coordination of the domestic environmental policy regimes that are involved. The TEIA process must draw on the elements of this contextual framework for substantive guidance, political support, and as a broader context for measuring its performance (especially as a means of advancing international environmental norms and standards that exceed domestic requirements). In this context, the procedural structure defines a process that addresses all of the objectives for effective transboundary EIA. 93 From a conceptual perspective, the conceptual TEIA model addresses issues for which straightforward procedures are more difficult to construct. On the other hand, the conceptual TEIA model reflects a conscious effort to avoid the emphasis that is often placed on framing the analysis of EIA exclusively as a set of procedural issues, rather than as a pragmatic entry point for instituting more creative approaches to making higher quality environmental decisions. The latter point deserves particular attention in the context of transboundary environmental decision-making. An underlying argument being advanced here is that transboundary EIA will necessarily involve transboundary negotiation focused on conflicting value tradeoffs between transboundary stakeholders. And at this stage in the ongoing evolution of transboundary EIA, these issues have not been adequately evaluated at a conceptual level. Because this study focuses on developing a conceptual TEIA model, the goal has not been to articulate procedures and guidelines to the level of detail that would be required if the goal were to develop an actual TEIA policy in a specific institutional context. At the same time, the conceptual TEIA model provides a basis for evaluating the conceptual effectiveness of such policies. Therefore, the conceptual TEIA model is conspicuously vague in terms of how key procedural features would be carried out. This is in contrast to most existing TEIA regimes which are often specific about issues such as transboundary notification and screening criteria, but more generalized in terms of how international disparities regarding the interpretation of significance, conflicting value tradeoffs, and distribution of benefits should be addressed in the context of transboundary environmental decision-making. The conceptual TEIA model requires additional refinement in order to make it a more practical basis for translating the conceptual issues into actual TEIA policies. The model is not specific enough to adopt in any existing contexts. However, it provides a useful basis for developing more robust models from which to craft increasingly effective transboundary EIA regimes in specific contexts as the opportunities arise. As noted above, these regimes will be more effective to the extent that they facilitate international negotiations, promote the creation of more attractive alternatives, and clarify the value tradeoffs amongst affected stakeholders. This does not guarantee that transboundary decision outcomes will be better than what would occur using a more conventional EIA approach, but it greatly increases the probability that 94 there wil l be a more effective basis for providing insights and alternatives for transboundary decision-makers that address joint objectives and can be implemented. 95 Chapter 4 CASE STUDY COMPARISON: THE NAAEC TEIA AGREEMENT 4 . 1 CASE STUDY RATIONALE, CONTEXT, AND ANALYTICAL APPROACH This chapter presents the case study comparison of the conceptual model for transboundary EIA developed in the preceding chapter with the transboundary EIA agreement being established through the North American Agreement on Environmental Cooperation. The NAAEC's mandate to develop a mutually acceptable agreement for Transboundary EIA (hereinafter referred to as the Draft TEIA Agreement)77 provides a timely case study for this international environmental policy analysis, because it represents a specific provision for advancing more effective transboundary EIA in North America. The effectiveness of the NAAEC's TEIA Agreement is also viewed as potential model for developing transboundary EIA regimes in other areas.78 Before proceeding with the comparative analysis between the conceptual TEIA model and the Draft TEIA Agreement, some important contextual issues are examined regarding the North American case study. These issues include: (1) the continental ecosystem context; (2) existing North American EIA regimes; (3) the development of the NAAEC; and (4) the development of the Draft TEIA Agreement. The comparative analysis of the conceptual TEIA model and the Draft TEIA Agreement is then presented in two extended tables. The first table summarizes each element of the Draft TEIA Agreement and compares it to relevant features of the conceptual TEIA model. The second table outlines the principle features of the conceptual TEIA model, and examines the degree to which these features are provided in the Draft TEIA Agreement. Finally, the results of this comparative analysis and their relationship to the broader contextual issues are summarized. 7 7 The current daft version of the TEIA Agreement has been used in lieu of a completed TEIA Agreement. 7 8 "In another project that has broad implications, the Council has passed a resolution committing the nations to complete an agreement on transboundary environmental impact assessment. The goal is to develop a dispute avoidance mechanism that would allow the public and governments to participate in the assessment of projects 9 6 4.2 NORTH AMERICA AS AN INTERNATIONAL ENVIRONMENTAL REGIME It is evident that natural resources are not limited by the boundary lines which separate nations, and that the need for conserving them upon this continent is as wide as the area upon which they exist. President Theodore Roosevelt (1908) As Munton and Kirton (1994) observe: "Canadian, American, and Mexican efforts to deal with environmental issues are creating a new environmental regime for North America." In this context, transboundary EIA may be considered a co-evolving sub-regime of a continental environmental management regime. Although the political impetus for this trilateral environmental cooperation is being driven by economic policy and the free trade agenda, it can also be argued that there is a strictly ecological argument for promoting a continental ecomanagement regime (Szekely, 1992). In any case, it is worth considering the implications of North America as an emerging international environmental regime in order to better contextualize the consideration of a continental transboundary EIA regime. As a commonly adopted decision-making procedure, EIA is clearly an important element within the functional and geographic scope of a North American environmental regime. However, the potential role of transboundary EIA as a sub-regime for improving transboundary environmental decision-making in North America has received relatively little attention. This lack of attention is unfortunate, particularly because there is a strong interest amongst international environmental regime analysts in research on the effectiveness of regime implementation that parallels current efforts to improve EIA effectiveness. Therefore, research focusing on the relationship between transboundary EIA and the implementation of an international environmental regimes such as the North American Agreement on Environmental Cooperation could identify opportunities for synergy in terms of advancing regional environmental objectives and improving the effectiveness of environmental decision-making. A more detailed explication of regime analysis in this context is beyond the scope of this thesis. The intention here is to highlight the potential benefits of applying a regime-based approach to the analysis of transboundary EIA in the context international environmental agreements such as the NAAEC. The review of literature on regime effectiveness indicates that may cause significant adverse environmental impact on the territory of a neighboring country. This, too can serve as a model for other regions in the world" (CEC Secretariat, 1998)[italics added]. 97 that North America can be conceptualized as an international environmental regime based on regional integration pursuant to NAFTA. This perspective holds practical implications for the consideration of transboundary EIA as a notable sub-regime. However, this regime is too immature and expansive to be a reasonable subject for environmental policy analysis. Nonetheless, the potential implications must be acknowledged, the most important of which is the degree to which this emerging regime perspective further legitimizes transboundary ecosystem values to a greater degree than the conventional primacy of sovereignty. 4.2.1 The Continental Ecosystem Context The degree to which North America is perceived as a functionally interdependent, continental ecosystem has significant implications for the potential efficacy of trilateral environmental cooperation generally, and a transboundary EIA regime in particular.79 In addition, the degree to which ecological interdependencies (at sub-continental scales as well) are made the basis for a cooperative approach to environmental management and decision-making will depend on the commitment within and between the three countries to ecosystem management. "[Ejcosystem management views the land and resource base. . . as a holistic or integrated entity. Recognizing that natural systems often cross jurisdictional boundaries, ecosystem management emphasizes the need for inter-jurisdictional coordination to ensure ecological integrity and sustainable resource systems" (Keiter, 1994). Although, ecosystem management is a relatively new concept, it has become the conceptual cornerstone for environmental management in North America. As Keiter (1994) also mentions: "Embedded in the concept of ecosystem management, however, are enormous complexities that natural resource managers are just beginriing to confront." Even though the concept of ecosystem management may be acceptable in principle throughout North America, its implementation is likely to provoke disagreements amongst countries over issues of uncertainty and the significance of impacts on ecosystem functions. These implications will not be explored in detail here. It suffices to emphasize that ecosystem 7 9 For the purpose of this analysis, North America consists of the three territorial areas of Canada, the United States (excluding Hawaii), and Mexico. It should be noted that this emphasis on a trilateral continental ecosystem perspective still represents a somewhat arbitrary delineation of ecosystem boundaries. Ecosystem functionality is not necessarily defined by landmass contiguity. Therefore, areas beyond the trinational areas comprising the bulk of the North American land mass exclude functionally interconnected areas such as Central America, the Caribbean Basin, and trans-Arctic terrestrial and marine ecosystems. 98 management provides an increasingly robust scientific basis for environmental decision-making based on protecting ecosystem functions that frequently transcend political and jurisdictional boundaries. Furthermore, the functional interdependence of ecosystems can be readily applied at a continental scale.80 The ecosystem management approach also implies the diminution of sovereignty as a basis for environmental decision-making. According to Ward (1998, p. 81): Ecosystem management challenges the principal dimensions of state sovereignty: autonomy, control, and authority. Application of a management system on the basis of ecological principles and boundaries may require sharing of authority, and loss of legal and political control over flora and fauna previously considered either an integral part of the territorial state or available for the taking. The very concept of ownership that underlies claims of authority and control may be reconfigured with the establishment of ecosystem regimes. By extension, the image of the territorial state as an autonomous entity is, at the very least, thrown into question if the declared goal is one of protecting native ecosystem integrity over the long term. The integrity of the ecosystem, not the integrity of the autonomous sovereign state, is given pride of place. This suggests that ecosystem management and transboundary EIA provide a very complementary basis for advancing the concept of North America as an international environmental regime, because the ecosystem management perspective provides a substantive basis for transboundary decision-making that transcends political interests. On the other hand, considerable political resistance would be likely, and the principle support for ecosystem management is from scientists rather than more politically influencial groups. In any case, transboundary EIA may provide one of the best means available for addressing incongruities between ecosystems and political boundaries. Conversely, the emerging principles of ecosystem management strengthen the substantive basis for improving the effectiveness of transboundary EIA. In fact, the transboundary EIA provisions of the NAAEC are a relatively small (and arguably under-emphasized) part of the overall initiatives for advancing a continental ecosystem management regime. The strongest advocates for a continental approach to managing North American ecosystems have been conservation biologists and environmental activists working on the Wile-lands Project. The Wildlands Project envisions a long-term, biologically-based strategy for protecting and restoring ecosystems across North America. (Johns, 1994). Similarly, analysts associated with the International Transboundary Resources Centre drafted the Cuixmala Statement on the Protection of the North American Environment at a meeting in 99 4.3 EXISTING EIA REGIMES IN NORTH AMERICA [0]ne might speculate that EIA will be most effective where environmental values (1) are implicit and consensual in the national culture, and (2) are explicit in public law and policy. Thus EIA is nowhere as effective as it might be. Lynton Caldwell (1989: p. 12) The section provides a brief characterization of the relative status of EIA in the three countries comprising North America. The purpose of doing this is to highlight the different factors influencing the relative effectiveness of EIA and transboundary EIA' practice. Clarifying these differences focuses attention on the issues that will need to be addressed in order to harmonize EIA regimes and improve the effectiveness of transboundary EIA in the three countries. Disparities in the standards and enforcement of domestic EIA regimes may have negative consequences for environmental protection regionally. As with other environmental policy instruments, less demanding domestic EIA regimes may exert "downward" pressure on the performance of EIA regimes in other countries or jurisdictions in order to remain competitive economically in a system of free trade. In addition to specific provisions regarding transboundary EIA, the underlying goal of the NAAEC is to facilitate the strengthening of domestic environmental protection policies more generally as well. The NAAEC embodies a trilateral commitment to apply domestic EIA regimes to the fullest practicable extent. 4.3.1 Canada Canada has been among the vanguard of countries that established durable EIA regimes in the 1970s. The most significant recent development has been the adoption of the Canadian Environmental Assessment Act (CEAA) in 1995 which was promulgated in order to address the weaknesses of the previous federal environmental assessment law. The evolution of EIA at the provincial level is also notable, because of the sovereignty provinces retained in Cuixmala, Mexico, in 1992. The Cuixamala Statement promotes the formation of a "Model Draft Treaty Establishing a Region and Biological Cooperation in North America." 