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The Myth and Reality of Transboundary Environmental Impact Assessment

Published online by Cambridge University Press:  27 February 2017

John H. Knox
Affiliation:
Pennsylvania State University, Dickinson School of Law

Extract

The dominant story of transboundary environmental impact assessment in international law has the following elements: (1) customary international law prohibits transboundary pollution; (2) according to the classic version of this prohibition, contained in Principle 21 of the 1972 Stockholm Declaration, states must ensure that activities within their territory or under their control do not harm the environment beyond their territory; (3) to ensure that activities within their jurisdiction will not cause transboundary harm, states must assess the potential transboundary effects of the activities; and (4) to that end, states enter into international agreements requiring them to carry out transboundary environmental impact assessment (transboundary EIA) for activities that might cause transboundary harm.

Type
Research Article
Copyright
Copyright © American Society of International Law 2002

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References

1 Bodansky, Daniel, Customary (and Not So Customary) International Environmental Law, 3 Ind. J. Global Legal Stud. 105, 116 (1995)Google Scholar.

2 The most important of these agreements is the Convention on Environmental Impact in a Transboundary Context, Feb. 25, 1991, 30 ILM 800 (1991), known as the Espoo Convention, which is open to member states of the United Nations Economic Commission for Europe (UNECE). The three North American states are close to completing an agreement that would institute transboundary EIA throughout North America. North American Commission for Environmental Cooperation [NACEC], Draft North American Agreement on Transboundary Environmental Impact Assessment (derestricted Oct. 21, 1997), at <http://www.cec.org/pubs_info_resources/law_treat_agree/> [hereinafter Draft North American Agreement].

3 Draft Articles on Prevention of Transboundary Harm from Hazardous Activities [with commentary], in Report of the International Law Commission, Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 370-436, UN Doc. A/56/10 (2001) [hereinafter ILC Draft Articles].

4 UN Conference on the Human Environment, Stockholm Declaration, June 16, 1972, UN Doc. A/CONF.48/14, princ. 21, 11 ILM 1416 (1972). The nations of the world reaffirmed Principle 21 in only slightly modified form as Principle 2 of the 1992 Rio Declaration. See UN Conference on Environment and Development, Rio Declaration on Environment and Development, June 14, 1992, UN Doc. A/CONF.151/5/Rev.1, princ. 2, 31 ILM 874 (1992). I will follow the usual custom in continuing to refer to the principle as Principle 21 rather than Principle 2. Principle 21 is usually considered to be the most authoritative expression of the principle that states should prevent transboundary harm, but there are other important sources, such as the Trail Smelter arbitration. Trail Smelter Case (U.S. v. Can.), 3 R.I.A.A. 1905 (1938 & 1941).

5 Kiss, Alexandre & Shelton, Dinah, International Environmental Law 130 (1991)Google Scholar; Sands, Philippe, Principles of International Environmental Law 190 (1995)Google Scholar.

6 Hunter, David, Salzman, James, & Zaelke, Durwood, International Environmental Law And Policy 321, 345 (1998)Google Scholar; Edith Brown Weiss, Stephen, C. Daniel, McCaffrey Magraw, Barstow, C, Paul. Szasz, & E, Robert. Lutz, , International Environmental Law and Policy 317 (1998)Google Scholar [hereinafter Weiss Et Al. ].

7 Wirth, David, The Rio Declaration on Environment and Development: Two Steps Forward and One Back, or Vice Versa? 29 GA. L. Rev. 599, 620 (1995)Google Scholar; Rüdiger, Wolfrum, Purposes and Principles of International Environmental Law, 1990 Google Scholar Ger.Y.B. Int’l L. 308, 310.

8 Sands, supra note 5, at 186; Weiss et al., supra note 6, at 316.

9 But see L, Jeffrey. Dunoff, , Institutional Misfits: The GATT, the ICJ & Trade-Environment Disputes, 15 Mich. J. Int’l L. 1043, 1094 (1994)Google Scholar (highlighting contradiction between the sovereign right to exploit resources and the responsibility not to allow transboundary harm).

10 B, Louis. Sohn, , The Stockholm Declaration on the Human Environment, 14 Harv. Int’l L. J. 423, 492 (1973)Google Scholar (citing statement of Canadian delegation that the “principle reflects existing rules of international law, the first element in it stressing the rights of states, ‘while the second element made it clear that those rights must be limited or balanced by the responsibility to ensure that the exercise of rights did not result in damage to others’”).

