Somebody pointed out this interesting water environmental justice-related legal fellowship with the Community Water Law Center. Here’s URL:
Happy Thanksgiving to everybody, especially to my students in the midst of preparing for the upcoming final exams. Among the things that I am particularly grateful for this year is the work of my book co-authors who have helped push our comparative/global environmental law casebook within sight of completion. The book will be out next year and will offer law teachers, students, and practitioners with new materials, understandings, and approaches to a relatively new perspective on environmental law.
In the meantime, here is something else that I have also been working on — a draft chapter on China’s Cancer Villages, by myself and two of my former students, Quoc Nguyen and Linda Tsang. The chapter describes cancer cluster phenomena that have emerged all over China in the last 10-15 years: Tseming Yang, Quoc Nguyen, and Linda Tsang, China’s Cancer Villages (November 2, 2018). Forthcoming, The Cambridge Handbook on Environmental Justice and Sustainable Development, eds. Sumudu Atapattu, Carmen G. Gonzalez and Sara Seck. Available at SSRN: https://ssrn.com/abstract=3277638
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)
- ECOLEX/FAOLEX – ECOLEX.COM or FAOLEX.COM
- Netherlands Commission for Environmental Assessment: http://www.eia.nl/en/countries
- 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
- 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
- USAID, SAIEA, Development Bank of Southern Africa, “SADC Environmental Legislation Handbook (2012): https://irp-cdn.multiscreensite.com/2eb50196/files/uploaded/SADC%20Handbook.pdf
- Convention on Biological Diversity, National Reports and NBSAPs: https://www.cbd.int/reports/search/
- 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
- E-LAW, EIA Law Matrix: https://www.elaw.org/elm
- 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
- AECEN EIA Compendium: https://www.aecen.org/eia
- IFC EIA in LatinAmerica Chart: http://www.ifc.org/wps/wcm/connect/1069ce004c08ad23ae9cbe79803d5464/3_eia+in+lac+poster.pdf?mod=ajperes
- 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
- Pacific Environment Information Network of Secretariat of the Pacific Regional Environment Programme: https://www.sprep.org/pacific-environment-information-network/pein
- Institute for Global Environmental Strategies, “Strengthen EIA in Asia” (2016): https://www.aecen.org/sites/default/files/strengthening_eia_in_asia.pdf
- World Bank, “EIA Regulations and Strategic Environmental Assessment Requirements: Practices and Lessons Leearned in East and Southeast Asia” (2006)
- UNECE Environmental Performance Reviews: https://www.unece.org/environmental-policy/environmental-performance-reviews/reviewed-countries.html
- OECD Environmental Country Reviews: http://www.oecd.org/environment/country-reviews/find-a-review.htm
- ELAW, Caribbean Environmental Law: https://www.caribbeanenvirolaw.org/countrieslistings
- 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
- EU Environmental Implementation Review Country Reports: http://ec.europa.eu/environment/eir/country-reports/index2_en.htm
- Espoo Convention Review of Implementation (national reporting): https://www.unece.org/env/eia/implementation/review_implementation.html
- 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
In a previous blog post, I shared my draft article, “The Emergence of the Environmental Impact Assessment Duty as a Global Legal Norm and General Principle of Law,” which described a global survey of the environmental impact assessment duty in legal systems across the world. For a direct link to the manuscript, click here. The link to the survey can be found at the end of this blog post (Part 1). There was also a chart and a map that I provided in the previous blog post, and that is duplicated below.
As I noted in the article, the survey finds that there are now at least 183 countries or jurisdictions (out of a total of 197 surveyed (i.e. all of the UN member states plus a few other jurisdictions) that have adopted the EIA norm within their legal systems. In essence, globalization and other trends have made the EIA duty – the duty to perform environmental impact assessments for projects that are likely to have a significant impact on the environment – a globally accepted norm.
The article also argues 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. Finally, the survey results also point to comparative law methodology as a promising opportunity for identifying new legal norms in the international environmental law field. (And for those frustrated with the cumbersome process of treaty negotiation or the time-consuming development of customary law, this should be of particular interest.)