100 terms of natural resource management. Harmonization of federal and provincial EIA regimes has been a significant issue.81 4.3.2 Mexico Very little analysis has been conducted on the application of EIA in Mexico. Aside from articles by Pisanty-Levy (1993) and Bojorquez-Tapia and Garcia (1998), analyses of Mexican EIA regimes have generally been limited to project-specific case studies, or they have not been widely published (e.g., conference proceedings). In spite of this, it is clear that the effectiveness of EIA regimes in Mexico lags well behind those within both Canada and the United States. The principal reasons for this can be attributed to Mexico's less developed economy which are manifested in the far less developed institutional capacity for environmental science and management. As Babcock and Nieder (1995, p. 14) observe: '^ Environmental impact assessment (EIA), although much needed, has not yet developed to a high level in Mexico...." Lomeli (1996) outlines a variety of issues regarding the effectiveness of EIA in Mexico. He concludes that the main technical and administrative problems of EIA are: • decrease in the reply capacity of the agency responsible for the application of environmental policy as well as the normative instrumentation in the process of analysis, evaluation and resolution of the studies of environmental impact; • lack of follow-up and environmental monitoring of the prevention and mitigation measures mentioned in the studies of environmental impact; • existence of general guides applicable indiscriminately in the carrying-out of EIA in any level (general, immediate, and specific), project and region; • deficiencies in the process of accreditation of service givers in the area of environmental impact and in the evaluation of the quality of the studies of environmental impact; • deficiencies in public participation in the process of EIA in decision making; • lack of official Mexican norms, criteria and environmental indicators as elements of measures complementary to EIA; • nonexistent of deficient evaluation of transborder impact; • no evaluation of accumulative and synergetic impact; • use of general and qualitative evaluation techniques; 8 1 Provisions for harmonization between overlapping responsibilities for federal and provincial EIA have been the subject of negotiations through the Canadian Council of Ministers of the Environment (CCME) culminating in the 1992 Framework for Environmental Assessment Harmonization, and a Sub-Agreement on Environmental Assessment in 1998. 101 • no social and economic valuation of environmental impact, • lack of integration of EIA in development plans and programs; and • a deficient relation with other planning instruments such as territorial ordinance. These deficiencies of existing EIA regimes in Mexico reflect many issues that continue to limit the effectiveness of EIA in both Canada and the United States as well. However, the degree to which these issues limit EIA in Mexico tend to be greater due to its political and economic characteristics as a less developed country. In spite of its substantial limitations relative to the United States and Canada, the basis for improving the effectiveness of environmental policy implementation in Mexico has been steadily improving. There are still major political and structural obstacles that must be overcome before anything approaching parity can be established.82 The basic legal requirements for EIA have been established, but building the institutional capacity for effective implementation will take years. A variety of specific measures must be taken in this regard. As Babcock and Nieder (1995, 14) note, for example: "Mexico must develop more and better native environmental professionals." Similarly, Bojorquez-Tapia and Garcia (1998, p. 238) suggest that "major efforts in training of public servants and consultants must be conducted if the EIA process is to be implemented effectively. As well, the basis for more meaningful public participation in the EIA process needs to be strengthened. Such conditions are only likely to follow from success in broader initiatives to stabilize Mexico's economy and democratize its political process. 4.3.3 The United States The United States' EIA regime comprised of N E P A and the "little NEPAs" at the state level have set the standard for EIA internationally. However, this standard is being eclipsed by more recent EIA policy developments in other countries. Perhaps the most distinguishing feature of the N E P A EIA process has been the legalistic focus of its implementation. Nowhere else do EIA policies appear to have been as consistently a response to litigation and judicial decisions. Although these judicial decisions helped establish the basis 8 2 As Mumme (1998, p. 199) concludes, "...Mexican environmental policy still endures the limitations of its political and administrative system." And although the policy reforms of the past decade have been significant, it is too early to evaluate their substantive value. In addition, improvements "...may depend on emerging alliances between environmental organizations in the emerging context of N A F T A and their ability to use the new trilateral arena to mobilize public opinion, and hold government environmentally accountable." 102 for overcoming the initial resistance to EIA, they have consistently delimited a procedural rather than substantive role for E I A . 8 3 N E P A survived its nadir of political support under the Reagan administration during the 1980's, but it has not received particularly strong support from subsequent administrations. Nor does the internationalization of EIA appear to be a priority for the United States. There is strong support for the development of EIA in the context of the Antarctic Protocol, but the United States has yet to ratify the Espoo Convention. 4.3.4 Comparative Analysis The key issue of comparative EIA effectiveness among the three North American countries concerns the performance of Mexico's EIA regime relative to those of Canada and the United States. The substantially weaker EIA regime of Mexico reflects the limitations of its economy and institutional capacity for environmental management. The relative performance of the U.S. and Canadian EIA regimes is more debatable, and the literature review does not reveal any decisive analyses in this regard.84 The challenge for promoting the upward harmonization of EIA and effective transboundary EIA in North America centers on improving the performance of EIA in Mexico. At the same time, the reluctance of the United States to ratify the Espoo Convention (not to mention other international environmental agreements) highlights the lack of leadership the United States has exercised in advancing a stronger role for transboundary EIA to address international environmental problems. The transboundary relationships of the three principal E IA regimes in North America are represented schematically in Figure 2. As this diagram illustrates, there are bilateral and trilateral linkages between the three domestic EIA regimes which are nested within broader domestic environmental policy regimes which include bilateral and trilateral linkages. These overlapping, concentric representations of sovereign environmental policy are situated within an all-encompassing international environmental policy context. The simplified diagram 8 3 Although Hoberg (1997, p. 384) asserts that "the distinctive legalistic policy style in the US has actually helped US environmentalists." 8 4 As Hoberg (1992b, p. 259) observes: "Comparing policy outcomes under the two [EIA] systems is extremely difficult. It would seem that many more full-blown impact assessments are performed in the US than Canada, even when taking into account the larger size of the US. [Furthermore].... While the impact on policy decisions of these different systems is uncertain, the American impact assessment requirements thus far certainly have been more rigorous, and appear to have generated more assessment activity." However, he also notes that the 103 Figure 3. Trilateral relationship of North American EIA regimes INTERNATIONAL ENVIRONMENTAL POLICY CONTEXT I J indicates the relative complexity that a trilateral EIA relationship entails. However, the graphic symmetry is not intended to reflect the highly asymmetrical relationship between the actual elements and linkages represented. Efforts to develop a trilateral TEIA regime in North proposed Canadian EIA legislation (i.e., the CEAA enacted in 1995) could make Canadian EIA requirements "as stringent as those south of the border." 104 America are also limited by a strong history and bias towards bilateral working relationships for environmental management.85 Although Canada has taken an active role in the NAAEC at the federal level, the provincial governments have not been supportive. On the other hand, the provinces continue to be active in the development of subnational mechanisms for transboundary environmental management.86 The United States has subnational EIA policies along its borders with both Canada and Mexico. However, these represent two very different environmental policy contexts due to the disparate character of the two border environments, and their respective transboundary economic linkages. Perhaps the most important factor regarding the relative performance of the three national EIA regimes is the relative strength of public and political support for increased environmental protection. There are economic and political forces in all three countries poised to weaken environmental policymaking and enforcement in favor of economic development (i.e., growth). As Hoberg (1997: p. 385) asserts, "the momentum is clearly with the forces of retrenchment" rather than progressively stronger environmental protection. The ability of pro-environment interests in each country to resist the "backsliding" forces varies. As Mumme (1998) suggests, Mexican environmental advocates could potentially benefit from the international forum that the NAAEC presents; although, it is not clear that this would sufficiently offset the potentially negative effects associated with the accompanying trade liberalization. Hoberg (1997) posits that the Canadian environmental governance regime is more susceptible to backsliding than the American system, because "Canadian institutions are less effective than American ones in thwarting policy reversals" (p. 385). In any case, there is clearly a role for a multilateral environmental regime that will help maintain the highest possible environmental protection standards, including those for EIA. 8 5 "Though increasingly embedded in a framework of multilateral and trilateral agreements, North American transboundary environmental management remains predominately bilateral in nature. This fact is a function of both geography and politics. The North American region is composed of three nations whose boundaries are drawn in a straightforward, fixed, largely undisputed, and binary fashion. This fact is significant in limitiing the scope and nature of territorial disputes and those involving natural resources and environmental degradation. The political dimension derives in part from the geopolitical realities of the boundaries; but it also reflects prevailing practices in international law and diplomacy, where bilateral approaches hsitorically have predominated over multilateral forms of cooperative engagement across boudnaries" (Sanchez-Rodriguez et al, 1998: p. 33). 8 6 "Within their respective EIA frameworks, four of Canada's provinces (British Columbia, Alberta, Manitoba, and Quebec) also have requirements for transboundary environmental impact assessment either through provincial legislation or through bilateral agreements with neighbouring American states" (Hoberg, 1992). 105 4.3 THE NORTH AMERICAN AGREEMENT ON ENVIRONMENTAL COOPERATION The environment knows no borders. The air we breathe, the water we drink, the animals which move freely, all bind us together. But with these shared resources comes a collective responsibility. Only by working together will we solve North America's most pressing environmental problems in an efficient and cost-effective manner. In this way, we can make the North American region an environmental example for the rest of the world. Environment Ministers of the N A F T A Countries - Oaxaca, Mexico 10/13/95 4.4.1 Political Genesis The North American Agreement on Environmental Cooperation (NAAEC) 8 7 was created in response to the concerns of environmental interest groups who argued that the passage of NAFTA 8 8 would cause a variety of adverse environmental consequences - unless effective countermeasures were established. These concerns were part of a broader debate regarding the relationship between international trade liberalization and environmental protection.89 The principal concern regarding NAFTA was the relative lack of environmental enforcement capacity in Mexico. A variety of interest groups asserted that the comparative advantage resulting from lower environmental compliance costs (in addition to lower labor costs) in Mexico, would attract foreign business interests, particularly "dirty" industries and labor-intensive manufacturing operations. This would in turn create pressures on national and sub-national jurisdictions elsewhere to relax their own environmental regulations in order to 87 North American Agreement on Environmental Cooperation Between the Government of Canada, the Government of the United Mexican States and the Government of the United States of America, September 13, 1993. The NAAEC is also referred to as the "Environmental Side Agreement/Accord" or "Parallel Environmental Accord" to the NAFTA. The NAAEC is "legally separate" from the NAFTA (Charnovitz, 1994); however, the NAAEC went into force on January 1, 1994 - simultaneously with the NAFTA. 8 8 "NAFTA does not have a specific section on environmental issues. It deals with those problems in six sections: the Preamble, the section on relationships with other agreements, the sanitary and phytosanitary (plants) measures subchapter, the chapter on technical barriers to trade, the chapter on investment, and in the dispute resolution provisions. The Preamble to NAFTA states that the partners are committed to sustainable development and to the strengthening of laws to protect the environment" (Thompson, 1995: 318). 8 9 Analysts disagree as to whether trade liberalization agreements have a positive or negative impact on environmental protection amongst affected countries. This debate is reflects a fundamental clifference in perspective regarding the relationship between the economy and ecological systems (e.g., Charnovitz 1994). In either case, Miller (1995) asserts that "...the fact is, trade pacts exist and will be around for the foreseeable future. Faced with this certainty, we still have the chance to work inside them, to improve them... [to] seek to harmonize environmental regulations to international levels..." A more detailed analysis of the trade-environment debate is beyond the scope of this thesis. It suffices to say that there is growing recognition that measures must be adopted to offset the potentially adverse environmental effects of trade liberalization agreements. 106 remain economically competitive and protect jobs. In other words, those opposed to the NAFTA asserted that it would result in a downward harmonization of environmental management regimes in North America. In the U.S., the Clinton administration was unwilling to see the hard-won terms of NAFTA jeopardized by the reopening of negotiations in order to incorporate environmental considerations. Instead, a separate environmental side agreement was prepared that would become effective simultaneously with the NAFTA. Charnovitz (1994: 258) concludes that the environmental side agreement was primarily the result of the Clinton administration's need to appease both business interests and environmental interests. In essence, the NAAEC "became part of the political price exacted for gaining assent to the NAFTA proper" (Saunders, 1994: 272). Various policy analysts and environmental groups have concluded that the NAAEC "has more to do with political expediency than environmental protection, resource conservation, and sustainable development" (e.g., Gale, 1995: 111). The political rationale that led the Clinton Administration to press for the adoption of a separate side agreement for environment concerns was not as compelling for Canada and Mexico.90 The NAAEC signatories perceived different pros and cons regarding their participation in NAFTA, and the manner in which environmental considerations regarding free trade should be addressed. Positions also varied within the heterogeneous political composition of the signatory countries.91 For instance, some provincial governments in Canada have been reluctant to ratify the NAAEC because they believe it could compromise their sovereign jurisdiction over certain environmental policy matters. In addition, the major non-governmental environmental organizations have been divided over the issue of supporting the NAAEC. These issues have led some analysts to conclude that the political will needed to make the NAAEC effective is not sufficient. In any case, it is clear that the NAAEC is in a somewhat tenuous position politically (Mumme, 1995, personal communication). The contested political genesis of the NAAEC therefore has important implications for its long-term viability, and for the fate of a North American transboundary EIA regime. Without sufficient political support, the transboundary EIA provisions and other continental environmental initiatives being advanced under the NAAEC may not survive. 9 0 See Winham (1994) for details on the three countries' general negotiation postitions on the NAAEC. 9 1 As Hahn and Richards (1989, p. 430) state: "[international] environmental agreements flow from the combined pressures of numerous domestic interest groups, each with different interests." 