EIA Law as “Background Norms”

The role and scope of human rights impact assessments can be better understood if one consid-ers the evolution of these instruments, which can be traced back to the Environmental Assess-ment of projects. Above, it has been explained how the scope of impact assessAssess-ments has expand-ed: From projects to policies, from environmental to social and human rights impacts, from the assessment of domestic to international impacts.

For heuristic purposes, it is useful to refer to the different steps and methods prescribed by do-mestic EIA law, which have been widely adopted also for other types of IAs, including HRIAs.¹⁶⁰ To a certain extent, this is a matter of practical necessity: It is at first necessary to decide which initiatives require an impact assessment (screening) before the content and depth of the as-sessment can be determined (scoping). Other issues are based on normative or political deci-sions, for example, whether participation shall already take place at the screening and scoping stage. As impact assessments started first as a distinct form of public decision-making in

159 Walker, ‘Human Rights in the Trade and Sustainability Impact Assessment of the EU-Tunisia Free Trade Agreement’ (above, n. 57), p. 106.

160 Zerk, ‘Human Rights Impact Assessment of Trade Agreements’ (above, n. 30), p. 9.

tic EIA-law in the United States,¹⁶¹ the characteristics and central elements of EIA-law shall brief-ly be outlined below and serve as “background norms”¹⁶² for the following analysis of HRIA norms.

Screening and Pre-Assessment

Screening is the first step to identify whether a particular initiative requires an impact assess-ment.¹⁶³ It is a decisive step and consequently gives often rise to disputes because parties disa-gree about which projects, programs, policies or other initiatives should be accompanied by an in-depth or “full” EIA. Practical constraints – time, money and other resources – would make it impossible to conduct EIAs for every single action taken by the respective actors. While EIA statutes often define certain categories of initiatives that always require impact assessments (“mandatory EIA”), at most times, a case-by-case prediction is necessary to determine whether the likely effects are going to be significant. The criteria “likelihood” and “significance” are, for example, reflected in Art. 2 (1) of the EU EIA-Directive (see Sec. 6.2 for a closer analysis). Anoth-er good example is NEPA which states that “all agencies of the fedAnoth-eral govAnoth-ernment” have to pre-pare environmental impact statements (EIS) “for legislation and other major Federal actions significantly affecting the quality of the human environment”.¹⁶⁴ At the end of this pre-assessment stage, the agency must prepare a so-called Environmental Assessment (EA), a public document to briefly provide evidence and analysis for determining whether to prepare a full EIS or a finding of no significant impact (“FONSI”)¹⁶⁵.

The circularity of such an approach to narrow down the applicability becomes evident: A full EIA to assess the environmental impacts is only triggered if significant environmental impacts are likely to occur. Domestic legislators came up with proposals to – if not overcome – at least man-age the problem of circularity. One approach is to conduct preliminary assessments to deter-mine whether significant impacts are likely to occur and a full-fledged IA is therefore neces-sary.¹⁶⁶ Other legal orders require the classification of projects into high-, medium- and low-risk categories.¹⁶⁷ A similar approach is taken by the EU legislator: The EIA Directive on Environmen-tal Impact Assessments contains a list of projects that are regarded prima facie as having “signif-icant impact”¹⁶⁸; in all other cases, the EU Directive provides for certain criteria to be considered for the screening exercise.

161 Craik, The International Law of Environmental Impact Assessment (above, n. 59), p. 23.

162 Term borrowed from: Ibid., 23 et seq.

163 For screning in HRIAs: European Commission, Guidelines on the analysis of human rights impacts in impact assessments for trade-related policy initiatives (above, n. 42), p. 5.

164 United States, NEPA, 42 USC 4332 Sec. 102 (2) (c).

165 40 C.F.R. §§ 1501.4, 1508.9; see also: US Supreme Court, Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 757 (2004).

166 Craik, The International Law of Environmental Impact Assessment (above, n. 59), p. 29.

167 For example, the International Finance Corporation classifies projects into category A, B and C projects:

IFC Sustainability Framework, IFC, para 40.

168 Art. 4 (1) in conjunction with Annex I in European Union, EIA Directive 2011/92/EU [2011] as amended by Directive 2014/52/EU.