It may be worth noting that the survey is different from most other EIA law surveys and databases in its evaluative orientation: it did not merely inquire into whether a jurisdiction had created a system facilitating the application of the EIA process, but more specifically whether a jurisdiction actually legally mandated the performance of an environmental impact assessment. In other words, the survey sought to answer the question whether a jurisdiction has adopted an EIA duty or legal norm.
Because there is no other such survey available, I am making the relevant (and some connected items) available in a chart-form for review by the public. The link can be found below. In return, I hope to obtain assistance by other environmental scholars, lawyers, professionals or regulators with the survey. To the extent your review identifies a mistake or inaccuracy (or can provide useful supplementary information for the survey), please share that information with me. Specifically, I would greatly appreciate any assistance in clarifying the status of several countries which I was not able to classify with confidence as either having an EIA duty or not. These systems were designated as “Unclear” and include: 1) Central African Republic, 2) Holy See, 3) San Marino, 4) Monaco, 5) St. Vincent and Grenadines, 6) St. Lucia, 7) St. Kitts and Nevis, and 8) Barbados.
They survey chart has 14 columns, as follows:
- Country or Jurisdiction
- EIA Law? [classifications: Yes, No, Unclear]
- First Enabling Law Year [first year when law required EIA (or allowed for the application of the EIA duty if implementing regulations were necessary)]
- Current Enabling Law Year [Enactment of current applicable EIA law]
- Enabling Law (usually most current) [Title of the currently applicable EIA law, or most current that was available to us]
- Decree/Regs Year [Year of the implementing regulations or decree, usually the most current]
- Title of the decree or regulations
- EIA duty found in [reference to the EIA law that imposes the EIA duty]
- Text of EIA duty [text excerpt from EIA law]
- Language [language of the EIA law]
- Duty Confirmation [see explanation below]
- Duty Conf 2 [see explanation below]
- Link 4 Legislation [URL link to the EIA legislation – unfortunately not functional in the .pdf chart]
- Link 5 Regulation/Other [URL link to the implementing regulation or other relevant document – unfortunately not functional in the .pdf chart]
In reading the survey chart, note that the most important columns for purposes of my study and article, apart from the country name and whether it was classified as having an EIA duty or not (Yes, No, Unclear) (columns 1 & 2), were columns 11 & 12 (“Duty Confirmation” and “Duty Conf 2”). Columns 11 & 12 provide references and citations to official government reports as well as scholarly articles, statements, presentations, and websites that were relied on in classifying the EIA norm status of a jurisdiction. The reports, websites, and articles that were used most heavily with respect to this determination are listed in Part 2 of this blog post; these are referenced in column 11 (Duty Confirmation). Column 12 lists other sources that were relied on more sporadically for specific jurisdictions.
Please also note that the survey chart’s information about legislation (columns 3-5, 8-9), regulations (columns 5-6) and URL links (column 13-14) should be used with some circumspection. While my research fellows collected and included in the survey chart information about the year in which the EIA legislation was first enacted and the titles of current EIA legislation (as well as similar information about implementing regulations), the information was not critical to the objective of the survey. Accordingly, that information was not scrutinized and checked as carefully as columns 11 & 12. (Please see the description of the Survey Process and Methodology in Part 2 for additional explanation.)
In regards to columns 13 & 14, described as URL links — unfortunately, because of my technological clumsiness, I can only provide the survey chart as a .pdf document, which does not actually have working URL links. Once I have a technologically-capable research assistant, I plan to remedy that.
Finally, please review the survey methodology below to properly understand the result. (The description is mostly taken from the draft article itself.) However, I would like to state in advance that I am sure that the survey is not perfect, and that I appreciate any assistance in correcting inaccuracies or mistakes. Please contact me at firstname.lastname@example.org. Thank you.