107 4.4.2 Trilateral Environmental Governance Issues The provisions set forth in the NAAEC have different implications for each of the Parties, because of both the differences in their respective domestic environmental management regimes, and because of the different political and administrative "personalities" in the three countries. According to Gale (1995), "one of the major regulatory and enforcement issues is that the parties to the agreements do not share the same legal and institutional arrangements for environmental management. This is not merely a question of administrative arrangements. It reflects a fundamental difference in values between the three nations" [emphasis added]. The implications of these differences are perhaps greatest for Mexico. As Mumme (1994) suggests: Although these provisions [of the NAAEC] apply to all three countries, they bear most heavily on Mexico, which as a developing country has unquestionably the worst record of environmental enforcement of the three countries and is the least responsive to public demands for environmental improvement. Not only does the CEC provide for supranational action against it, an extraordinary and unprecedented concession by itself, if provides an avenue of access to the Mexican policy process that has heretofore been unavailable to Mexican environmental groups, and it has the distinct advantage of linking domestic policy to an external system of accountability. These national differences are not examined here in greater detail. However, these differences represent the fundamental problem in terms of promoting upward harmonization of EIA regimes between the three countries. Although the success of the NAAEC in reconciling these disparities is certainly not guaranteed, the innovative and cooperative approach it represents is perhaps the most promising effort thus far. Unfortunately, that potential appears to be compromised by political pressure from member countries. For example, the recent resignation of the CEC's original Director, Victor Lichtenger, has been the subject of controversy. Kourous and Faulkner (1998) speculate that Lichtenger's resignation was the result of the signficant political pressure that the CEC receives from the three governments; pressure that is not balanced by political support.92 In any case, such events weaken the credibility of the CEC as a viable supranational entity for advancing a higher level of transboundary environmental protection. Ultimately, the ability of the CEC to 9 2 This controversy highlights the difficulty of analyzing the development of transboundary EIA policies in the context of the NAAEC. For outside analysts, it is very difficult to determine what is going on "behind the scenes" with the administration of the institutional processes and political influences affecting them. 108 act aggressively in this regard is dictated by the decisions of the three (or at least two of the three) environmental ministers representing the each country; however, each of these key actors are also political appointees with partisan interests to consider. 4.4.3 The Commission for Environmental Cooperation The most significant innovation of the NAAEC may be its creation of an "independent" trilateral commission charged with administering the provisions set forth in the NAAEC. 9 3 The Commission for Environmental Cooperation (CEC) is a precedent-setting attempt to establish an independent, multilateral body with explicit directives for advancing international environmental cooperation and sustainable development in North America.94 "The NACEC [Commission for Environmental Cooperation] is the first truly supranational body in North America created for the purpose of environmental administration" (Mumme, 1995). The NAAEC establishes an important precedent in several ways: it provides a model for predicating the passage of an international trade liberalization agreement on a substantial counterbalancing mechanism for environmental protection; it advances the concept of North America as an international environmental regime; and it creates a significant new supranational institution for North American environmental governance.95 However, the significance of the CEC is not an uncontested issue. For example, Charnovitz (1994) asserts that the CEC merely adds a layer of bureaucracy to an existing range of bilateral environmental agreements, and questions its political independence. CEC Organizational Structure Organizationally, the Commission for Environmental Cooperation consists of three elements: (1) the Council; (2) the Joint Public Advisory Committee (JPAC),9 6 and (3) the Secretariat. The Council is comprised of "cabinet-level or equivalent representatives" from each of the three countries, and represents the governing body of the Commission. The JPAC 9 3 NAAEC, Part Three (Articles 8 through 19). 9 4 The Mission Statement of the CEC reads: "The CEC facilitates cooperation and public participation to foster conservation, protection and enhancement of the North American environment for the benefit of present and future generations, in the context of increasing economic, trade and social links between Canada, Mexico and the United States." 9 5 As Kirton (1997, 480) asserts, the CEC has established itself as a de factor supranational rather than merely international process... [with] a broadening and deepening relevance." 9 6 Article 8. 109 consists of five politically appointed representatives from each of the three countries. The Secretariat is the most relevant element of the CEC in terms of transboundary EIA, because the Secretariat staff are responsible for implementing the work program of the CEC. 9 7 This includes the preparation of transboundary EIA recommendations pursuant to Article 10(7). Furthermore, the actions of the actions of the Council and the JPAC are based on the technical, administrative and operational support provided by Secretariat (CEC, 1995).98 4.5 THE NAAEC TRANSBOUNDARY EIA CONTEXT Transboundary EIA provisions are a small part of a much larger work program that includes other programs for addressing international environmental regulations, compliance, and management pursuant to the terms of the NAAEC. As suggested in the previous sections, the effectiveness of a transboundary EIA regime, and the overall effectiveness of environmental protection and sustainable development efforts in North America, are complementary issues. Assuming they continue to be pursued with reasonable effort, the implementation of the NAAEC's full provisions is directed at establishing a framework regime for continental environmental management based on, inter alia, principles of ecosystem management. At least conceptually, the CEC has laid the foundation for a longer term process of transboundary ecosystem management that includes a sub-regime for transboundary EIA. 9 7 Neglecting the role of such secretariats is a "major oversight" according to Sandford (1996, p. 3), because "secretariats play a crucial role in ensuring that treaty goals are transformed from legal text into practical achievements." 9 8 Personnel within the Secretariat are an important element in terms of how effectively the organization functions. However, there is an important qualitative dimension regarding the staffing of Secretariats and the level of support staff are given. Staff are politically appointed on a very selective and non-transparent basis. This vitiates against institutional accountability and effectiveness because, rather than emphasizing competence and mission orientation, such appointees are likely to be politically oriented and able to influence the work of junior staff (Mumme, 1996, personal communication). 110 4.5.1 EIA Provisions in the NAAEC "Environmental Impact Assessments are explicitly referred to in Articles 2 1(e)," 10 6(d)100, and 10 7(a)1 0 1" of the NAAEC" (Thompson, 1995: 324). Of these provisions, Article 10(7) is the only one that provides specific objectives for the Commission to address (i.e., the development of recommendations regarding transboundary EIA). EIA is also an implicit aspect of other provisions within the NAAEC. In particular, Article 3 of the NAAEC emphasizes the commitment of the signatory countries to "ensure that its laws and regulations provide high levels of environmental protection and shall strive to continue to improve those laws and regulations." According to Charnovitz (1994), this is possibly "the most lofty commitment in the NAAEC." On the other hand, this commitment is preceded by the recognition of "the right of each Party to establish its own levels of domestic environmental protection and environmental development policies and priorities, and to adopt or modify accordingly its environmental laws and regulations." Thus, the commitment to harmonization of the three national environmental protection regimes is qualified in such a way so as to remain ambiguous. Article 10(7) As noted above, Article 10(7) of the NAAEC provides the explicit directive to develop a transboundary EIA regime in the context of NAFTA. The text of Article 10(7) is as follows: Recognizing the significant bilateral nature of many transboundary environmental issues, the Council shall, with a view to agreement between the Parties pursuant to this Article within three years on obligations, consider and develop recommendations with respect to: a) assessing the environmental impact of proposed projects subject to decisions by a competent government authority and likely to cause significant adverse transboundary effects, including a full evaluation of comments provided by other Parties and persons of other Parties; b) notification, provision of relevant information and consultation between Parties with respect to such projects; and c) mitigation of the potential adverse effects of such projects. 9 9 As Charnovitz (1994) notes, the provision to "assess, as appropriate, environmental impacts" as stated in Article 2(e) is "the most important concern" among the "Gerneral Commitments" (i.e., Art. 2) of the NAAEC, although nothing more specific is mentioned. 1 0 0 Article 10(6)(d) requires the CEC Council to work to advance the environmental goals and objectives of NAFTA by "considering on an ongoing basis the environmental effects of the NAFTA." However, this provision is being pursued under a substantial CEC initiative that is does not appear to be incorporating EIA per se. 1 0 1 Article 10(7) is the basis for negotiating the TEIA Agreement. Ill 4.5.2 Transboundary EIA Consultation Process Article 10(7) requires that the CEC Council consider and develop recommendations regarding transboundary environmental impact assessment, notification, and mitigation within a three-year time period. However, although the NAAEC went into effect concurrently with the NATFA on January 1, 1994, the necessary consultations regarding transboundary EIA recommendations were not underway until February 1995,102 due to extra time that has been required to establish a fully staffed and operational Secretariat in Montreal. Initially, this appeared to reduce the time available for the trilateral negotiations on this issue. Nonetheless, a transboundary EIA working group consultation meeting was conducted on August of 1995, and included senior environmental impact assessment officials from the three countries.103 That meeting provided an opportunity to review the Parties' respective EIA regimes. Several substantive issues also emerged, including: what constitutes a "significant" impact; trigger mechanisms for international notification; avoiding "overnotification;" the different relationships of the EIA process to decision-making within and between the three national environmental management regimes; public participation issues; mitigation and project follow-up requirements; and timing issues. In addition, a set of "Overarching Principles"104 were drafted and subsequently adopted by the CEC Council. The Council also approved the Secretariat's 1996 Annual Program and Budget in late-1995. The 1996 work program provided substantial funding to 1 0 2 February 1995 is based on Seguin (1997). Other sources indicate that the substantive meetings did not begin until August of 1995. In either case, it was well into the time available under the time frame specified in the NAAEC. 1 0 3 There were about 25 participants at the initial consultation meeting, including representatives and senior EIA officials from the following agencies from: (1) the United States' Council for Environmental Quality, Department of State, Environmental Protection Agency, U.S. Embassy in Mexico, the Western Governors' Association (observer), and environmental agencies from the states of California, and Washington; (2) Canada's Department of Foreign Affairs and International Trade, Canadian Environmental Assessment Agency, and environmental ministries from the provinces of British Columbia, Ontario, and Quebec; (3) Mexico's Instituto Nacional de Ecologia, Secretaria de Relaciones Exteriores, Social Development Secretariat, and the states of Nuevo Leon and Tamaulipas; and (4) staff from the CEC Secretatiat. The activities at the August 1995 meeting were summarized by Pat Spurgin (a participant from the Washington State Department of Ecology) in a presentation to the Annual Meeting of the British Columbia/Washington Environmental Cooperation Council in Bellingham, Washington on December 13, 1995. 1 0 4 The Transboundary Environmental Impact Assessment Overarching Principles can be summarized as: 112 continue the transboundary EIA consultation process by senior-level government officials that was initiated in 1995. Two additional program objectives are to: (1) "Establish technical, drafting and work groups as appropriate;" and (2) "Conduct multistakeholder consultations." At the following consultation meetings on February 1-2, 1996, "the Parties agreed on a list of issues that needed to be addressed under Article 10(7) of the North American Agreement on Environmental Cooperation. The Parties also identified a list of terms that needed to be defined" (Marc Paquin, 1996: personal communication). Thus, the emphasis at the second consultation meetings appears to have been related to the need to prioritize issues and clarify terminology before proceeding with negotiations regarding substantive issues. Subsequent meetings on April 18-19, 1996, began to address substantive issues regarding the transboundary EIA recommendation process. Several background/discussion papers were prepared prior to these meetings (Robert Connelly, 1996; personal communication). These meetings included additional observers from state and tribal governments in the United States.105 The focus of these meetings was on the notification aspect of transboundary EIA. Of the principal substantive issues, notification issues had been advanced the farthest. In spite of being close to an agreement on this, however, additional discussions were needed to reach full agreement (Robert Connelly, 1996: personal communication). After additional consultation, the group of experts presented their recommendations to the Council on June 12, 1997. Based on these recommendations, the Council decided to have the parties complete a legally binding TEIA Agreement by April 15, 1998. The recommendations in the form of a draft agreement were then made available to the public on October 21, 1997. Consultations continued with a major expert group workshop in Tucson, Arizona on December 12, 1997. The substance of that meeting was broader in scope, with more than 60 participants including numerous representatives from a wide range of subnational actors. It was thus the "...first continent-wide meeting bringing together officials from national and sub-national jurisdictions in Canada, Mexico, and the United States to discuss the issue of (1) Pollution Does Not Respect Borders; (2) Good Neighborliness; (3) Respect for National and Subnational Processes; (4) Cost Effectiveness and Efficiency; (5) Complementarity; and (6) Transboundary Public Participation. See Appendix 1 for full text. 1 0 5 According to Paul Orbuch (1996: personal communication) of the Western Governors' Association (WGA), the "WGA has been actively providing input into the process the CEC is administering to develop TEIA than 113 transboundary environmental impact assessment (TEIA)" (CEC Meeting Report, 1998). Additional impetus for concluding a binding TEIA Agreement was provided through the recommendations made following a four-year review of the NAAEC by an independent review committee in June of 1998.106 However, the scheduling of any subsequent consultation meetings or other negotiations have not been made public. After over a year in which no additional information was available to non-participants in the TEIA negotiations, the CEC issued a press release on February 22, 1999, in which the CEC's Interim Executive Director, Janine Ferretti, stated that the CEC would "continue to support the [TEIA] negotiations, and look forward to the conclusion of an agreement in the near future." No other information was available to the public regarding specific revisions to the Draft TEIA Agreement, or the actual time frame that was implied by "in the near future." However, this announcement was made in the context of a recent U.S.