Environmental Impact Assessment (EIA) Planning Process

Environmental Impact Assessment (EIA) Planning Process CHAPTER 1: INTRODUCTION Environmental Impact Assessment (EIA) is 20 year old tool for environmental management, not living up to its full potential. (Mudge, 1993). This chapter describes the Environmental Impact Assessment (EIA) planning process as conventionally depicted in subsequent EIA texts and guidelines. EIA characteristics and objectives are first presented because EIA planning process characterisations are interdependent with assumed EIA characteristics and objectives. Following the depictions of EIA characteristics, EIA objectives and the EIA planning process vary greatly from source to source. These variations are more the result of the varying perspectives of different authors than clearly defined schools of thought. Although, there has been a pro- process of evaluation over the past two decades, there also are many instances where elements suggested in earlier works have not been incorporated into most recent portrayals. This overview of the conventional EIA planning process is a point of departure for the modifications and refinements discussed in later chapters of this research. Also, the conventional portrayals of EIA characteristics, EIA objectives and the EIA planning process will be revisited in later chapters, taking account of combined implications. The following are EIA characteristics as commonly depicted in introductory EIA literature and guidelines; As a field of study EIA draws upon many social and natural science disciplines (Jain, Urban and Stacey, 1977). Drawing upon diverse disciplines is necessary to understand the significant aspects of the environment in order to predict how those environmental attributes may change over time with and without a proposed action; Boundaries between, and links to both traditional disciplines and to other transdisciplinary and transprofessional fields such as planning (Lawrence 1992). EIA must transcend individual disciplines if a holistic image of the environment with and without a proposed action(s), is to be presented. Hence, EIA should not be viewed as a transdisciplinary field. EIA consist of structural approaches and set of procedures in order to ensure that environmental factors are considered in planning and decision making (Clark1981a). In this regard EIA is a normative procedure that seeks to identify natural and social environmental norms or ethical standards and to infuse these into planning and decision making. In the definition of Environmental Impact Assessment, the impact element is often prefaced by one or more dimensional distinctions, such as; positive and negative (Mitchell and Takheim 1977; Rau and Wooten 1980); time ( short term, long term, frequency, duration); space (on-site, off-site); direct and indirect, quantitative and qualitative; individual and cumulative; and likelihood of occurrence (Rau and Wooten 1980). While the assessment component of EIA includes analysis synthesis and management- Analysis involves data collection and compilation, the identification of likely environmental conditions and interactions among environmental conditions and systems (Mm 1979; Munro et. al 1986; Amour 1990; Erickson 1994) und the description, measurement and prediction of likely effects and interactions among effects. Synthesis includes the interpretation of the significance of affects and interactions among them (Munn 1979; CEARC l988b) and the aggregation and evaluation of individual and cumulative effects (Cumulative Environmental Assessment CEA) both with and without mitigation (Westman 1985; Lang and Annour 1981; Armour 1990; Erickscm 1 994; Shoanaka 1994). Management includes mitigation (Jain, Urban and Stacey 1977) compensation and local benefits (Amour 1990), the management of residual impacts (CEARC 1988b), monitoring and contingency measures, and communications/ consultation activities (CEARC 1988b). In summary, EIA is a process that identifies, predicts, evaluates and manages the potential (or real) impacts of proposed (or existing) human activities on both the human and natural environment. The EIA planning process includes analysis, synthesis, management, communications and consultation activities. The consequences of such activities and their alternatives will result in specific impacts. Underlying EIA practice are usually implicating application assumptions. Formal or informal institutional mechanisms are, for example, anticipated to be in place to help to compel, or at least facilitate public or private proponents to initiate and complete an EIA planning process and the necessary documentation, as a perquisite to project approval. Along with perquisite methods it is expected that a systematic planning process can be devised or adapted for analysing and synthesizing the appropriate data and for involving relevant agencies and the public. Further assumed that: there is appropriate expertise to tackle the necessary technical work and to review whatever the outcomes of the planning process; there is a basis for choosing among alternative plans and for deciding if an undertaking should or should not proceed; the people who make the decision will rationally use the information provided to guide their actions; the requirements for approvals can be enforced and the impacts managed if unforeseen