Here is the link to the survey:
Here’s a posting for a clinical professor position at the environmental law clinic at Golden Gate Law School, with message by the director of the clinic, Helen Kang:
“Please help circulate our clinic’s job ad for the staff attorney/associate professor of law position (long-term contract) in San Francisco downtown. Our environmental clinic has an exciting docket and a proven record of achieving successes in difficult cases against well-resourced polluters and the government. We are currently in the midst of a cleanup battle against the U.S. Navy, where one of its contractors committed wide-ranging fraud, resulting in a site that is still extensively contaminated with numerous radioactive substances. Two of the contractor’s supervisors have already been sentenced to prison terms. There’s been significant media attention on this case, which our students helped uncover through interviews of whistleblowers who were former employees of the contractor. We are also engaged in litigation in multiple fronts to clean up agricultural pollution with our co-counsel, the Stanford environmental clinic. We just won a California appellate court case two weeks ago that for the first time required agricultural pollution permits to demonstrate that they have a high likelihood of achieving the state’s water quality objectives.”
EMPLOYMENT OPPORTUNITY Golden Gate University School of Law
536 Mission Street
San Francisco, CA 94105
JOB POSTED: 9-4-18
APPLICATION CLOSING DATE: Open Until Filled
POSITION: Associate Professor of Law and Staff Attorney,
Long-Term Contract Position, two-year contract term, renewable based on performance and funding
DEPARTMENT: School of Law – Environmental Law and Justice Clinic
REPORTS TO: Director, Environmental Law and Justice Clinic
FLSA STATUS: Exempt
SALARY RANGE: Commensurate with Experience
BENEFITS: The University’s comprehensive benefits program
WORK SCHEDULE: This is a full-time position that requires being in the Clinic Monday through Friday during normal business hours and additional hours as needed, as well as in the summer.
START DATE: July 1, 2019
BASIC FUNCTION AND SCOPE OF JOB:
The Environmental Law and Justice Clinic at Golden Gate University School of Law (GGULaw) in San Francisco, California, invites applications, with significant litigation and environmental law experience, to fill a full-time long-term contract faculty position to commence July 1, 2019, as an Associate Professor of Law and Clinical Staff Attorney of GGULaw’s Environmental Law and Justice Clinic.
ABOUT THE CLINIC:
Established in 1994, the clinic is part of the law school and its nationally-ranked Environmental Law Program. The clinic is staffed by students, typically one or two graduate fellows, a Director who is a tenured professor, and an associate professor on a long-term contract. Widely recognized for its accomplishments and vibrant docket, the clinic’s dual mission is to train students to become effective, ethical lawyers and to provide excellent legal services to low-income communities and communities of color suffering the most from pollution. The clinic has successfully worked with communities to reduce air, water, and soil pollution from numerous industrial facilities and improved public accountability of government agencies. Students, staff, and faculty have contributed to landmark decisions in developments in the law, including in the areas of air pollution, renewable energy, information disclosure, and water quality. The clinic’s current work focuses on clean drinking water, air pollution reduction, and Superfund cleanup.
The staff attorney will work closely with the Director to ensure fulfilling the teaching and service missions of the clinic. The attorney will be responsible for developing and overseeing a litigation docket, co-teaching a seminar focused on environmental justice
law and policy and skills instruction, contributing to curricular development, closely supervising law students in all aspects of casework, and effectively handling cases during periods when students are not enrolled. The staff attorney will also assist the Director to ensure that the clinic is well-managed, as well as serve the needs of the law school, including through participation in committee work and other activities that support law students.
- A J.D. from an ABA-accredited law school and California State Bar membership in good standing
- Superb analytical, research (factual and legal), writing, and oral communication skills
- Must have extensive litigation experience, with aptitude and ability to take primary responsibility in clinic cases, including those involving trials; at least 5 years of relevant experience preferred; strong preference for candidates with expertise in federal and California environmental laws
- Strong interest in working with culturally and economically diverse groups
- Strong interpersonal skills to be able to effectively supervise students and collaborate with colleagues
- Strong organizational skills and work ethic
- High degree of professionalism in all aspects of lawyering, including in dealings with staff, colleagues, and opponents, and managing a demanding and high- intensity schedule
- Ability to adhere to the school’s policies, including the ability to handle confidential and sensitive information, and to deal with a wide variety of student concerns
Interested persons should apply online at http://www.ggu.edu/jobs, and include a cover letter highlighting the applicant’s qualifications and teaching interests, resume, a writing sample, and a list of references. Questions about this position may be directed to Professor Durmay, Chair of the Faculty Appointments Committee at email@example.com. Additional information about Golden Gate University School of Law is available at http://law.ggu.edu/ and the clinic, at http://law.ggu.edu/clinics-and- centers/clinics/environmental-law-and-justice/.
