The Environmental Impact Assessment Principle as a Global Environmental Legal Norm

firstpageMy most recent law review article, “The Emergence of the Environmental Impact Assessment Duty as a Global Legal Norm and General Principle of Law,” finally came out last month in the Hasting Law Journal (70 Hastings L. J. 525 (2019)).  Here is a link  http://www.hastingslawjournal.org/the-emergence-of-the-environmental-impact-assessment-duty-as-a-global-legal-norm-and-general-principle-of-law/.

In the article, I argue that globalization and other trends have made the EIA duty, that is the duty to perform environmental impact assessments for projects that are likely to have a significant impact on the environment, a globally accepted norm. A survey of 197 jurisdictions finds that the duty has been nearly universally adopted. The Article also suggests that the EIA duty may now be seen as a “general principle of law recognized by civilized nations,” and in that sense has joined the body of public international law.

What is the significance of this?:  1) Environmental Impact Assessment is now legally required in almost all jurisdictions across the world.  Even though many jurisdictions had adopted the EIA process over the years, EIAs were oftentimes not legally required and applied only on a discretionary basis.  It was not until recently that EIA has become almost universally required.  Thus, governments have recognized that EIA processes are not just a “good idea,” but that they must be performed when a project is likely to have a significant impact on the environment.

2) Nearly universal adoption of the EIA duty also indicates that EIA has become a general principle of law – because it is so widely recognized in national legal systems across the world.  This is an expansion of environmental legal norms in public international law, which generally has had few binding legal principles related to the environment.

3)  Finally, the finding of the article suggests that international lawyers need to pay much closer attention to developments in national legal systems with respect to environmental law, since those developments are relevant to and affect the development of international environmental law.  It also radically changes the paradigm of how international environmental law is evolving – instead of only top-down process (like treaty-making), bottom-up processes such as developments at the national level have become increasingly important (and are arguably more democratic).

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