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

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).

Teaching Fellowship – Stanford Law School’s Environmental Law LLM Program (Deadline: March 15, 2019)

A really interesting opportunity for anybody interested in law teaching, especially environmental law.

From the email that shared the announcement:  “The position involves running, and teaching in, the law school’s LLM Program in Environmental Law & Policy and is probably best suited to someone thinking about an academic career, but any qualified applicant is encouraged to apply.”



A few fellowships for graduating law students or recent law grads

These fellowships floated across my email over the past few days.

1.  University of Maryland Carey School of Law – Agricultural Law Education Initiative Legal Fellow at UMD Carey School of Law: Great opportunity to work on food and agriculture policy. Tight window to apply though (Feb. 22nd cut off, position starts March 4.  Additional info at:

2. Emory University School of Law, Fellow at Turner Environmental Law Clinic:  Application deadline is March 15, 2019, start date on August 1, 2019.  More details at:

3.  Pace Law School:  3 LLM Graduate Fellowships, starting August 2019.

Pace Law Environmental LLM Grad Fellow:

Pace Law Global LLM Grad Fellow:

Pace Law EASE LLM Grad Fellow:

Community Water Law Center/California ChangeLawyers Year-Long Legal Fellow, Visalia, CA (Deadline: rolling)

Somebody pointed out this interesting water environmental justice-related legal fellowship with the Community Water Law Center.  Here’s URL:

Happy Thanksgiving and a Piece on China’s Cancer Villages

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:

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)

  2. Netherlands Commission for Environmental Assessment:
  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):
  4. Development of Southern Africa, SAIEA, Handbook on Environmental Assessment Legislation in the SADC Region (2007):
  5. USAID, SAIEA, Development Bank of Southern Africa, “SADC Environmental Legislation Handbook (2012):
  6. Convention on Biological Diversity, National Reports and NBSAPs:
  7. Dieudonne Bitondo et al., Evolution of Environmental Impact Assessment Systems in Central Africa: The role of national professional associations (2014):
  8. E-LAW, EIA Law Matrix:
  9. Ernesto Sanchez‐Triana and Santiago Enriquez, A
Analysis of
Impact Analysis
Latin America (Draft) (4/6/2007):
  10. AECEN EIA Compendium:
  11. IFC EIA in LatinAmerica Chart:
  12. Inter-American Development Bank, “Approaches to Environmental Licensing and Compliance in Caribbean Countries” (2016):
  13. Pacific Environment Information Network of Secretariat of the Pacific Regional Environment Programme:
  14. Institute for Global Environmental Strategies, “Strengthen EIA in Asia” (2016):
  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:
  17. OECD Environmental Country Reviews:
  18. ELAW, Caribbean Environmental Law:
  19. Marcelo Acerbi, Ernesto Sanchez-Triana et al., Environmental Impact Assessment Systems in Latin America and the Caribbean” (2014):,%20Marcelo.%20%20EIA%20systems%20in%20Latin%20America%20and%20the%20Caribbean.pdf
  20. EU Environmental Implementation Review Country Reports:
  21. Espoo Convention Review of Implementation (national reporting):
  22. Ana Luisa Gomes Lima, Ernesto Sanchez-Triana et al., “Environmental Impact Assessment in South Asia,” (2015):,%20Ernesto%20-%20Environmental%20Impact%20Assessment%20Systems%20in%20South%20Asia.pdf


Global Environmental Impact Assessment Norm Survey Part 1 – Survey

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:

  1. Country or Jurisdiction
  2. EIA Law? [classifications: Yes, No, Unclear]
  3. First Enabling Law Year [first year when law required EIA (or allowed for the application of the EIA duty if implementing regulations were necessary)]
  4. Current Enabling Law Year [Enactment of current applicable EIA law]
  5. Enabling Law (usually most current) [Title of the currently applicable EIA law, or most current that was available to us]
  6. Decree/Regs Year [Year of the implementing regulations or decree, usually the most current]
  7. Title of the decree or regulations
  8. EIA duty found in [reference to the EIA law that imposes the EIA duty]
  9. Text of EIA duty [text excerpt from EIA law]
  10. Language [language of the EIA law]
  11. Duty Confirmation [see explanation below]
  12. Duty Conf 2 [see explanation below]
  13. Link 4 Legislation [URL link to the EIA legislation – unfortunately not functional in the .pdf chart]
  14. 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  Thank you.

Here is the link to the survey:

Global EIA Study (as of 9-17-2018)