impacts occur; the contingency measures can be instituted. These application assumptions have been increasingly challenged in the EIA literature and in decision of courts and hearing panels and boards. The expectation that knowledge and expertise are sufficient may be especially dubious in situations characterised by emerging technologies, poorly understood environments and complex inter relationships within and among proposed actions and components of the environment. The extension of EIA from the conceptual to the applied pre-supposes that EIA must also be a transprofessional field of practice, EIA comprises of a core body of knowledge, skills and methods. Social and natural sciences provide the initial knowledge base- EIA seeks to integrate and, thereby transcend, the inputs and insights of a range of professions with expertise m the proposed action, the environment and their interactions, within a public policy setting. Frameworks, procedures and methods have been formulated and refined through practice, which over the years, has resulted in the emergence of EIA as a recognized area of expertise. EIA is a planning tool (Bisset 1983; Clark l9Ã »3a; Smith 1993). It is a form of applied policy analysis or more specifically, a form of resource management and environmental planning (Smith 1993). Consequently, the formulations and applications of environmental planning processes is one aspect of EIA. It, therefore, tends to be assumed that the EIA planning process should be anticipatory (prior to decision-making), systematic or orderly and rational. The results and conclusions from the EIA planning process should also be documented, generally in the form of an EIA report or statement. EIA is a generic planning process intended to contribute environmental information to decision-making. It provides a regulatory basis for forcing the explicit consideration of environment concerns by public and private decision makers. As such EIA forms a part of the institutional fabric through legislation, public policy or administrative procedures. Institutionalisation requires mechanisms to prepare, review and document the process, to coordinate inter-agency and private/public interactions, to adjudicate disputes and to monitor and enforce compliance. This dissertation therefore takes up this theme to investigate the effectiveness of EIA in the Skye Bridge project by considering the planning process and by using literature review as a means of analysis and research. CHAPTER 2: LITERATURE REVIEW On July 3, 1988, European Union (EU) Directive 85/337/EEC (Directive) came into force and as a result, Environmental Impact Assessment (EIA) became a part of the EUs environmental protection plans. The Directive requires that before consent is given for the development of certain public and private projects that are likely to have significant effects on the environment, an assessment of those effects must be compiled and considered by the developer and the authority in charge of approving the projects. By asking decision-making authorities to ponder likely environmental harm before the harm occurs, the Directive promotes a policy of preventing environmental harm. The comprehensive effectiveness of mandating pre-consent environmental impact assessment is undercut, however, because the Directive textually exempts national defense projects from its process. This study suggests that the European Union could and should include national defense projects in its EIA law. Part I of this Chapt er will provide a summarized, chronological evolution of environmental policy in the European Union. Part II will give a description and history of EIA law, including that of the United States, so as to provide a comparative and contrasting point of reference. Part III will propose a way by which the European Union can more fully live up to the preventative approach that it has espoused for environmental protection by requiring environmental impact assessments for national defense projects. This Chapter concludes that the inclusion of national defense projects in the EUs EIA law would broaden the scope and effectiveness of EIA law and environmental protection generally. 2.1. HISTORICAL AND LEGAL DEVELOPMENT OF ENVIRONMENTAL IMPACT ASSESSMENT LAW 2.1.1. The Evolution of Environmental Policy in the EU The 1957 Treaty of Rome (Treaty), which established the European Economic Community, focused on the creation of a common-trade zone. Accordingly, the Treaty failed to make any explicit statements regarding policies for environmental protection. In fact, until 1987, all EU environmental protection legislation was introduced via the general language of one or both of two Treaty articles that only implicitly recognized EU authority over environmental issues in Member States. Article 100 of the Treaty calls for the harmonization of laws affecting the common market in Member States. Article 235 authorizes measures that prove necessary to attain one of the objectives of the Community absent a specific delegation of authority by the Treaty. Although the Articles make no explicit reference to environmental issues, they have been used as authority for certain environmental regulations. For example, Article 100s allusion to issues affectin g the common market was used as the authority to develop legislation that regulated product and industry