-Mexican summit in Merida, Mexico at which U.S. President Bill Clinton, and Mexican President Ernesto Zedillo noted that their governments were "approaching agreement, along with Canada, on a trilateral agreement to ensure the cross-border effects of many proposed projects and activities can be included in our respective environmental impact assessments, and that bordering states and their citizens will be able to participate in the assessment process" (quoted in CEC press release, February 22, 1999).107 The acknowledgement of the TEIA Agreement by both Presidents in the context of a bilateral summit constitutes a significant elevation of the salience of North American transboundary EIA issues. Although it still remains to be seen what form the final TEIA Agreement will take (as well as what is implied by "in the near future"), this ostensibly high emphasizing competance and mission orientation, such appointees are likely to be politically oriented and able to influence the work of junior staff (Mumme, 1996, personal communication). 1 0 6 According to the Independent Review Committee's (IRC) 1998 report: "The IRC has also noted the difficulties being experienced in completing the work on Transboundary Environmental Impact Assessment, pursuant to Article 10(7) of NAAEC. The commitment of the Council to conclude a binding international agreement based on the initial work of the CEC on this issue was reflected in the Council resolution that initiated specific negotiations for this purpose. The IRC believes that it is important to conclude such an agreement, with the aim of identifying and eliminating or mitigating the transboundary effects of planned projects, as the circumstances require. The IRC believes that the passing of the initial deadline for completing these negotiations should be cause to redouble the efforts being made, with the support of outside assistance if the Council believes this could be useful" [footnote omitted]. 1 0 7 These comments were also supported by statements at a recent bilateral summit between Canada and Mexico in Ottawa, at which the respective Ministers of the Environment "reiterated their commitment to finalize negotiations on transboundary environmental impact assessment" within the context of the NAAEC (CEC press release, February 22, 1999). 114 level of interest in concluding the TEIA Agreement suggests that the CEC is now seriously committed to following through on their mandate to complete a binding TEIA agreement as soon as they can. Hopefully, this heightened visibility of the TEIA Agreement also bodes well for the effectiveness both of its final provisions and for the manner in which it is ultimately implemented. 4.6 DRAFT NORTH AMERICAN AGREEMENT ON TRANSBOUNDARY EIA Pursuant to the mandate of Article 10(7) of the NAAEC, the expert working group for transboundary EIA presented their recommendations to the CEC Council on June 12, 1997. Based on these recommendations, the Council decided to develop a legally binding agreement on transboundary EIA by April 15, 1998.108 Toward that end, the expert working group issued a Draft North American Agreement on Transboundary EIA (hereinafter referred to Draft TEIA Agreement) on October 21, 1997. This section summarizes the structure and content of the Draft TEIA Agreement. 4.6.1 Preamble The preamble for the Draft TEIA Agreement is similar to preambular language in related international environmental agreements such as the Espoo Convention.109 While the tone of the statements in the preamble is often hortatory, it nonetheless explicitly links the Draft TEIA Agreement to key principles of international environmental law (e.g., environmental sovereignty, the precautionary principle). These references may be somewhat perfunctory, but they nest the provisions of the Draft TEIA Agreement within the broader context of the NAAEC's ostensibly ambitious purpose and its relationship to international environmental norms. 1 0 8 This deadline has since passed. According to Marc Paquin of the CEC Secretariat (1998, personal communication), additional negotiations will probably begin in September 1998. As with the deadlines that have preceded this one, it does not appear that there are any significant consequences for failing to meet them. 1 0 9 In fact, several statements in the Draft TEIA Agreement Preamble have been copied directly from the Espoo Convention preamble with minor word changes. 115 4.6.2 Transboundary EIA Provisions T h e g e n e r a l t r a n s b o u n d a r y E I A p r o v i s i o n s are c o m p r i s e d o f t w e n t y p o i n t s that c o v e r i s sues r a n g i n g from m a t t e r s o f c l a r i f i c a t i o n s u c h as "de f in i t i ons" t o m o r e subs tant ive i s sues ( e .g . , m i t i g a t i o n , d i s p u t e r e s o l u t i o n ) . M a t t e r s o f E I A p r o c e d u r e ( e . g . , n o t i f i c a t i o n , i n f o r m a t i o n e x c h a n g e ) h a v e b e e n a r t i c u l a t e d i n the greates t de ta i l , w h e r e a s the subs tant ive i s sues m o r e o f t e n i n c l u d e the p r o v i s o " p r o v i s i o n s t o b e e l a b o r a t e d . " T h e s e g e n e r a l p r o v i s i o n s a p p e a r t o b e the a r e a that w i l l b e the f o c u s o n g o i n g n e g o t i a t i o n . M u c h o f the s u b s t a n t i v e de ta i l is o u t l i n e d i n g r e a t e r deta i l i n the f o u r a p p e n d i c e s . T h e s e are e a c h d i s c u s s e d i n t u r n b e l o w . 4.6.3 List of Projects Requiring Notification A p r o j e c t list is p r e s e n t e d i n A p p e n d i x I as a s c r e e n i n g m e c h a n i s m i n o r d e r t o de f ine in s tances w h e r e a g i v e n t y p e o f p r o p o s a l is r e q u i r e d r e q u i r e s that the state o f o r i g i n f o l l o w the t r a n s b o u n d a r y n o t i f i c a t i o n p r o t o c o l . S u c h l ists are o f t e n u s e d i n E I A s y s t e m s t o m i n i m i z e the t i m e n e e d e d t o e s tab l i sh the a p p r o p r i a t e l e v e l o f e n v i r o n m e n t a l r e v i e w r e q u i r e d . T h e list o f ac t iv i t i e s is v e r y s i m i l a r t o the list i n the E s p o o C o n v e n t i o n f o r ins tance . T h e m o s t n o t a b l e l i m i t a t i o n o f the D r a f t T E I A A g r e e m e n t ' s p r o j e c t list is the a b s e n c e o f a n y t h r e s h o l d f o r the l i s ted act iv i t ies . P r e s u m a b l y s u c h t h r e s h o l d s w i t h i n e a c h o f the p r o j e c t t y p e s w i l l b e f u r t h e r a r t i c u l a t e d i n the final v e r s i o n o f the T E I A A g r e e m e n t . 4.6.4 Content of Transboundary Notifications T h e n o t i f i c a t i o n r e q u i r e m e n t s o u t l i n e d i n A p p e n d i x II are a k e y c o m p o n e n t o f the p r o p o s e d t r a n s b o u n d a r y E I A r e g i m e . T h e p r i n c i p a l f ea tures o f the t r a n s b o u n d a r y n o t i f i c a t i o n p r o c e s s are its r e q u i r e m e n t s f o r c o m p l e t e s h a r i n g o f i n f o r m a t i o n r e g a r d i n g the c h a r a c t e r i s t i c s o f a p r o p o s a l a n d its p r o p o n e n t , a n d the p r o c e d u r a l r e q u i r e m e n t s f o r p a r t i c i p a t i o n b y p o t e n t i a l l y a f f ec ted t r a n s b o u n d a r y part ies . T h e n o t i f i c a t i o n s t a n d a r d s p r o v i d e a c l e a r l y s ta ted m e c h a n i s m f o r e n s u r i n g that t r a n s b o u n d a r y part i e s are g i v e n suff ic ient o p p o r t u n i t i e s t o p a r t i c i p a t e i n the c o n s i d e r a t i o n o f p r o p o s a l s w i t h p o t e n t i a l l y s ign i f i cant t r a n s b o u n d a r y i m p a c t s , a n d t o p a r t i c i p a t e fu l ly i n the p r o c e s s i f a fu l l - s ca l e t r a n s b o u n d a r y E I A p r o c e s s is n e c e s s a r y . 116 4.6.5 Transboundary Impact Significance Evaluation Significance evaluation (Appendix III) is perhaps the most substantive issue to be addressed in detail. This section outlines 'Tactors for determining significant adverse transboundary impacts. These factors are organized under the two principles of "context" and "intensity." The list does not provide explicit thresholds for the specific factors. The factors are qualitative and do not represent a prescriptive approach to significance evaluation. Rather, the party of origin is given a fairly comprehensive list of factors for "consideration" in determining the significance of potentially adverse transboundary impacts. The actual determination of significance is left to the discretion of the state of origin. However, the list of factors is qualified in that "the use and nature of this list will be the subject of further development," allowing for the incorporation of greater specificity based on future negotiations. The focus on context and intensity appear to drawn from the CEQ's NEPA Regulations.110 As with NEPA implementation, it would seem the ultimate interpretation of "significance" will be left to the circumstances of individual cases. In the case of NEPA implementation, this has led to a history of contested interpretations which have been resolved judicially (Rodgers, 1994). It is not clear why this NEPA model was used so exclusively as the basis for significance determination. Although one can speculate that it provides a conceptual basis for significance evaluation that accommodates more ecocentric interpretations of significance while allowing the state of origin to base its decision on other factors that reflect their self-interests. 4.6.6 Basic Content of a Transboundary EIA The required content of transboundary EIA is detailed in Appendix IV. In addition to outlining requirements for general project irrformation, a variety of substantive issues are addressed. These include a full range of impact description and significance assessment considerations for the anticipated transboundary impacts. The TEIA content requirements are somewhat general, but they reference key issues such as cumulative environmental effects, sustainable development, follow-up measures, and public participation. 1 1 0 40 CFR 1508.27 (Council on Environmental Quality NEPA Regulations, 1978). 117 4.7 C O M P A R A T I V E A N A L Y S I S O F D R A F T T E I A A G R E E M E N T A N D C O N C E P T U A L T E I A M O D E L This section provides a comparative analysis between the Draft T E I A Agreement that has been discussed above and the Conceptual T E I A M o d e l that was developed in Chapter 3. T h e comparison o f the provis ions o f the Draft T E I A Agreement w i t h the features o f the conceptual T E I A model they parallel are presented i n Table 5 be low. This table is based o n a condensed vers ion o f the complete Draft T E I A Agreement (see A p p e n d i x 2 for complete Draft) the features o f w h i c h are outl ined i n the left-hand co lumn. T h e comments i n the right-hand c o l u m n compare the specific elements o f the Draft T E I A Agreement w i t h the features o f the conceptual T E I A model developed above. T h e comparison provided i n Table 5 covers each specific aspect o f the Draft T E I A Agreement, but it does not cover each aspect o f the conceptual T E I A m o d e l that was developed in Chapter 3 Therefore, an additional table (Table 6) has also been provided i n order to cover each aspect o f the conceptual T E I A model as they pertain to the objectives hierarchy that was presented i n Table 4. T h e objectives f r o m Table 4 are l isted i n the c o l u m n o n the left. T h e elements o f the conceptual model that correspond to these objectives are presented i n the center co lumn. T h e comparison o f these elements to relevant provis ions o f the Draft T E I A Agreement are then prov ided i n a th ird co lumn. 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CS tN M — 3 0J TJ 1,1 > s W & 3 4.8 FINDINGS The comparative analysis presented in Tables 5 and 6 reveals significant similarities between the Draft TEIA Agreement and the Conceptual TEIA Model. There are also significant weaknesses regarding the substance of the Draft TEIA Agreement compared to the Conceptual TEIA Model. To some extent, these weaknesses reflect the shortcomings of EIA systems generally (as discussed in section 2.7.5). In general, the most explicit provisions of the Draft TEIA Agreement concern procedural issues (e.g., the protocol for transboundary notification). The emphasis on procedural elements such as notification reflects legitimate concerns regarding international protocol. However, this emphasis is also a manifestation of the tendency for the participants of EIA regimes to fine-tune the procedural rather than substantive aspects of EIA requirements. The political risks associated with more explicit substantive EIA provisions in a transboundary context are of potentially greater consequence (and therefore concern) to the states involved. On the other hand, key elements of the Draft TEIA Agreement offer support for more substantive implementation of a TEIA regime. These elements (e.g., the stated goals and commitments in the Preamble, and the requirements for TEIA content and significance evaluation) offer a significant opportunity to improve transboundary environmental decision-making. At the same time, efforts to address international environmental principles for sustainable development and the precautionary principle highlight the difficulties of establishing more specific conditions for incorporating these principles in the context of a TEIA regime. 4.8.1 Summary of Comparative Issues This section discusses the strengths and weaknesses of the Draft TEIA Agreement compared to the Conceptual TEIA Model, particularly with respect to the main objectives that were identified in Table 4. The main purpose of this section is to summarize and emphasize what is missing from the Draft TEIA Agreement, and identify some of the implications of those shortcomings. Effectiveness of Procedural Structure The procedural structure of the Draft TEIA Agreement compares the most favorably to the procedural structure envisioned in the conceptual TEIA model in terms of its specificity 135 and potential inclusiveness regarding the elements of notification, screening, and public participation. These issues have clearly been the focus of the CEC's TEIA negotiators thus far. However, these procedural elements only provide what might be considered the minimum basis for linking existing domestic EIA requirements with the transboundary obligations mandated by the NAAEC Article 10(7). The basic provisions for TEIA report preparation and impact significance analysis are reasonably consistent with the intent of the conceptual TEIA model, although there are various aspects that would benefit from greater specificity. Other important provisions (i.e., mitigation, dispute resolution, post-project monitoring) are not sufficiently articulated for comparison. Their inclusion is consistent with the conceptual TEIA model, but the apparent lack of emphasis on these elements is not consistent. A fundamental difference between the two TEIA regimes is the incorporation of decision analysis principles into the conceptual TEA model, whereas the Draft TEIA Agreement does not explicitly incorporate any similar provisions. This reflects the fact that most EIA regimes do not purposefully integrate decision analysis approaches in spite of their potential to improve the quality of environmental decisions. The conceptual TEIA model seeks to promote this integration, but it is not a part of the Draft TEIA Agreement. Consequently, the application of the TEIA Agreement is likely to lead to some of the same problems that have plagued conventional domestic EIA practices. As noted by Gregory et al. (1992), at the very least, these problems reflect an underlying failure to: (1) adequately explicate the basis for making value tradeoffs in a manner that reflects an equitable weighting of stakeholder interests, (2) create more attractive alternatives, and (3) clearly articulate information regarding uncertainties and other key issues for decision-makers. Facilitation of Transboundary Cooperation Promoting transboundary cooperation is often emphasized when citing the need for, and the underlying principles of, transboundary EIA. 1 1 1 However, the thrust of the Draft TEIA Agreement in this regard centers on procedural issues such as transboundary notification, general commitments to provide opportunities for transboundary stakeholder participation, 1 1 1 For instance, the principle of "Good Neighborliness" is a prominent part of the CEC's TEIA Overarching Principles. "Good neighborliness is a willingness to cooperate with neighboring States to seek to inform a potentially affected State of relevant data and a willingness to take appropriate steps to address the legitimate concerns of those potentially impacted by the activities of another State. 