Scoping

Whereas the goal of the screening process is to determine which initiatives need an EIA at all, the scoping phase aims at setting the focus on the most significant impacts: The objective is to find an adequate balance between comprehensiveness and efficiency.¹⁶⁹ This is important as the EIA process can be extremely time and money-consuming, and Environmental Impact State-ments (EIS) have consistently been criticized for being too long and unapproachable. So scoping requires policy- and decision-makers to narrow down the scope of a specific EIA and focus on those aspects that can have genuinely significant impacts, i.e. on the most likely and/or most serious potential harm. Two major challenges are apparent. First, the circularity-argument men-tioned above is also a concern here: How can the significance of impacts determine the scope of an IA if the very purpose of IAs is to identify likely significant impacts? This problem might be handled if one understands scoping not as a static element at the beginning of the IA procedure, but rather as a reflexive and on-going process.¹⁷⁰ The scope of the IA is not fixed once and for all but may change throughout the IA procedure. For example, an agency might learn new vital facts during a later consultation phase that justify the extension or restriction of the scope of the IA. A second challenge is that what counts as “significant” impact is a highly subjective question, and NGOs are often unwilling to “eliminate” issues from the list of impacts they once spotted as being significant.¹⁷¹ However, the determination of significance is, as a closer analysis of EIA law demonstrates, not completely discretionary but rather based on legal principles subject to at least restricted judicial review.

Impact analysis and consideration of alternative options

After screening and scoping, and – depending on the IA regime – before or after broad consulta-tion, technical or scientific analysis of expected impacts is required.¹⁷² The goal is to provide the necessary information to prepare the IA report. The choice of analytical methods is generally discretionary: it depends mainly on the particular case in question, and there is generally no single-best methodology a statute could prescribe to use. At the same time, what counts as an adequate method often requires technical expertise and can therefore only be subject to limited judicial review. Nevertheless, there are legal rules and principles guiding the analysis of impacts and the violation of which could be reviewed by courts or quasi-judicial bodies. This will be ana-lyzed in chapter 8.

NEPA and other EIA norms define minimum standards the IA report must meet, and accordingly, in order to meet this requirement, certain analytical steps are necessary. The EIA report must generally describe the objective of the initiative, the affected environment (“baseline scenario”) the environmental consequences of the planned activities as well as of potential alternative op-tions. Based on this information, the EIS must present the environmental impacts of the “pro-posal and the alternatives in comparative form, thus sharply defining the issues and providing a

169 Craik, The International Law of Environmental Impact Assessment (above, n. 59), p. 30; scoping in HRIAs: European Commission, Guidelines on the analysis of human rights impacts in impact assessments for trade-related policy initiatives (above, n. 42), p. 8.

170 Craik, The International Law of Environmental Impact Assessment (above, n. 59), p. 30.

171 Alan Gilpin, Environmental impact assessment (EIA) (Cambridge, New York: Cambridge University Press, 1995), p. 19.

172 Analysis in HRIAs: European Commission, Guidelines on the analysis of human rights impacts in impact assessments for trade-related policy initiatives (above, n. 42), p. 9.

clear basis for choice among options by the decision-maker and the public”.¹⁷³ It is essential to explore all reasonable alternatives, including the “no-action” option, and include, where neces-sary, “appropriate mitigation measures”. This step is “the heart of the environmental impact statement”.¹⁷⁴ Such an approach requiring the evaluation of different relative alternatives can be especially useful where absolute standards are inexistent.¹⁷⁵ At the same time, in particular rele-vant for HRIAs, the consideration of alternatives is a concretization of the principle of propor-tionality: it is necessary to identify the least restrictive means to achieve a legitimate objective.

On the other hand, the consideration of alternatives in IAs is also susceptible to abuse by EIS drafters: Agencies can frame the purpose in ways that either broaden or narrow the alternative analysis, and thus agencies can avoid presenting less intrusive alternatives, which will make the preferred option appear more favorable.¹⁷⁶

Public Participation and consultation

EIA regimes generally include some form of participation. Participation refers both to public consultations, by involving potentially affected individuals or communities, civil society organi-zations, the general public or other states and international organizations (external participa-tion), as well as internal consultation of other government agencies or departments (internal participation). The added value of participation can be instrumental or inherent.¹⁷⁷ The first em-phasizes the role of consultation as an instrument to gather valuable information and to coordi-nate policies (information model). The second perspective emphasizes the inherent value of participation, either from a skeptical (preference accumulation model) or analytic-deliberative perspective (transformation models).