standards across the EU. On the heels of the increased environmental awareness that swept the globe in the late 1960s, the European Community initiated the European Community Action Programmes on the Environment. The first of these five-year programmes, covering the years from 1973 to 1977, established principles and priorities for future environmental policies. The second five-year programme (1977-1981) established a list of eleven principles and actions to be taken in order to move closer to the goal of environmental protection. The list included the decision-making tool of environmental impact assessment. The first two Action Programmes had a common theme of protecting human health and the environment by controlling pollution problems. The third five-year Programme (1982-1986) solidly shifted the emphasis of environmental policy from one of pollution control to one of prevention and integration of environmental issues into other European Community policies. Not surprisingly, it was during the era of the S econd and Third Action Programmes when Directive 85/337/EEC, an inherently preventative and integrating piece of legislation, was first proposed and then accepted. The Fourth Action Programme (1987-1992) continued the trend of prevention but proceeded further beyond its predecessors by stressing the importance of using stringent environmental standards in regulating the activities of Member States. The evolution of environmental policy in the EU took a crucial step on July 1, 1987 when, in conjunction with the adoption of the Fourth Action Programme, the Community adopted the Single European Act. The Act, which consisted of amendments to the Treaty of Rome, contained articles that specifically affected environmental policy. Article 100A recognized the relationship between promotion of the common market and protection of the environment by authorizing the EU to adopt environmental legislation on the basis that such issues affect the marketplace. Article 130R lays out the objectives of future Community action relating to the environment by formalizing the principles of prevention, subsidiarity, polluter pays, and most importantly, integration. Article 130T reconfirms that individual Member States may enact environmental legislation that is more stringent than, but is compatible with, that of the Community. The evolution of environmental policy in the EU from the 1957 Treaty of Rome through the various Action Programmes and to the Single European Act exemplifies the European Communitys commitment to a preventative approach to environmental protection. EIA law stands as a hallmark of that preventative approach. The EUs commitment to the comprehensive prevention of environmental degradation is tested, however, by the limitations of its own EIA law. 2.1.2. Environmental Impact Assessment Law: A Description and Comparative Study 2.1.2.1. EIA: A General Overview The essential structure of EIA law is common to all the nations that use it. Generally, EIA law is a process intended to minimize or prevent environmental damage that is usually associated with the construction and operation of certain development projects. Usually in the form of legislation, regulations and/or administrative processes, EIA law requires that certain development projects, while still in a planning stage, be analyzed in terms of their potential adverse impacts on the environment. Developers and/or governmental bodies, depending on the particularities of the EIA law in question, must conduct an analysis, or assessment, of the environmental effects of certain projects. The public authority responsible for granting or denying consent to the project is asked to take into account the results of the assessment. Again, depending on the particularities of the EIA law in question, provisions are made for public disclosure of the assessments, as well as for public involvement in the authoritys decision-making process. The EIA process plays four important roles in protecting the environment. First, EIA law gives concrete, practical effect to environmental policy language that is often broad, general and otherwise absent of specific mandates. The U.S. Congress, in formulating its declarations of environmental policy, included EIA so as to insure that the policies enunciated . . . are implemented. EIA helps to insure proper implementation of policies by requiring the formulation and submission of written assessment reports, demonstrating an affirmative compliance with the environmental concerns outlined in policy language. A second role for EIA is to provide an analytical decision-making tool that institutionalizes foresight. It asks the decision-making authority to look beyond the moment and to incorporate into its decision the possible irreversible future effects a project may have on the environment. Third, to the extent that EIA affirmatively asks developers and decision-makers to account for the social and economic costs resulting from their actions, EIA forces the internalization of those costs and consequences that might otherwise go unaccounted for. The final role that EIA plays is as a public-awareness measure. Most EIA processes allow for public disclosure of development plans, as well as for public participation in the decision-making process. In the words of Professor Nicholas Robinson, EIA facilitates democratic