Global Environmental Impact Assessment Norm Survey Part 2 – Methodology & Supporting Sources

The actual survey data can be accessed in Part 1 of this blog post.

The survey methodology description is taken directly from the article manuscript, which is available here.

The Survey and Results

The last comprehensive global study to survey EIA norms across the world was published almost two decades ago and found 120+ systems with some kind of EIA mechanism, even if not all imposed a legal duty. It showed that even at that time, EIA norms had already been widely adopted and regulators, activists, and judges have been applying them regularly. The purpose in conducting the present study was to determine whether, since that time, EIA adoption has spread significantly further among national legal systems.

The study specifically focused on legislation or regulations that mandated the performance of environmental impact assessment. Systems that merely authorized or suggested, but did not require, EIAs were not included in the count as part of the jurisdictions that recognize the EIA duty. Equally important, the survey generally did not concern itself with the effective enforcement of EIA norms. As a general matter, the survey classified jurisdictions as having an EIA duty (“yes”), not imposing such a duty (“no”), or “unclear.” Below follows a description of the survey process and classification methodology as well as the results, with a chart summary of the results set out in the Appendix.

Scope. The scope of the survey covered all countries with membership in the United Nations, as well as several nations and jurisdictions that have long been recognized as having independent regulatory authority over their territory. Because of their significance to infrastructure financing and with their broad geographical scope of operation, the survey also examined the EIA policies of the major multilateral development banks and several national development aid agencies.

The substantive focus of the study was the general umbrella norm, the duty to conduct an EIA for projects or activities that were likely to have a significant impact on the environment. For time and resource reasons, the survey did not attempt to classify subsidiary requirements such as scoping, the content of the EIA or public participation.

Survey Process and Methodology. To classify jurisdictions, the survey relied on both secondary sources as well as primary source materials identified by myself and two research fellows. Information on national EIA legislation and regulations was pulled from on-line databases, such as Ecolex, FAOLex, E-Law, the regional Legal Information Institutes, and national government websites. Secondary sources consulted included official government statements, reports by international organizations, impact assessment reports, judicial opinions, and the commentary and assessments of scholars and experts.
Our survey looked primarily to official English language sources as well as official translations, though we also utilized unofficial translations when we deemed them reliable based on the institutional source. My research fellows had good reading knowledge of French and Spanish and utilized those language skills in our survey. Thus, when legislative or regulatory materials were only available in Spanish or French, my research fellows would review such original legislative or regulatory text. More importantly, in order to minimize the possibility of legal misunderstanding, especially when legislative or regulatory text or meaning appeared to be ambiguous and when primary sources were only available in non-English languages, we always sought confirmation of our classification decisions in secondary sources. For jurisdictions where the primary materials were not available in English, French or Spanish, the survey had to rely exclusively on secondary sources (treatises, scholarly commentary, or institutional assessments) to determine whether there was an EIA duty in the relevant jurisdiction.
In instances where we found disagreement among secondary sources or when no secondary sources were available to confirm classification as a jurisdiction that mandated EIA, the jurisdiction was included in the “unclear/unknown” category. All classifications were reviewed by myself.
In examining confirming sources, whenever possible, we sought out official government communications, such as national reports to the Convention on Biological Diversity and the Espoo Convention on Environmental Impact Assessment in a Transboundary Context, and descriptions of the country’s EIA system on a government agency’s website. We also relied heavily on institutional assessments, such as country environmental evaluations by the OECD, the UNECE, various multilateral development banks (World Bank, Asian Development Bank, African Development Bank, Inter-American Development Bank), and the Netherlands Commission for Environmental Assessment. We considered these official statements and secondary sources to be the most reliable because they represented official governmental and institutional perspectives and were prepared by or in collaboration with national experts and oftentimes subject to review by the respective governments.

In addition, we also utilized scholarly publications as well environmental assessments prepared by multilateral developments banks, such as the World Bank, on specific projects. Environmental assessments by multilateral development banks often contained a section discussing the environmental regulatory system of the country seeking project financing and sometimes would explicitly discuss whether the jurisdiction had laws requiring EIAs.

In almost all of our classification decisions, our survey sought at least two or more confirming secondary sources, though there were a few instances where we were only able to identify one confirming secondary source. As an exception, we did not seek more than one confirming source when the relevant jurisdiction was within the European Union, since there is no legal doubt that the EU EIA directive independently imposes the EIA duty on member states.

In order to determine whether the EIA duty was legally mandated, we identified specific legislation or regulations that imposes that duty. In doing so, we also identified the year in which the regulation was promulgated or legislation enacted. Because our survey focused on the question whether each jurisdiction presently had an EIA mandate in place, it was not a priority for our survey to identify the legislation or regulation that first imposed the EIA duty with accuracy. Nevertheless, our research oftentimes did allow us to identify such information. Thus, if we became aware of earlier versions of the legislation or regulation that had first made EIA mandatory in that jurisdiction, we indicated that date in our database. It is worth pointing out that in many jurisdictions, the enactment of enabling legislation – that authorized EIA processes – was not coincident with the operationalization of EIA requirements by an implementing government agency. In some countries, implementing regulations that mandated EIA for projects did not come until quite a number of years later.

Conversely, there were a few occasions where the research suggested that the EIA legislation or regulation might have been amended subsequently. However, there was never an indication in our research that a government had taken the extraordinary step of repealing the EIA duty in its jurisdiction.

It is also worth noting that Singapore is a jurisdiction that has no general EIA requirement, and was classified as such. However, the state does appear to engage in impact assessment in specific contexts.