Even though domestic and international EIA norms usually contain some form of consultation requirement, differences exist as to when, where, and how consultation takes place. Critics have pointed out that, in spite of the importance of the screening and scoping process, participation is rarely explicitly mandated at the early screening-stage.¹⁷⁸ Under US law, consultation is only required after a first draft has been finished.¹⁷⁹ It is then published and distributed for com-ments by other agencies and the public. This is a relatively late stage of the process as modifying an existing draft is often much more difficult compared to influencing an emerging one. In any case, the timing, form, and scope of consultation is an important element for human rights im-pact assessments and will be analyzed more closely in chapter 7.

173 United States, 40 CFR § 1502.14.

174 Ibid.

175 Craik, The International Law of Environmental Impact Assessment (above, n. 59), p. 31.

176 Daniel Mandelker, ‘The National Environmental Policy Act: A Review of Its Experience and Problems’, Wash. U. J. L. & Pol’y 293 (2010, 32, pp. 293–312, p. 305; Craik, The International Law of Environmental Impact Assessment (above, n. 59), p. 31.

177 Neil Craik, ‘Deliberation and Legitimacy in Transnational Governance: The Case of Environmental Im-pact Assessments’, Victoria University of Wellington Law Review, 38 (2007), pp. 381–401.

178 Craik, The International Law of Environmental Impact Assessment (above, n. 59), p. 31.

179 United States, 40 CFR § 1503.1.

IA-report and its relevance for the final decision

At the end of the process, those in charge of conducting the IA must draft the IA report which is the essential device to ensure that the respective environmental policies and goals are “infused into the ongoing programs and actions” of the competent agencies.¹⁸⁰ According to US law, the EIS shall specify the underlying purpose and the need for action defined during the IA proce-dure. In order to ensure that agencies take the input of consultations into account, they are often obliged to refer to these comments and mention the different arguments and preferences (duty to give reason). For example, US law mandates that agencies respond to all comments made.¹⁸¹ How does the EIA relate to the final (political) decision? The relationship can be discussed time- and content-wise. In both cases it is useful to remember the fundamental objective of Impact Assessments is to influence the final decision, irrespective of the type of IA-model in question, i.e. irrespective of whether the model is primarily targeted at information, participation or trans-formation. Nevertheless, it is still controversial at what time, for example, external and internal participation should place; the only logically consistent principle is that no final decision should be made before the EIA process has come to an end.¹⁸² Regarding the content and specific rec-ommendations enshrined in the EIS, the objective to inform the decision-maker implies that this recommendation is not binding – at least not in the sense that decision-makers have to choose the option the EIS prefers. Nevertheless, the findings in the IA-report can have indirectly binding effects and can shift the burden of proof, as will be discussed in section 10.2.2.

Monitoring and ex-post impact assessments

EIAs have, for a long time, been designed as an ex-ante planning tool. This has been subject to fundamental critique, pointing out that EIAs are unable to predict future impacts precisely.¹⁸³ Recently, the importance of monitoring and other follow-up mechanisms has been emphasized, including the conduct of ex-post impact assessments. This is important for at least two reasons:

First, monitoring, evaluation and other forms of ex-post impact assessments can enable institu-tional learning in order to improve the quality of future ex-ante impact assessments. Second, they identify deficits in the specific project or policy at hand and thus allow regulators, legisla-tors or other decision-makers to avoid or at least mitigate adverse impacts. In this sense, ex-post EIAs can be seen as a flexible regulatory tool,¹⁸⁴ however one that can only be effective if the legal act it accompanies contains flexibility mechanisms to adapt to the new findings. In order to become a useful tool, a legal framework must be in place to allow that these ex-post corrections can be implemented into the project or policy design. This will be addressed below (see section 9.1.2.1.5).

180 Ibid., § 1502.1; for HRIAs: European Commission, Guidelines on the analysis of human rights impacts in impact assessments for trade-related policy initiatives (above, n. 42), p. 12.

181 United States, 40 CFR § 1503.4; Craik, The International Law of Environmental Impact Assessment (above, n. 59), p. 32.

182 Ibid.

183 Ibid., p. 33.

184 Ibid.

2.4.2 The Role of Human Rights in Impact Assessments: Human Rights as Entitlements