136 and unelaborated provisions for dispute resolution. This is substantially weaker than the level of substantive guidance that the conceptual TEIA model envisions. The conceptual TEIA model provides the basis for more effectively informed negotiation between transboundary stakeholders. As discussed in Chapter 2, achieving this objective involves a commitment to seeking better alternatives that are referenced to stronger international environmental norms and standards. This requires establishing a transboundary decision-making forum with credible procedures for building trust between parties and enhancing the information flows needed to clarify and act on relevant transboundary values and objectives. Effective dispute resolution provisions are also another vital aspect of minimizing international conflict and facilitating transboundary cooperation. The unelaborated provision for dispute resolution in the Draft TEIA Agreement suggests that this element may not be getting sufficient emphasis. However, dispute resolution is also an issue that touches on the most sensitive aspects of sovereign control over environmental decision-making, and states proceed very cautiously regarding deliberations in this area. That is also the reason the conceptual TEIA model envisions provisions for a binding dispute resolution process that will at least "push the envelope" for breaking impasses regarding sovereign disputes. At the same time it is important to emphasize that such a provision must be consistent with broader provisions of a TEIA regime regarding, inter alia, the primacy of protecting ecological systems. Support for Substantive Decision Outcomes The Draft TEIA Agreement is intended to promote environmental decision-making that addresses the potential cross-border environmental impacts of proposed projects, and contributes to achieving sustainable development. Therefore, the decision contexts in which TEIA procedures are invoked should lead to decision outcomes that further these objectives. When a TEIA regime fails to do this, its substantive value becomes questionable. The Draft TEIA Agreement is reasonably inclusive in its application to decision contexts that require TEIA, but it is generally weak in terms of providing guidelines for ensuring that there is substantive decision outcome. As discussed under the relevant sub-objectives in Table 6, although there are provisions that could lead to substantive decision outcomes, they are generally less explicit than they should be in order to increase the probability of this 137 happening. Without explicit provisions, decision-makers and TEIA administrators may feel less obliged to address the underlying decision problem and to develop creative alternatives based on a clear explication of values and judgements. These steps place additional demands on TEIA and the people responsible for its implementation. There will always be pressures to reduce the level of rigor these steps entail, unless there are explicit provisions that cannot be easily circumvented. Incorporation of Applicable Principles of International Environmental Law The Draft TEIA Agreement is substantially weaker than the conceptual TEIA model regarding the incorporation of applicable goals and principles of international environmental law and policy. The Draft TEIA Agreement's references to relevant goals and principles are generally vague, without explicit guidelines or a sense of how these issues would be more clearly articulated and weighted in the course of TEIA implementation and decision-making. There appears to be an unwillingness to make a stronger proactive commitment to relevant international environmental norms and standards, or to articulate how the TEIA regime would seek to provide more substantive guidance in this regard (e.g., through explicit linkages with corollary international environmental policy-making initiatives). Consequently, the TEIA Agreement is not likely to become an effective catalyst for advancing these important principles, particularly to the degree that it might otherwise. Nonetheless, the Draft TEIA Agreement's references to advancing sustainable development, the precautionary principle, and international environmental agreements do provide some basis for linking TEIA implementation with these broader international environmental goals and objectives. Application of Ecological Principles There are substantive provisions for applying ecological principles in the Draft TEIA Agreement. However, these provisions do not figure as prominently, nor are they as explicit, as the relevant provisions for applying ecological principles in the conceptual TEIA model. Where there are explicit provisions regarding ecological considerations in the Draft TEIA Agreement, they are not clearly referenced to how they should factor into final decision-making (i.e., the development of guidelines and methods for establishing specific impact thresholds that will apply across borders). Most of the references to applying ecological 138 principles in the Draft TEIA Agreement are listed as factors for determining significant transboundary impacts in Appendix III. In particular the "intensity factors" reference specific ecological considerations that should be assessed based on the "degree" to which they are potentially impacted. However, the relative significance of the degree to which an ecological consideration is affected (particularly in the case of cumulative effects) can only be determined with reference to a scale or plan that includes impact thresholds. But in the case of the Draft TEIA Agreement, determining significance is left to the uncertain discretion of TEIA administrators and decision-makers. The conceptual TEIA model asserts that processes for establishing explicit guidelines and methods for applying ecological principles are an integral part of an effective TEIA regime. Therefore, explicit provisions are made to minimize the loss of natural capital, and to define and respect the functional limits of biophysical systems. Furthermore, TEIA is considered an important vehicle for advancing environmental enhancement and restoration objectives, as well as promoting more rigorous international standards for the assessment of ecological impacts. The Draft TEIA Agreement does not provide meaningful guidance in this regard. It may not be reasonable to expect that the provisions of a Draft TEIA Agreement would include sufficiently detailed guidelines for applying ecological principles. However, it is reasonable to expect greater clarification regarding the basis for relating ecological considerations to the criteria that will be used by decision-makers. As suggested by the Conceptual TEIA Model, establishing such criteria in the context of transboundary environmental decision-making requires ongoing corollary environmental policy-making initiatives that are explicitly linked to TEIA implementation. Without this complementary policy framework, TEIA decision outcomes are more likely to be compromised by the inconsistent exercise of judgement regarding these issues. Promotion of Effective Stakeholder Participation The Draft TEIA Agreement's provisions for facilitating transboundary stakeholder participation are reasonably consistent with the basic expectations of the conceptual TEIA model. However, these provisions do not include the explicit requirements for addressing stakeholder concerns and values that are set forth in the conceptual TEIA model. In addition, there are no provisions for promoting or engaging ongoing collaborative relationships with 139 relevant transboundary institutions, whereas the conceptual TEIA model seeks to actively strengthen such linkages. The result will be a TEIA Agreement that provides a sound basis for meaningful stakeholder participation, but without an adequately developed approach for increasing and structuring stakeholder involvement in a way that addresses stakeholder values effectively and promotes decision outcomes that are acceptable to a broader range of affected interests. 4 . 8 . 1 . 8 Advancing Institutional Effectiveness The Draft TEIA Agreement does not address the sub-objectives associated with advancing institutional effectiveness in a sufficiently explicit and substantial manner. It is not clear exactly what the institutional context will be for the administration and oversight of the TEIA Agreement once it is approved by the three countries. The CEC Secretariat's ongoing coordination of the effort to produce a binding agreement on TEIA pursuant to Article 10(7) of the NAAEC implies that responsibility for its implementation would also become a part of the CEC Secretariat's long-term work program. However, there are not explicit provisions in this regard. Based on the questionable ongoing performance of the CEC Secretariat in completing the TEIA Agreement, it is not necessarily an obvious choice as the supranational authority for overseeing the North American TEIA regime that the conceptual TEIA model envisions. On other hand, there are no existing alternatives that have anything approaching the unique international mandate of the CEC. In any case, this issue deserves more transparent deliberation. The effectiveness of the conceptual TEIA model is contingent on the independence, competence, and adaptability of its administrative framework. Without these qualities, the implementation of a North American TEIA regime is unlikely achieve its substantive potential. This is also true for the role that the conceptual TEIA model suggests for contributing to institutional capacity building for relevant environmental policies. 4 . 8 . 1 . 9 Maintaining Efficiency and Cost-Effectiveness Maintaining efficiency and cost-effectiveness is an important objective for promoting positive feelings about the value, fairness, and credibility of a transboundary EIA regime. The Draft TEIA Agreement is generally consistent with the conceptual TEIA model in this regard, however, more specific provisions and guidelines would be useful. The conceptual TIEA 140 model is not very specific regarding this objective either. The important aspect of this issue is that it requires ongoing attention as a TEIA regime is being implemented. There will be opportunities to develop more specific guidelines and requirements in order to promote better efficiency and cost-effectiveness. Developing such provisions requires a more detailed understanding of the administrative and geographic contexts in which transboundary EIA will be applied. In addition, that effort will require an iterative process of learning from transboundary EIAs as they are conducted, and then adapting the TEIA requirements accordingly. However, the limitations regarding this level of foreknowledge at the negotiation stage can be addressed conditionally. Constraining the Exercise of Sovereignty The Draft TEIA Agreement does not provide an effective basis for influencing the exercise of sovereignty by participating governments. Several provisions are qualified by statements regarding the need to be consistent with the existing environmental policies and sovereignty of the country of origin. On the other hand, there are no explicit provisions that allude to mechanisms for superseding the environmental sovereignty of a country that is basing an environmental decision on other issues of national self-interest at the expense of causing significant transboundary impacts. Establishing mechanisms for intervening in this way are certain to be controversial. And, as with the other elements of the conceptual TEIA model, much would need to be learned and adapted as the more specific requirements are implemented. 4.9 SUMMARY The primary purpose of this chapter has been to provide a case study comparison between the Draft TEIA Agreement and the conceptual TEIA model that was developed in chapter 3. As well, it has situated this analysis within the contextual framework of what is arguably an emerging continental environmental management regime. This North American environmental management regime is exemplified by the NAAEC, which includes a broad array of multilateral environmental initiatives in addition to the TEIA Agreement that is being developed. 141 The contextual relationship between transboundary EIA effectiveness and a broader environmental management regime needs to be emphasized. As discussed in the previous sections, the effectiveness of a TEIA regime is contingent upon corollary environmental policy-making initiatives that provide a stronger basis for supporting more effective approaches to issues such as: (1) determining impact significance; (2) guidelines and methods for operationalizing sustainable development and the precautionary principle; (3) clarification of limits and thresholds for potentially affected ecosystem functions; and (4) dispute resolution and enforcement procedures. It is also important to develop these contextual policies, because (as with EIA systems generally) it is often very difficult to address these broader issues in the context of a particular TEIA application without compromising the efficiency and fairness of the process. This can lead to a backlash effect against the TEIA regime as a whole. On the other hand, it is important for TEIA processes to offer a means of raising the standards for integrating environmental considerations beyond the status quo in transboundary environmental decision contexts. However, there is apparently political reluctance (and perhaps bureaucratic inertia) to establishing a more progressive TEIA regime, because there are significant political risks and administrative uncertainties involved. The analysis presented in chapters 2 and 4 suggests that an effective North American TEIA regime could play a significant role in facilitating better transboundary environmental decision-making. Such a TEIA regime could also advance the broader objectives of a North American environmental management regime, and international environmental norms and standards. To a limited degree, the Draft TEIA does support the overall objective of maximizing the effectiveness of transboundary EIA as a basis for improving the quality of international environmental decision-making. However, the comparative analysis of the Draft TEIA Agreement (and the manner in which the TEIA Agreement has been negotiated) does not indicate that the TEIA Agreement is likely be as effective as it could be, or that it will play a significant role in the development of a continental ecosystem management regime. The case study analysis also suggests that the conceptual TEIA model would provide a more effective basis for a North American TEIA regime. Consequently, it would also help advance the broader objectives of a North American environmental management regime, as well as other relevant norms and standards of international environmental law. In lieu of incorporating all of the elements of the conceptual TEIA model (which may not be politically 142 feasible or administratively practicable at this time), the TEIA Agreement would be improved to the extent that it: (1) provided more substantive specificity, (2) adopted elements of decision analysis and informed negotiation, and (3) established explicit linkages with the international environmental policy-making initiatives discussed above. Regardless of what form the final TEIA Agreement takes with respect to the issues that have been raised through this case study analysis, it is incumbent upon the CEC and the participants in the TEIA negotiations to be more transparent than they have been to date. In this way, the transboundary dialogue underpinning the explicit provisions of the TEIA Agreement should also be part of a more inclusive ongoing dialogue (that is not confined to the terms of the NAAEC) aimed at improving transboundary environmental decision-making in North America. 143 Chapter 5 CONCLUSIONS AND RECOMMENDATIONS But it so happens that different things are reasonable and unreasonable to different persons, just as good and bad, advantageous and disadvantageous are. Epictetus, The Discourses All planning was not just likely to recoil ironically: it was almost certain to do so. Human beings were clearly not machines. They were mysterious congeries of twisted will and error, misapprehension and misrepresentation, and the expected could not be expected of them. Paul Fussell, Doing Battle 5.1 CONCLUSIONS The thesis research presented herein has developed a conceptual model for transboundary EIA that offers a basis for improving international environmental decision-making in North America. Objectives for the conceptual transboundary EIA model were drawn from an extensive review of interdisciplinary literature and unstructured interviews with a variety of knowledgeable analysts from academia and government. The conceptual model was then compared to the draft transboundary EIA agreement being negotiated pursuant to the North American Agreement on Environmental Cooperation. This section presents final conclusions based on the preceding analysis. 