Survey Results. The survey results indicate that the EIA norm, requiring an EIA when a project is likely to have a significant environmental impact, has been nearly universally adopted. The norm has now been adopted in at least 183 countries and jurisdictions. That includes codification in emerging economies and developing countries such as China, India, and Brazil, in the least developed nations in Africa, and in the former communist nations, such as the Russian Federation. Even politically isolated states such as North Korea and Cuba have enacted EIA laws. Within the European Union and its member countries, directive 85/337 on EIA and directive 2001/42 on strategic environmental assessments mandate it. Thus, since the 1998 Donnelly study, the number of jurisdictions with a mandatory EIA norm has increased by more than 50.

Our survey also identified six states that did not possess an EIA requirement (South Sudan, Somalia, Eritrea, Suriname, Singapore, and Nauru), while we were unable to ascertain with sufficient confidence the status of eight other states (Central African Republic, Holy See, San Marino, Monaco, St. Vincent and Grenadines, St. Lucia, St. Kitts and Nevis, and Barbados).

* * * * *

Appendix 2:  Sources (organizations, articles, and websites) most heavily relied on for secondary confirmation of EIA norm. (Column 11 of the survey)

  1. ECOLEX/FAOLEX – ECOLEX.COM or FAOLEX.COM
  2. Netherlands Commission for Environmental Assessment: http://www.eia.nl/en/countries
  3. UNEP, “Environmental Assessment in the WIO Region: An overview of the policy, legal, regulatory and institutional frameworks related to Environmental Impact Assessment in the WIO Region” (2010): http://web.unep.org/nairobiconvention/sites/unep.org.nairobiconvention/files/unepdepi_eaf_cp_6_inf_11_regional_report_statusapproaches_for_application_of_eia_in_the_wio_region.pdf
  4. Development of Southern Africa, SAIEA, Handbook on Environmental Assessment Legislation in the SADC Region (2007): http://www.commissionoceanindien.org/fileadmin/resources/RECOMAP%20Manuals/Handbook%20on%20Environmental%20Assessment%20Legislation_SADC%20Region_Nov%202007.pdf
  5. USAID, SAIEA, Development Bank of Southern Africa, “SADC Environmental Legislation Handbook (2012): https://irp-cdn.multiscreensite.com/2eb50196/files/uploaded/SADC%20Handbook.pdf
  6. Convention on Biological Diversity, National Reports and NBSAPs: https://www.cbd.int/reports/search/
  7. Dieudonne Bitondo et al., Evolution of Environmental Impact Assessment Systems in Central Africa: The role of national professional associations (2014):  http://api.commissiemer.nl/docs/mer/diversen/os_evolution_eia_centralafrica_2014.pdf
  8. E-LAW, EIA Law Matrix: https://www.elaw.org/elm
  9. Ernesto Sanchez‐Triana and Santiago Enriquez, A
Comparative
Analysis of
Environmental
Impact Analysis
Systems
in
Latin America (Draft) (4/6/2007): https://www.ifc.org/wps/wcm/connect/c688c7004c08ac00ae87be79803d5464/2_EIA+in+LAC+IAIA+Seoul.pdf?MOD=AJPERES
  10. AECEN EIA Compendium: https://www.aecen.org/eia
  11. IFC EIA in LatinAmerica Chart: http://www.ifc.org/wps/wcm/connect/1069ce004c08ad23ae9cbe79803d5464/3_eia+in+lac+poster.pdf?mod=ajperes
  12. Inter-American Development Bank, “Approaches to Environmental Licensing and Compliance in Caribbean Countries” (2016): https://publications.iadb.org/bitstream/handle/11319/8083/Approaches-to-Environmental-Licensing-and-Compliance-in-Caribbean-Countries.pdf?sequence=1
  13. Pacific Environment Information Network of Secretariat of the Pacific Regional Environment Programme: https://www.sprep.org/pacific-environment-information-network/pein
  14. Institute for Global Environmental Strategies, “Strengthen EIA in Asia” (2016): https://www.aecen.org/sites/default/files/strengthening_eia_in_asia.pdf
  15. World Bank, “EIA Regulations and Strategic Environmental Assessment Requirements: Practices and Lessons Leearned in East and Southeast Asia” (2006)
  16. UNECE Environmental Performance Reviews: https://www.unece.org/environmental-policy/environmental-performance-reviews/reviewed-countries.html
  17. OECD Environmental Country Reviews: http://www.oecd.org/environment/country-reviews/find-a-review.htm
  18. ELAW, Caribbean Environmental Law: https://www.caribbeanenvirolaw.org/countrieslistings
  19. Marcelo Acerbi, Ernesto Sanchez-Triana et al., Environmental Impact Assessment Systems in Latin America and the Caribbean” (2014): http://conferences.iaia.org/2014/IAIA14-final-papers/Acerbi,%20Marcelo.%20%20EIA%20systems%20in%20Latin%20America%20and%20the%20Caribbean.pdf
  20. EU Environmental Implementation Review Country Reports: http://ec.europa.eu/environment/eir/country-reports/index2_en.htm
  21. Espoo Convention Review of Implementation (national reporting): https://www.unece.org/env/eia/implementation/review_implementation.html
  22. Ana Luisa Gomes Lima, Ernesto Sanchez-Triana et al., “Environmental Impact Assessment in South Asia,” (2015): http://conferences.iaia.org/2015/Final-Papers/Sanchez-Triana,%20Ernesto%20-%20Environmental%20Impact%20Assessment%20Systems%20in%20South%20Asia.pdf

 

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