Golden Gate University is an Equal Opportunity Employer. The university has a strong commitment to the principles of diversity and inclusion, and to maintaining working and learning environments that reinforces these practices. The university welcomes and encourages applications from women, military veterans, minorities, people of color, persons with disabilities, and members of the LGBTQI community.
I have just put my article manuscript, “The Emergence of the Environmental Impact Assessment Duty as a Global Legal Norm and General Principle of Law,” on the Social Science Research Network. [Here is a link to the article abstract on SSRN, with link to the manuscript: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3202454.] It’s both an empirical study of the worldwide adoption of the environmental impact assessment norm (i.e. the requirement to engage in EIA analysis for projects and activities that have the potential to cause significant impacts on the environment) as well as an examination of the normative implications of this development for environmental law internationally and in national legal systems. (In the US, this norm has existed in our environmental law system since the enactment of the National Environmental Policy Act in 1969.)
The most interesting (in my view) and possibly the most controversial claim of my article is that the EIA norm has become a general principle of law in public international law. If this argument is accepted in public international law, this would have significant implication for international environmental law in that the EIA norm would be deemed LEGALLY BINDING as a matter of public international law. (For more details on this argument, see the article.)
Here is also the abstract of the paper itself:
More than half a century ago, Rudolph Schlesinger announced a global survey of legal principles in the pages of the American Journal of International Law. The project’s objective was the identification of a “common core” of legal norms among the family of nations and the ultimate goal the production of something akin to a global restatement of law. Such an endeavor was to yield global principles of law, ultimately giving substance to the General Principles of Law provision under Article 38 of the Statute of the International Court of Justice. In spite of the initial enthusiasm surrounding the project, its ultimate goal was never realized.
Five decades later, the prospect of engaging in such a project, focused on the environmental law field, promises more fruitful outcomes. In this article I argue that globalization and other trends have made the EIA duty – 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 197-jurisdiction survey finds that the duty has been nearly universally adopted. The article 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. Finally, the survey results also point to comparative law methodology as a promising opportunity for identifying new legal norms in the international environmental law field, independent of the cumbersome process of treaty negotiation or the time-consuming development of customary law.
Unfortunately, I am not quite done cleaning up the database of the empirical study – however, it is intended to be publicly available so that it can be reviewed together with the paper. I expect this to be completed soon. [The database is quite massive, and I am only making parts of its available; it took a couple of years and the work of 2 research fellows to assemble.]
I am including 2 slides (below) from a recent talk that I gave at VLS on this. Here is the summary chart of the database.
The second slide is a graphical representation of the chart, created by my research fellow Phoebe Wu.
[The map is based on a UN map; all the blue states/jurisdictions are places that have an EIA legal mandate as part of their legal systems; red states/jurisdictions do not have an EIA requirement; green are the states/jurisdictions for which we were not able to make a definitive determination (within our confidence criteria) as to whether an EIA duty existed in that jurisdiction.]
Today, Vermont Law School celebrated the 40th anniversary of the law school’s Environmental Law Center. Past directors (David Mears, Melissa Scanlan, John Echeverria, Marc Mihali, Karin Sheldon, Pat Parenteau, and Dick Brooks) were on hand to provide a nostalgic review of the Center’s history and accomplishments. The event was followed with a presentation of a set of Festschrift contribution for the Center’s founding Director, Richard Brooks, and his scholarly work. It was a touching tribute to the person who started it all.