5.1.1 Limitations and Value of the Analysis Although the analysis has been intended to develop a conceptual model based on a comprehensive and well-structured set of objectives, the model presented here does not represent a conclusive effort in this regard. In particular, more extensive consultation with relevant parties would be required in order to more effectively define and structure the objectives hierarchy. This effort would best be pursued as a more legitimate part of the process being used by the CEC to develop the Transboundary EIA Agreement (i.e., the multilateral expert working group and workshops). Thus far, their efforts have not been sufficiently transparent. Instead, the process has consisted more of a closed discourse between senior environmental administrators from the three countries. Therefore, the results of this 144 process are less likely to reflect the full potential that could be achieved through a more inclusive process. The incomplete state of the Draft TEIA Agreement must be emphasized in the context of the comparative analysis. For many important elements (e.g., mitigation, post-project monitoring, and dispute resolution) specific provisions have yet to be elaborated. As reflected in Tables 5 and 6, this does not allow for the level of comparison that may be possible once the provisions of incomplete articles are elaborated. At this point, however, there is no basis for predicting how specific these provisions will be. Moreover, it is possible that even when the TEIA Agreement is finalized, these provisions will not be greatly improved in terms of substantive specificity. The integration of other approaches to environmental decision-making (e.g., decision analysis and negotiated informed consent) into the model for transboundary EIA offers the basis for a more expansive consideration of transboundary EIA in terms of its potential as a means of facilitating better transboundary environmental decisions. The conceptual model that was developed may be considered a preliminary attempt at such integration, and a starting point for the additional efforts that would be required in order to test and refine such an approach. Although the thesis research has not provided a conclusive analysis of transboundary EIA, it does represent a useful exploration of the theoretical and practical issues regarding the increasingly international role of EIA, and the role of transboundary EIA in promoting better international environmental decision-making in the North American context. 5.1.2 Environmental Policy Implications of the NAAEC The NAAEC has established an important precedent for promoting international environmental cooperation in North America. Through its ambitious work programs, the CEC has set forth a variety of useful initiatives that advance trilateral approaches to continental environmental management. These efforts represent important steps towards the kind of broader North American environmental management regime within which any transboundary EIA regime will need to be situated in order to be effective. However, with or without the continued impetus of the CEC, the efforts toward the realization of a more effective North American environmental regime should be continued. As Szekely (1992, p. 564) argues, "a 145 free trade agreement is not the place to deal with the environmental future of North America and, thus, the challenge [of addressing North American environmental concerns effectively] will remain basically open." The degree to which the NAAEC is perceived as a successful approach to advancing sustainable development has important implications. Other countries are interested in accession to NAFTA (e.g., Chile), and the preliminary process of expanding NAFTA into a hemispheric free trade agreement has been initiated. Similarly, the formation of other regional free trade blocs such as APEC are likely to look to the NAAEC as a potential model for integrating environmental considerations. The NAAEC provides an opportunity for a modest relinquishment of sovereignty for the sake of continental environmental health. The experience that will result from the implementation of the NAAEC will also provide an important "test case," particularly in terms of the "North-South agenda."112 The TEIA Agreement will be an important element in this evolving institution for multilateral environmental governance. Not the Greening of Free Trade While the NAAEC has been advanced as a model for "greening" free trade, this research does not suggest that this environmental side agreement will sufficiently ameliorate the negative consequences of globalization and trade liberalization. The debate concerning the intrinsic desirability or undesirability of free trade is predicated on an intractable debate about the relationship of humankind to the biosphere that is underlain by ethical and philosophical positions, crucial interpretations of the available evidence regarding the Earth's biophysical systems, and explanatory theories for the interrelationship of political and economic systems. Nevertheless, without attempting to reconcile this debate, it is reasonable to suggest that the internationalization of EIA will continue to be applied as a partial condition of trade 1 1 2 John Wirth, CEC Joint Public Advisory Committee member (United States). Comments presented at the "NAFTA-Environment Workshop," sponsored by the University of California San Diego, Center for Latin American and Iberian Studies. April 4, 1995. "[T]he North [industrialized countries] and South [developing countries] hold opposing view over an appropriate definition of national sovereignty in this [environmental] context and over state responsibility for the conservation of these [ecological] resources" (Bragdon, 1992, p. 388). Because developing countries often feel industrialized countries are attempting to rationalize interference with the internal affairs of developing countries by invoking environmental concerns, "it appears that the tension between nationalism and internationalism is seeing the North-South gap replace the East-West struggle in international relations" (p. 387). Also see Sanderson (1994). 146 liberalization policies. The distinction this analysis suggests is that an effective transboundary EIA regime cannot substantially offset the systemic impacts of international trade liberalization; it's influence will be limited to the range of decision contexts in which it applied. To suggest that EIA can substantially reduce the impacts of trade liberalization, particularly in the short-term when institutional capacities are limited, only serves to accelerate the negative consequences of globalization. 5.1.3 Transboundary EIA Policy Implications Evaluations of the TEIA Agreement when it is concluded should be tempered by the understanding that it is the starting point for one element in a larger process of international environmental cooperation that should be amended and revised over time. This continues to be the case with many existing EIA (including transboundary) regimes. Therefore, attention should also be given to facilitating an ongoing process of multilateral interaction for continued adaptation and upward harmonization of transboundary EIA regime development and implementation. The potential effectiveness of transboundary EIA provisions through the adoption of NACEC Article 10(7) requirements must also be considered in terms of its indirect influence on domestic EIA policies and implementation at national and subnational levels of governance within North America. The development of more rigorous EIA standards (i.e., wherein the scope of consideration is expanded to an international level) will encounter resistance due to the perceived short-term costs of implementation. Nonetheless, pushing the standards for the consideration of potential environmental impacts at an international level may force the recognition of the relative inadequacies of environmental decision-making at regional and local levels of governance. The administration of EIA policies within North America is an important dimension of TEIA implementation effectiveness. The administrative apparatus responsible for the direct application of EIA in each jurisdiction exercises significant (although often subtle) discretion in terms of procedural and substantive rigor. The reluctance of bureaucracies to apply EIA as aggressively as possible is based on issues which have been well documented by other policy analysts (e.g., Taylor, 1984). 147 5.1.4 Addressing the Political Context The model transboundary EIA regime proposed here provides a generalized form that an effective transboundary EIA process might take. However, the means by which such a process would be put in place is contingent upon policymaking at the national level in several different countries. Domestic politics are thus a crucial determinant of whether or not such an international environmental policy initiative can be realized. An in-depth discussion about the nature of that issue is beyond the scope of this analysis. However, this research strongly suggests that the effectiveness of transboundary EIA regimes is contingent upon the level of political will for their implementation. However, it is difficult to assess the level of political commitment to the development of a more substantive transboundary EIA regime in North America. The failure of the parties involved to negotiate a complete TEIA Agreement after several years suggests that the relative priority of developing a North American transboundary EIA regime is not as high as it should be. 5.2 RECOMMENDATIONS FOR FURTHER RESEARCH AND POLICY INITIATIVES The research presented in this thesis forms the basis for a number of recommendations aimed at advancing an effective transboundary EIA regime for North America. Some of the possibilities in this regard are presented below. • Additional research should be directed towards establishing a stronger theoretical and practical basis for informing the practice of transboundary EIA in North America. In addition to the procedural aspects of transboundary EIA, this research should emphasize substantive aspects, and concentrate on empirical analysis of transboundary EIA implementation. • The internationalization of EIA demands a greater effort to develop upwardly harmonized interpretations of "significance." (i.e. greater substantive specificity in the terms of international environmental agreements). Continued research aimed at developing internationally credible bases of support for this area would be helpful. 148 Political support for the Commission for Environmental Cooperation should strengthened, because it represents the most promising effort to-date to establish a supranational authority for promoting more effective transboundary EIA across North America. To the extent that interest groups are reluctant to support any mechanism defined by a free trade policy, efforts should be made to advance practicable alternatives. Transboundary EIA provides a unique link between global environmental policies and decision-making at lower level; therefore, it should be applied purposefully and adaptively in order to advance international environmental goals in local contexts. Substantive measures should be developed cooperatively in order to advance applicable international environmental principles in the context of transboundary EIA, such as Principle 15 of the Rio Declaration regarding the precautionary principle. The role of subnational/regional institutional mechanisms for transboundary environmental cooperation need to be explored based on the increasing devolution of federal environmental protection responsibilities and the internationalization of environmental governance at the subnational level. As Alper (1997, 380) suggests: "The challenge for subnational officials will be to make existing regional institutions more effective." The role of transboundary EIA in advancing the effectiveness of such regional environmental institutions is therefore an issue that deserves more attention. More empirical case study analysis needs to be conducted on the application of existing transboundary EIA systems in specific decision contexts. Ideally, this would be done comparatively in order to provide a basis for clarifying how the interrelationship between different procedural and contextual variables determine the relative effectiveness of transboundary EIA. Similar analyses should also be undertaken for the CEC's TEIA Agreement as soon as there are opportunities to apply the after it has been approved. 149 5.2.1 Strengthening the Role for Planners As Jordan (1998) notes in regard to multilateral environmental governance in the context of the European Union, an implementation gap exists between the stated objectives of international environmental mandates and the degree to which such mandates are actually put into practice by member nations. This underscores the role planners should embrace as the professional discipline charged with translating knowledge into action (Friedmann, 1987). The value of international environmental agreements (including transboundary EIA regimes) is minimal in the absence of effective institutional frameworks and people committed to implementing their substantive objectives. In other words, human resources are a critical aspect of improving the effectiveness of transboundary environmental decision-making. Environmental planners have a professional obligation to address the challenges of globalization. For instance, Futrell (1998, p. 56) discusses his organization's efforts to build " international network of environmental professionals who share our style of non-ideological pragmatism and problem solving." This hints at a transboundary planning philosophy based on an international environmental ethic and standards for professional integrity that supersede considerations of national self-interest. Although it is difficult to analyze, the conflict of interest and "flexibility" of ethics associated with the implementation of existing environmental policy and EIA regimes requires scrutiny. The weakness of existing EIA regimes in this regard suggests that EIA must be radicalized to some extent if it is expected to change the behavior of states regarding their weighting of environmental considerations in transboundary decision contexts.llj At the very least, environmental planners and analysts should be open to socio-political windows of opportunity wherein they can act as "policy entrepreneurs" to advance improvements to transboundary environmental decision-making that challenges the status quo.1 1 4 EIA analysts and practitioners should participate as directly as possible in both the formation and implementation of transboundary environmental regimes in contexts other than the NAAEC as well. These include a variety of existing subnational transboundary agreements 1 1 3 Radicalization is used here to mean a movement toward "radical planning" which draws on "organized citizen power to promote projects pointing toward social transformation" (Friedmann, 1987, p. 34), with the social transformation being a reorientation of social priorities around a much higher standard of environmental sustainability. 1 1 4 This metaphor is taken from Fiorino's (1995) discussion regarding organizational models of environmental policymaking. 150 (e.g, the British Columbia/Washington State Environmental Cooperation Agreement), other issue-specific international agreements, and various transboundary programs of non-governmental organizations.115 There are also myriad environmental decision-making processes throughout North America that may contribute to more subtle or cumulative transboundary impacts. As a matter of broader policy, substantive policies should be developed to encourage the consideration of indirect transboundary impacts in non-border areas as well. 1 1 6 At the same time, the focus should not be exclusively on a bureaucratic perspective. Transboundary environmental agreements are likely to benefit from actively encouraging public participation in the decision-making process, which may reduce internal political friction and improved enforceability (Milich and Varady, 1998). 