decision making and consensus building regarding new development. For EIA to incorporate environmental norms into decision making, it must address both environmental ethics and values and human ethics, values, perceptions, beliefs and attitudes. It is an objective procedure for identifying, measuring and predicting environmental attributes and changes brought about by existing or proposed actions, but is subjective in the interpretation, aggregation and management of those changes. Although driven by an environmental ethic, the links between EIA and ethical theory in general and environmental ethics in particular, have been tenuous at best. The tendency has been to assume that concepts and methods developed to predict and explain environmental change provide a sufficient knowledge base. The practice of EIA involves, usually implicit assumptions regarding the known environment, environmental impacts and environmental norms. It is, for example, generally assumed that aspects of the environment and their inter- relationships can be identified, described or measured and monitored; changes, with or without a proposed action can be predicted to the extent that cause-effect relationships can be established; stakeholders values can be determined; measures of impact magnitude and importance can be combined; individual and cumulative environmental consequences can be interpreted, aggregated and managed; end issues of probability of uncertainty can be managed sufficiently to decide whether a proposed action should proceed and, if so, then, in what fashion. These knowledge assumptions are questionable, especially in the subjective realm of conflicting values, perceptions and human behaviour. The primary focus of EIA was initially on the physical and natural environment and, to a lesser extent, on the socio economic consequences of physical and natural environmental changes. The environmental aspect of EIA now generally embraces both natural (physical, biological and ecological) and human (human health and well being, social, cultural, economic built) environmental components and systems (Wiesner, 1995) and their inter relationships (Jain, Urban and Stacey, 1977; Estrin and Swaigen, 1978; CEARC, 1988b). There are many opinions regarding whether social impact assessment (SIA) or socio-economic impact assessment is or should be a sub-field of EIA (Morris and Therive1, 1995). A broad definition of the environmental EIA facilitates a more comprehensive approach to environmental management but it leaves open the possibility that certain elements of the environment will not receive pertinent attention. The question of how best to integrate social, ecological and economic data and perspectives remains unresolved. Human actions alter the environment (Jain, Urban and Stacey 1977; Mitchell and Turkheim 1977). In EIA, the term impact generally refers to the accepted environmental consequences (Meredith 1991) of a proposed action or set of actions (Rau and Wooten 1980) and less frequently to the actual consequences of an existing activity. Distinctions also are often drawn between changes or effects (measures of magnitude) and impacts (measures of magnitude in combination with measures of importance), between alternations of environmental conditions or the creation of a new set of environmental conditions, and between environmental conditions changes caused or ind uced by actions (Rau and Wooten 1980). Although the traditional focus of EIA has been capital projects, EIA requirements are increasingly applied to legislative proposals, policies, programs, technologies, regulations and operational procedures (Munn 1979; Estrin and Swaigen 1978; CEARC 1988b). The expectation that the conceptual basis for EIA largely developed at a project level can be readily extended and applied to policies, programs and technologies is questionable. At the policy and program level the range of inter related choices tends to multiply, impacts tend to be more generic and less amenable to precise prediction and EIA overlaps with policy and program evaluation, planning and environmental and resource management. A distinction is sometimes drawn between project level EIA und the strategic environmental assessment (SEA) of policies, plans and programs (Sadler 1995). Risk assessment, technology assessment and environmental health impact assessment are viewed as either subfields within EIA (Sadler 1995) or as distinct fields that partially overlap with EIA in most cases EIA applies to the actions of both public and private proponents (Meredith 1991; Mitchell and Tuclcheh 1977). Alternative methods of achieving a proposed end and of managing the impacts associated with a partial choice are also usually considered in an EIA planning process. 2.1.2.2. A Comparative Study: The United States Experience with EIA The significant history of EIA law began with the passage in the United States of the National Environmental Policy Act (NEPA) of 1969. NEPA was brought about as an instrument of policy and planning (Roberts, 1984a). Among NEPAs eloquent but broad declarations of environmental policy is a brief section mandating EIA law for certain projects, thus providing a set of teeth with which to enforce the statutes policies. Section 102(2) of the Act requires all federal agencies to prepare and include an environmental impact statement (EIS) with every recommendation or proposal for major Federal actions significantly affecting the quality of the human environment. The importance and weight of this requirement, as well as the problems inherent in defining its triggering terms, are demonstrated by the fact that the EIS clause has spawned nearly all case law brought under NEPA. Much of NEPA case law has dealt with the issue of w hether projects involving national defense and national security are subject to compliance with Section 102(2), and judicial review of such compliance. The environmental, public-awareness and military interests at stake in these cases are reflected by two questions. First, will compliance and judicial review compromise the confidentiality of matters regarding national security? Second, will compliance and judicial review compromise the ability of the military to proceed with projects, which while detrimental to the environment, are crucial to the defense of the country? In answering these questions, it is important to note that NEPA calls for EISs from all agencies of the Federal Government; the statute does not provide a textual exception for national defense or security projects. Despite the clear language of the statute, however, U.S. courts have struggled with the issue and are currently responding in a manner that runs counter to the language and true intent of NEPA. Most court decisions find that NEPA-based claims against projects involving national defense interests are justifiable. Early cases, however, were ambiguous in answering questions of whether such projects must comply with NEPA requirements and whether EISs for such projects are subject to judicial review of their legal sufficiency. For instance, in the early case of McQueary v. Laird, the Tenth Circuit Court of Appeals dealt with a NEPA challenge to a military project by claiming lack of jurisdiction. In another early case, Citizens for Reid State Park v. Laird, the U.S. District Court for the Southern District of Maine found that NEPA applies to all federal agencies, including the Department of Defense. The Court in Citizens for Reid State Park refused to require an EIS for the Navy project in question, however, because it found that the plaintiff citizens group had failed to prove that the Navy plans constituted a major project significantly affecting the environment. Later court d ecisions often allowed national defense projects to proceed without an EIS or judicial review of an EIS, not because the courts believed that such projects did not have to comply with NEPA, but merely because the courts found that major federal action or significant effects on the environmentrequirements necessary to trigger NEPA were absent. In cases where major federal actions having significant effects on the environment were found to exist, compliance with NEPA was required despite national security interests. In Committee for Nuclear Responsibility, Inc. v. Schlesinger, for example, the Supreme Court refused to issue an injunction for violation of NEPA, but the Courts rushed decision upheld a Court of Appeals finding that the Atomic Energy Commission did have a judicially reviewable duty to comply with NEPA requirements in spite of national security considerations. In Progressive Animal Welfare Society v. Department of Navy, the Western District Court of Appeals of Washington found that the Navys plan to use dolphins in a military project was a major federal action with significant environmental impact; accordingly, a NEPA EIS was required for the project. Finally, in Concerned about Trident v. Rumsfeld, the Court of Appeals for the District of Columbia found that the Navys plans for a submarine support facility requ ired compliance with NEPA to the fullest extent possible. The court found that the Navys own internal environmental impact statement was insufficient to fulfill the requirements of NEPA. In making its decision, the court, citing judicial precedent as well as NEPAs lack of a textual military exception, rejected the Navys argument that NEPA could not possibly apply to strategic military decisions. The court stated that the Navys plans were subject to NEPA requirements despite the projects serious national security implications. In 1981, the Supreme Court again addressed the issue of the militarys compliance with NEPAs EIA mandate. In Weinberger v. Catholic Action of Hawaii, the Court refused judicial review of the Department of Defenses compliance with NEPA in a matter of national security. The dispute began with the Navys plan to construct a weapons and ammunition holding facility capable of storing nuclear weapons in Ohau, Hawaii. The Navys internal assessment concluded that the fac ility would not have significant impact on the environment and as such, a NEPA EIS was unnecessary. The Navys assessment, however, failed to include an analysis of the facilitys impact on the environment should nuclear weapons actually be stored at the site. The district court that first reviewed the case found that the Navy had complied with NEPA to the fullest extent possible. The Ninth Circuit Court of Appeals reversed the decision of the district court, arguing that an EIS was necessary and feasible since it would not necessarily release confidential matters. Important to the court was the fact that the Navy had already made the nuclear capabilities of the