5.3 ECOLOGY, SOVEREIGNTY, AND ENVIRONMENTAL DECISION-MAKING Generally speaking, every human-made boundary on the earth's an attempt to keep inimical forces at bay. Yi-Fu Tuan, Landscapes of Fear The fundamental premise of this analysis has been the increasingly urgent need for nations to take appropriate measures to reconcile the contradictions between sovereignty and ecology. The increasingly transboundary character of environmental impacts demands that nation states give greater consideration to policies that require the relinquishment of sovereignty in order to promote ecological well being. International environmental agreements, particularly transboundary EIA regimes, were discussed as potential means of advancing more effective international environmental cooperation and governance. These emerging frameworks offer promising opportunities for improving the effectiveness of transboundary EIA. EIA analysts and practitioners would do well to work more purposefully toward advancing the theory and practice of EIA in this emerging context. However, working in this context involves issues of environmental realpolitik for which the role of transboundary EIA needs to be more clearly articulated and supported. This demands a transdisciplinary 1 1 5 As Alper (1997, p. 359-61) notes: "The nature of transboundary environmental activities has changed in recent years...The tendency has been for subnational actors to take more proactive stances on international environental issues, often in cooperation with transnational environmental groups and networks interested in influencing corporate as well as political behavior.... "issues are increasingly defined and processed by a complex mix of local, regional, and international agendas." 151 approach based on the integration of international relations theory, international environmental law, and the various disciplines that are typically represented in the study of both EIA and environmental decision-making more generally (e.g., planning, policy analysis and political science). In a sense, these disciplines have boundaries defined by intellectual sovereignty that need to be overcome as well.117 Improving the effectiveness of transboundary EIA in the context of international environmental agreements will likely proceed in an incremental and adaptive manner. Provided that sufficient political will can be garnered, the goal of improving the effectiveness of environmental impact assessment and international environmental cooperation can be achieved. Transboundary EIA is not necessarily the most important means of advancing the broader policy objectives that will need to be achieved in order to protect the ecological integrity of North America. Success will also depend on the effective implementation of international environmental agreements for managing specific economic sectors, environmental media, and regional ecosystems. Nonetheless, this analysis has shown that transboundary EIA processes have significant potential as a means of promoting these broader policy objectives. If properly implemented, transboundary EIA provides an iterative vehicle for learning from and adapting the methods and policies that must be improved in order to facilitate more effective environmental decision-making in transboundary contexts. 1 1 6 For example, Rees (1995) suggests a "no net loss of natural capital" approach for reconciling localized impact assessment with global environmental change. 1 1 7 As Meine (1998, p. 334) concludes with respect to what is needed, inter alia, in order to strengthen transboundary stewardship: "Greater opportunities in basic education and professional training to cross disciplinary lines. As we aspire to better cross-boundary stewardship on the landscape, we must support efforts to think through boundaries separating the domains of knowledge." 152 BIBLIOGRAPHY Abouchar, J. 1996. 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Colorado Journal of International Environmental Law and Policy. Vol. 8, No. 2: 323-57. 172 APPENDIX 1 North American Commission for Environmental Cooperation Overarching Principles for Transboundary EIA Commission for Environmental Cooperation Council Distr. General TEIA/96.02.05/C/1 October 13, 1995 Original: English, French, Spanish TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT OVERARCHING PRINCIPLES These principles are intended to inform and guide the Council as it develops more specific recommendations and considerations pursuant to Article 10(7) of the North American Agreement on Environmental Cooperation. 1. . POLLUTION DOES NOT RESPECT BORDERS • As part of the same environment, States need to work together to achieve national objectives concerning conservation, environmental protection and environmental enhancement. • Recognizing that environmental effects extend across borders, States should promote communication, cooperation and information sharing on projects and developments within their jurisdictions. • A State which is likely to be adversely affected by an activity taking place in another State is best equipped to determine which environmental impacts are of concern to itself and its citizens and should make these known to that State. 2. GOOD NEIGHBORLINESS M • Good neighborliness embraces Principle 2 of the 1992 Rio Declaration. • Good neighborliness embraces Article 10(7) of the North American Agreement on Environmental Cooperation. • Good neighborliness is a willingness to cooperate with neighboring States to seek to inform a potentially affected State of relevant data and a willingness to take appropriate steps to address the legitimate concerns of those potentially impacted by the activities in another State. • Good neighborliness provides a potentially affected State with the opportunity to contribute comments and information to the environmental assessment process. H:\A\TEIA\PRJNCIPL\PRTIAENG.DOC TEIA/96.02.05/C/1 Page 2 R E S P E C T F O R N A T I O N A L A N D S U B N A T I O N A L PROCESSES • Recognizing the unique circumstances giving rise to environmental impact assessment laws and practices, any new procedures or mechanisms proposed should respect the integrity of national and subnational processes and instruments. 4. C O S T E F F E C T I V E N E S S AND E F F I C I E N C Y • Any procedure or mechanism developed should be efficient and cost effecti maximizing wherever possible the utilization of existing processes, structures mechanisms. C O M P L E M E N T A R I T Y • Any procedure or mechanism developed should complement or build on successful procedures or mechanisms in place at various levels of government. 6. P U B L I C P A R T I C I P A T I O N Consistent with national and subnational regimes, any mechanism or procedure developed should ensure that the public has adequate information and the opportunity to participate in a meaningful manner in such mechanisms or procedures. /7=r APPENDIX 2 North American Commission for Environmental Cooperation Draft Transboundary EIA Agreement October 21,1997 Commission for Environmental Cooperation Secretariat Distr. GENERAL TEIA/97.02.04 21 October 1997 Original: English EXPERT GROUP RECOMMENDATIONS1 1 8 In 1993 Canada, Mexico and the United States signed the North American Agreement on Environmental Cooperation (NAAEC), a "side agreement" associated with the North American Free Trade Agreement. The NAAEC promotes strengthened cooperation between the three countries regarding the conservation, protection and enhancement of the environment. Article 10(7) of the NAAEC sets out a requirement for the Council (which consists of the three countries' Ministers of the Environment) to develop, within three years of signature, recommendations for an agreement on the assessment of environmental impacts of proposed projects likely to cause significant adverse transboundary effects. The objectives of the proposed transboundary environmental impact assessment agreement would be to provide decisionmakers with timely information on the transboundary environmental consequences of proposed projects to ensure that decisions on such projects take into account such consequences and to provide a mechanism for potentially affected people and governments to participate in the process leading to a decision on the project. On June 12, 1997, the Council considered recommendations of a group of experts for an agreement on transboundary environmental impact assessment. As a result, the Council decided that the parties would complete a legally binding agreement by April 15, 1998. The Council also agreed that the work done by the group of experts be distributed publicly this fall. The accompanying document entitled "Draft North American Agreement on Transboundary Environmental Impact Assessment" represents the work done by the group of experts. These are recommendations made to the governments of Canada, Mexico and the United States by the group of experts and do not necessarily reflect the final views of these governments. During the coming months government representatives from all three countries will hold negotiations to develop a legally binding agreement on transboundary environmental impact assessment. This explanatory page was prepared by the Governments of Canada and of the United States of America. 177 Commission for Environmental Cooperation Secretariat Distr. RESTRICTED/CONFIDENTIAL* TEIA/96.02.05/S/14/Rev.l5 7 May 1997 Original: English North-American Inter-governmental Group on Transboundary Environmental Impact Assessment Draft North American Agreement on Transboundary Environmental Impact Assessment Table of Contents Preamble 1. Definitions 2. Trigger for Notification 3. When to Notify 4. By Whom and to Whom 5. How to Notify 6. Language of Notifications and other Communications 7. Content of Notification of Proposed Project 8. Request for, and Exchange of, Information 9. Response from the Potentially Affected Party 10. Trigger for Assessment 11. Conducting the Assessment 12. Public Participation 13. Transmission of Assessment Document and Decision Made Thereto 14. Mitigation 15. Post-Project Monitoring 16. Exemption to this Document 17. Relation to Existing Bilateral Mechanisms/Obligations 18. On-Going Consultations 19. Dispute Resolution 20. General Provisions Appendix I - List of Projects Requiring Notification Appendix II - Content of Notifications Appendix III - Factors for Determining Significant Adverse Transboundary Impacts Appendix IV - Basic Content of a Transboundary Environmental Impact Assessment 178 PREAMBLE BUILDING ON the North American Agreement on Environmental Cooperation, and more specifically its Article 10(7); ALSO BUILDING ON the Recommendation on Transboundary Environmental Impact Assessment in North America and the Transboundary Environmental Impact Assessment Overarching Principles adopted by the Council of the Commission for Environmental Cooperation; REAFFIRMING the Stockholm Declaration on the Human Environment of 1972 and the Rio Declaration on Environment and Development of 1992; RECOGNIZING the interrelationship of their environments; ALSO RECOGNIZING the sovereign right of States to exploit their own resources pursuant to their own environmental and development policies and their responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction; RECALLING their tradition of environmental cooperation and expressing their desire to respect and build on international environmental agreements and existing national and sub-national laws, policies, processes and instruments in order to promote cooperation between them; CONVINCED of the importance of environmental impact assessment in general, and more specifically of transboundary environmental impact assessment, in achieving sustainable development; RECOGNIZING that States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental impact and shall consult with those States at an early stage and in good faith; EMPHASIZING the need and importance of developing anticipatory policies and of preventing, mitigating and monitoring significant adverse environmental impact in general and more specifically in a transboundary context, in accordance with the precautionary principle; CONSCIOUS of the need to give explicit consideration to environmental factors at an early stage in the decision-making process by applying environmental impact assessment, at all appropriate administrative levels, as a necessary tool to improve the quality of information presented to decision makers so that environmentally sound decisions can be made paying careful attention to minimizing significant adverse environmental impact, particularly in a transboundary context, thereby limiting potential conflicts between the Parties; EMPHASIZING the importance of public participation in conserving, protecting and enhancing the environment, particularly in the context of domestic and transboundary environmental impact assessment; COMMENDING the ongoing activities of the Parties to ensure that, through their national legal and administrative provisions and their national policies, environmental impact assessment is carried out;; 179 1. DEFINITIONS Competent Government Authority means that or those federal and non-federal authorities which the Parties designate as responsible for performing the duties arising out of this Agreement; Environmental Impact means any change caused by a proposed project on human health and safety, flora, fauna, soil, air, water, climate, the current use of lands and resources for traditional purposes by indigenous people or, physical structures, sites or artifacts that are of historical, archaeological, paleontological or architectural significance or, the interaction among these factors; it also includes impacts on cultural heritage or socio-economic conditions resulting from changes to those factors. Impact includes direct, indirect and cumulative impacts; Mitigation Measures - defintion to be elaborated Party of Origin means the Party within whose territory a proposed project is intended to be carried out; (further refinement required) Post-Project Monitoring - definition to be elaborated Potentially Affected Party means any Party or Parties whose territory could potentially be adversely affected by a proposed project located within the territory of another Party (further refinement required); Proposed Project - definition to be elaborated Transboundary Environmental Impact means any environmental impact, either permanent or temporary in the territory of a Party caused by a proposed project, the physical origin of which is situated wholly or in part in the territory of another Party, and may include, inter alia, environmental impact on migratory species and marine resources and environmental impacts transmitted through shared water sheds and air sheds; (definition to be refined) Transboundary Environmental Impact Assessment means a domestic assessment procedure that is used to evaluate the transboundary environmental impacts of a proposed project; 2. TRIGGER FOR NOTIFICATION 2.1 In accordance with Articles 3 to 7, the Party of Origin shall notify any Potentially Affected Party of proposed projects: a) located within 100 km of the Canada - United States of America or United Mexican States -United States of America borders and in a category of projects listed in Appendix I; or b) determined by the competent government authority to have the potential to cause significant adverse transboundary environmental impacts taking into consideration the factors set forth in [Appendix III], without regard to the distance of the project from the border; 180 3. WHEN TO NOTIFY 3.1 The Party of Origin shall notify any Potentially Affected Party, as early as possible, but no later than when informing its own public about a proposed project and in all cases the notification should be given early enough to provide the Potentially Affected Party and its public a meaningful opportunity to have their comments considered and, in cases where a transboundary environmental impact assessment is conducted, to participate in that assessment process. 4. BY WHOM AND TO WHOM 4.1 The competent government authority of the Party of Origin shall notify the designated federal official of the Potentially Affected Party and may notify, as appropriate, designated non-federal officials of the Potentially Affected Party. 5. HOW TO NOTIFY 5.1 All official notifications shall be transmitted by a rapid and reliable means that also provides a record of notification. 6. LANGUAGE OF NOTIFICATIONS AND OTHER COMMUNICATIONS 6.1 Notifications and other communications pursuant to this Agreement shall be sent in at least one of the official language(s) of the Party of Origin. 6.2 The Party of Origin is encouraged to also transmit a translation of the notification in the language of the Potentially Affected Party where practicable. 7. CONTENT OF NOTIFICATION OF PROPOSED PROJECT 7.1 Notification of a proposed project under Article 2 above shall contain sufficient information to apprise a Potentially Affected Party of the nature of the proposed project. The notification should include, as available, the elements outlined in Part I Appendix II. 7.2 In its notification of a proposed project, the Party of Origin shall stipulate reasonable time frames within which the Potentially Affected Party should respond to the notification; 7.3 If at the time of notification of a proposed project, the Party of Origin has decided to conduct a transboundary environmental impact assessment, the notification should include, when available, the information contained in Parts I and II of Appendix II. 181 8. REQUEST FOR, AND EXCHANGE OF, INFORMATION 8.1 When a Potentially Affected Party has reasonable concerns that its environment would be significantly adversely affected by a proposed project, and when no notification has occurred in accordance with Article 2, the Potentially Affected Party may request information, or when notification has occurred, additional information, from the Party of Origin. 