facility public knowledge. The court went on to suggest a hypothetical approach to writing EISs that would protect national security, environmental concerns, and public disclosure interests. Judge Merrill wrote that under this hypothetical approach, the Navys EIS must evaluate the hypothetical consequences of storing nuclear weapons at the site but it need not imply that a decision to actually store nuclear weapons had been made. The court argued that since the public was already aware of the capability of the facility to store nuclear weapons, a hypothetical EIS that discussed the impact of such storage, but not whether it would actually occur, would not reveal anything the public did not already know . Further, it would allow the Navy and the decision-making authority to consider the true and potential costs and consequences of proceeding with the project. Finally, the Court stated that a hypothetical EIS would assure the public that the decision-making process had fully accounted for the projects externalities and consequences. On review, the Supreme Court reversed the Court of Appeals creative approach to balancing the interests at stake. The Court, discrediting the Ninth Circuits notion of a hypothetical EIS, refused to mandate a NEPA EIS because it believed that doing so would reveal confidential matters of national security. In the majority opinion, Justice Rehnquist outlined the current status of the law regarding military compliance with EIA law in the United States. He wrote that public policies favoring the protection of confidential information regarding national security ultimately forbids judicial scrutiny of whether or not the Navy has complied with NEPA to the fullest extent possible.' Justice Blackmun, who concurred with the judgment of the Court, was joined by Justice Brennan in stressing that although the Defense Department may disseminate EISs in a manner that protects confidential matters, it is still bound by the obligations of NEPA. 2.1.2.3. A Comparative Study: The European Unions Experience with EIA Sixteen years after NEPA took effect in the United States and after five years of consideration in the European Union, Environmental Impact Assessment law was officially incorporated into the statutory framework of the EU on June 27, 1985. Directive 85/337 mandates EIA for certain projects such as those involving crude-oil refineries, thermal and nuclear power stations, motorway construction and dangerous waste landfills. It also requires EIA to be performed in conjunction with those other projects that Member States find have a significant effect on the environment due to the projects particular characteristics. The specific legal authority for the Directive is derived from Articles 100 and 235 of the EEC Treaty. The Directive also cites to the first three Action Programmes for their policies of preventing environmental harms at the source rather then trying to counteract environmental degradation once it occurs. The procedure called for by the Directive identifies, describes and analyzes the effects a development project may have on humans, fauna, flora, soil, water, air, climate, landscape, welfare and cultural heritage. The EIA must contain a description of the project in question, an outline of the main alternatives to the project, the reason for choosing the proposed plans, a description of the significant effects the project will have on the environment, and a description of the measures that must be taken to avoid, reduce or compensate for those effects. Because developers have the best knowledge of the nature of their proposal, they have the responsibility of gathering the information and compiling the EIA. The decision-making authorities who have the power of giving consent to the developers plans have the responsibility of setting standards for approval or disapproval and ensuring that the developers EIA complies with the law. Further, they are obligated, by statute, to incorporate the EIA into their decision-making process. Also, Article 10 of the Directive states that the authorities must respect existing regulations and practices regarding industrial and commercial secrecy. Finally, the Directive envisions an active role for the public. In addition to supplying the decision-makers with information regarding the impact a project will have on the local environment, the public may have an opportunity to suggest alternatives and to pursue judicial action in order to request a review of consent. Further particularities of public participation and involvement are to be determined by the individual Member States. 2.1.2.4. The National Defense Project Exception to Directive 85/337/EEC The effectiveness of the Directive in preventing environmental harms is undercut by the exception it gives to national defense projects. It is reasonable to infer that this exception reflects two assumptions. The first assumption, explicitly mentioned in the Directive, is that national legislative processes will ensure that defense projects comply with the Directive. No rationale is provided for this assumption except for the implied reasoning that national legislators share the concerns of the Directive and are able to guide national legislation accordingly. The second assumption appears to be that the confidentiality of Member States national security matters would be compro