8.2 When notification has occurred, any request for additional information shall be made within an appropriate time frame based on the designated time frames indicated in the notification and should include a justification as to why the additional information is needed. 8.3 The Party of Origin shall to the extent possible, promptly respond to such a request, and where a transboundary environmental impact assessment takes place, the response should, if possible, be provided in time to allow the Potentially Affected Party to participate meaningfully in such an assessment. 8.4 If the Party of Origin becomes aware of new and material information relating to the potential for significant adverse transboundary environmental impacts of the proposed project, it shall promptly transmit such information to the Potentially Affected Party. 9. RESPONSE FROM THE POTENTIALLY AFFECTED PARTY 9.1 In its response to the notification of a proposed project, the Potentially Affected Party should indicate whether it intends to provide comments, or to participate in a transboundary environmental impact assessment if one is undertaken. 9.2 If the Potentially Affected Party indicates that it does not intend to provide comments, or to participate in a transboundary environmental impact assessment, or if it does not respond within the designated time frames, the Party of Origin does not have any further obligations for that particular project pursuant to this Agreement unless at a later date the Potentially Affected Party becomes aware of new information which leads it to reasonably believe that it is likely to face significant adverse transboundary environmental impacts from the proposed project. In such a case, the Potentially Affected Party shall notify the Party of Origin and provide an explanation of why the new information makes it believe it is likely to face significant adverse transboundary environmental impacts from the proposed project. 10. TRIGGER FOR ASSESSMENT 10.1 If a proposed project is likely to cause significant adverse transboundary environmental impacts on the environment of another Party, the Party of Origin shall: a) ensure that a transboundary environmental impact assessment is undertaken, which should include, when available, the elements outlined in Appendix IV; b) notify the Potentially Affected Party of the transboundary environmental impact assessment, including, when available, the elements outlined in Part II of Appendix II; 182 The determination whether a proposed project is likely to cause significant adverse transboundary environmental impacts on the environment of another Party shall be made by the Party of Origin, taking into account the elements outlined in Appendix III. 10.2 In its notification, the Party of Origin shall stipulate reasonable time frames within which the Potentially Affected Party should respond to the notification; 10.3 If no Potentially Affected Party responds to the notification in Article 10.1 (b) or indicates that it does not intend to provide comments or participate in a transboundary environmental impact assessment, then the Party of Origin does not have any further obligation pursuant to this Agreement; 10.4 Notwithstanding Article 10.3, the Party of Origin may proceed with the preparation of a transboundary environmental impact assessment. 11. CONDUCTING THE ASSESSMENT 11.1 The Party of Origin shall ensure that: a) any Potentially Affected Party has a meaningful opportunity to participate, and; b) relevant information furnished by any Potentially Affected Party is considered. 11.2 In ensuring that a transboundary environmental impact assessment is undertaken, the Party of Origin shall invite the close cooperation of any Potentially Affected Party. 11.3 A transboundary environmental impact assessment is not adequate or insufficient to the extent that the Party of Origin does not receive information from a Potentially Affected Party in a timely fashion. 12. PUBLIC PARTICIPATION 12.1 The Party of Origin shall allow the public of the Potentially Affected Party to: a) submit comments for the transboundary environmental impact assessment process, and; b) participate in any public hearing or meeting relating to the transboundary environmental impact assessment held by the Party of Origin within its territory; to the same extent accorded to the public of the Party of Origin, with the exception of any costs of and funding for such participation. The Party of Origin shall make best efforts to facilitate the attendance of the public of the Potentially Affected Party at such hearings or meetings, subject to its applicable laws and regulations relating to entry and exit of persons. 12.2 The Potentially Affected Party shall make available to its public relevant information received from the Party of Origin regarding a proposed project. 13. TRANSMISSION OF ASSESSMENT DOCUMENT AND DECISION MADE THERETO 183 13.1 The Party of Origin shall: a) promptly transmit to the Potentially Affected Party the written documentation of any completed transboundary environmental impact assessment prepared pursuant to Article 10, and; b) communicate to the Potentially Affected Party the decision whether to enable the proposed project to proceed; as soon as possible in accordance with its laws. 14. MITIGATION 14.1 The Party of Origin shall consider mitigation measures as early as possible during the transboundary environmental impact assessment of a proposed project. (further provisions to be elaborated) 15. POST-PROJECT MONITORING (provisions to be elaborated) 16. EXEMPTION TO THIS DOCUMENT (provisions to be elaborated) 17. RELATION TO EXISTING BILATERAL MECHANISMS/OBLIGATIONS (provisions to be elaborated) 18. ON-GOING CONSULTATIONS 18.1 Any Party may request consultation regarding any aspect of the operation of these recommendations including any determination, action or inaction taken thereunder. (provisions to be developed) 19. DISPUTE RESOLUTION (provisions to be elaborated) 20. GENERAL PROVISIONS (provisions to be elaborated) 184 APPENDIX I List of projects requiring notification (This Appendix will be developed further as the categories of projects listed are intended only to indicate the type of projects which may be considered. As well, the possibility of using specifiic lists for each Party will be explored.) A. Industrial Projects B. Mine and Mineral Processing Projects C. Energy and Energy Transmission Projects D. Water Management, Containment and Diversion Projects E. Waste Management, Treatment, Storage and Disposal, Projects F. Nuclear Related Projects G. Oil and Gas Projects H. Forestry Projects I. Transportation Projects J. Tourism and Recreational Projects K. Defense 185 APPENDIX II Content of notifications PART I Notification of proposed project A. BASIC INFORMATION 1. Information on the nature of the proposed project a) Name and type of proposed project b) Scope of proposed project (e.g. main project and any/all peripheral activities) c) Scale of proposed project (e.g. size, production capacity) d) Description of proposed project e) Purpose of proposed project 2. Information on the spatial and temporal boundaries of the proposed project a) Description of the location of the proposed project, including distance from border and description of the project site (land use, ecological and/or physical-geographic characteristics) b) Description and location of the environment potentially affected 3. Identification of proponent/developer a) Name and address of proponent/developer B. POINTS OF CONTACT 1. Points of contact and general information for the possible affected Party or Parties a) Designated federal official of the Potentially Affected Party (e.g. name, address, telephone and fax numbers) b) If known, list of designated and/or relevant non-federal officials of the Potentially Affected Party to whom notification of assessment is sent (e.g. name, address, telephone and fax numbers) 2. Points of contact for the Party of Origin a) Designated official of the Party of Origin b) Decision-making authority (i.e. competent authority) if different than designated official of the Party of Origin c) Designated contact in the Party of Origin responsible for the assessment (e.g. name, address, telephone and fax numbers) C. TIME FRAME FOR POTENTIALLY AFFECTED PARTY TO RESPOND 1. Time frame for the Potentially Affected Party to respond, provide comments, if any, and/or indicate its intention to participate in a transboundary environmental impact assessment if one is undertaken, in accordance with Article 7.2. 186 PART I I Notification of intent to conduct an assessment A. ADDITIONAL INFORMATION ON THE PROPOSED PROJECT 1. Additional information on proposed project per Part I, as appropriate, if not already included in the notification of proposed project 2. Information on the nature of the proposed project a) Description of proposed project, including relevant stages of installation, operation and decommissioning, as well technology used b) Brief information on the existing physical and biological characteristics of the environment, which may affect the nature of the transboundary impacts 3. Information on the spatial and temporal boundaries of the proposed project a) Existing land use in the location b) Rationale for location of proposed project c) Time-frame for proposed project (e.g. start and duration of construction and operation) d) Maps and other pictorial documents connected with the information on the proposed project e) Description and location of the environment likely to be affected f) For proposed projects requiring permit or other type of approval: date application received B. INFORMATION ON THE PUBLIC PARTICIPATION PROCESS IN THE PARTY OF ORIGIN 1. Public participation procedures 2. Expected start and duration of initial public consultation 3. Locations, dates, times of scheduled public consultation sessions (e.g. scoping sessions) 4. Opportunities for participation by Potentially Affected Party's public C. OPPORTUNITIES FOR POTENTIALLY AFFECTED PARTY TO PARTICIPATE 187 A P P E N D I X I I I Factors for determining significant adverse transboundary impacts (the use and nature of this list will be the subject of further development) The determination of whether adverse transboundary environmental impacts are significant involves consideration of the following factors: 1) Context: Context factors potentially relevant to the determination of significance of a transboundary environmental impact include, for example: a) The potentially affected human populations and vulnerable segments of population (e.g., children, elderly persons); b) Geographic extent (region and localities); c) Ecological context; d) Unique characteristics of the geographic area (e.g., proximity to historic or cultural resources, park lands, wetlands, wild and scenic rivers, or ecologically critical areas); e) Where provided by the Potentially Affected Party, standards regarding the protection of health or the environment as specified in international, national and subnational legal instruments; f) probability of occurrence; g) scientific uncertainty; 2) Intensity: Intensity factors potentially relevant to the determination of severity or magnitude of transboundary environmental impacts include, for example: a) Degree of toxic and other impacts on public health or safety; b) Degree to which environmental impacts involve unique or unusual risks, c) Degree to which a project is precedential in establishing a regulatory precedent or the issuance of a permit in a new area and therefore may cause future projects to be carried out with significant transboundary environmental impacts; d) Duration, potential for recurrence and frequency of impacts; e) Degree of irreversibility of impacts; f) Relationship to other projects that, even though individually insignificant, cause cumulative or can reasonably be anticipated to cause significant impacts. Significance exists if it is reasonable to anticipate a cumulatively significant impact on the environment and is independent of whether a project is temporary in nature or is broken down into small component parts; g) Degree to which physical or biological impacts of the project may adversely affect important historical or cultural resources or, traditional uses by indigenous people of cultural, historical and natural resources; h) Degree to which a project may adversely affect threatened or endangered species or its habitat that has been determined to be critical; i) Degree to which biodiversity is affected; j) Degree to which natural ecological systems and landscapes are transformed; k) Degree to which a project may foreclose or reduce the quality or availability of renewable and non-renewable resources. 188 APPENDIX IV \_ Basic content of a transboundary environmental impact assessment 1) Information on the nature of the proposed project a) Name and type of proposed project b) Scope of proposed project (e.g. main project and any/all peripheral activities requiring assessment) c) Scale of proposed project (e.g. size, production capacity) d) Description of proposed project, including relevant stages of installation, operation and decommissioning, as well technology used e) Purpose of proposed project f) Inputs and outputs (e.g. raw material, power sources) 2) Information on the spatial and temporal boundaries of the proposed project a) Description of the location of the proposed project b) Existing land use in the location c) Rationale for location of proposed project d) Time-frame for proposed project (e.g. start and duration of construction and operation) e) Maps and other pictorial documents connected with the information on the proposed project f) Site selection procedure or approval procedure for the project and description of alternative sites considered 3) Information on the environment likely to be affected, expected adverse transboundary environmental impacts and proposed mitigation measures a) Description and location of the environment likely to be affected by proposed project, including, as appropriate: i) Physical elements of the environment (e.g. land, air and water) ii) Biological resources of the environment (e.g. wildlife, including migratory and endangered species) iii) Human populations iv) Cultural, archaeological and historical resources b) Description and significance of expected adverse transboundary environmental impacts of proposed project and, as appropriate, alternatives to the project (e.g. types, location, magnitude, including impacts of accidents and malfunctions) i) Direct impacts from emissions and discharges and, physical alteration of landscape on: - Physical elements of the environment (e.g. land, air and water) - Biological resources of the environment (e.g. wildlife, including migratory and endangered species) - Human populations - Cultural, archaeological and historical resources ii) Indirect environmental impacts - Impacts of secondary facilities (e.g. access roads, worker housing) - Impacts of induced development (e.g. population growth due to increase employment) iii) Cumulative environmental impacts 189 - Impacts of similar actions in the area (e.g. dams along a watershed) added to the incremental impact of the proposed project - Impacts of other reasonably foreseeable actions in the area added to the incremental impact of the proposed project c) Follow-up measures d) Proposed mitigation measures (e.g. measures to prevent, eliminate or minimize adverse transboundary environmental impacts) e) Sustainable development issues (placement to be determined) 4) Proponent/Developer a) Basic information on the proponent/developer (e.g. name, address, previous experience/similar projects) 5) Points of contact a) Listing of the names of the governmental firms/agencies primarily responsible for the preparation and/or analysis of the environmental impact assessment 6) Public Participation a) Summary of coordination carried out with national and sub-national government agencies and the public within the country of origin and the potentially affected country b) Summary of substantive comments and responses 7) Additional Information a) Gaps in knowledge/data b) Difficulties encountered in assessment c) Explicit indication of predictive methods and underlying assumptions as well as the relevant environmental data used d) Non-technical summary of project e) Traditional uses by indigenous people of cultural, historical and natural resources; f) Regulatory approvals required 190 


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