11 Schachter, Oscar, The Emergence of International Environmental Law, 44 J. Int’l Aff. 457, 463 (1991)Google Scholar; see also Bodansky, supra note 1, at 110-11 (“Although I am unaware of any systematic empirical study of this issue, transboundary pollution seems much more the rule than the exception in interstate relations. Pollutants continuously travel across most international borders through the air and by rivers and ocean currents.”); Schachter, supra, at 462 (“On its own terms, [Principle 21 ] has not become state practice: States generally do not ‘ensure that the activities within their jurisdiction do not cause damage’ to the environments of others.”).

12 E.g., E, Sanford. Gaines, , Taking Responsibility for Transboundary Environmental Effects, 14 Hastings Int’l & Comp. L. Rev. 781, 79697 (1991)Google Scholar.

13 E.g., UN Secretary-General, Rio Declaration on Environment and Development: Application and Implementation, UN Doc. E/CN. 17/1997/8, para. 23 [hereinafter Report of the Secretary-General] (“The exact scope and implications of [Rio] principle 2 are not clearly determined yet. Certainly not all instances of transboundary damage resulting from activities within a State’s territory can be prevented or are unlawful.”).

14 For examples of substantial, see Experts Group on Environmental Law of the World Commission on Environment and Development, Environmental Protection and Sustainable Development: Legal Principles and Recommendations 75 (Art. 10) (1987) [hereinafter WCED Experts Group] international Law Association, Rules of International Law Applicable to Transfrontier Pollution, Art. 3(1), in 60 ILA, Conference Report (1982). For an example of significant, see Restatement (Third) of the Foreign Relations Law of the United States §601 (1987) [hereinafter Restatement]. See also Sachariew, Kamen, The Definition of Thresholds of Tolerance for Transboundary Environmental Injury Under International Law: Development and Present Status, 37 Neth. Int’l L. Rev. 193, 196 (1990)CrossRefGoogle Scholar (concluding that since the Stockholm Conference, “significant” is the most common term “used to describe the threshold of tolerable transboundary environmental harm or interference”).

15 See, e.g., Handl, nther, National Uses of Transboundary Air Resources: The International Entitlement Issue Reconsidered, 26 Nat’l Res. J. 405, 429 (1986)Google Scholar. The distinction between the two approaches is not always clear. For example, it is unclear whether the Restatement endorses due diligence or a strict obligation of result. Restatement, supra note 14, §601(1) (providing that a state is obliged “to ensure that activities within its jurisdiction or control . . . are conducted so as not to cause significant injury,” but qualifying the obligation with the phrase “to the extent practicable under the circumstances”); see also D, David. Caron, , The Law of the Environment: A Symbolic Step of Modest Value, 14 Yale J. Int’l L. 528, 536 (1989)Google Scholar (analyzing §601(1)).

16 For example, some areas of conduct might be subject to a strict obligation of result, while others would be subject only to an obligation of due diligence. See Boyle, Alan, State Responsibility and International Liability for Injurious Consequences of Acts Not Prohibited by International Law: A Necessary Distinction? 39 Int’l & Comp. L.Q. 1, 1415 (1990)Google Scholar.

17 Riccardo, Pisillo-Mazzeschi, Forms of International Responsibility for Environmental Harm, in International Responsibility For Environmental Harm 15, 24 (Francesco Francioni & Tullio Scovazzi eds., 1991)Google Scholar.

18 See Developments in the LawInternational Environmental Law, 104 Harv. L. Rev. 1484, 1508 (1991).

19 See WCED Experts Group, supra note 14, at 75 (defining “substantial harm” as “harm which is not minor or insignificant”).

20 Gaines, supra note 12, at 796 (“[I]n both domestic American usage and international law, the term ‘substantial’ connotes a magnitude of harm that is a quantum step greater than merely ‘not insignificant.’”).

21 Restatement, supra note 14, §601 cmt. c (“The word ‘significant’ excludes minor incidents causing minimal damage.”).

22 Bodansky, supra note 1, at 114—16.

23 See Restatement, supra note 14, §§601 (3), 602 (1). Assessing the amount of compensable damage would raise another complicated set of issues. Compare Günther, Handl, Territorial Sovereignty and the Problem of Transnational Pollution, 69 AJIL 50, 75 (1975)Google Scholar (material damage, rather than “moral injury,” is necessary for state responsibility for transboundary environmental harm), with P, Alfred. Rubin, , Pollution by Analogy: The Trail Smelter Arbitration, 50 Or. L. Rev. 259, 27374 (1971)Google Scholar (suggesting that state responsibility for transboundary pollution should include intangible injury).

24 It might be more accurate to call it liability beyond responsibility, since the ILC seems to contemplate that breaches of Principle 21 would give rise to state responsibility. See Boyle, Alan, Codification of International Environmental Law and the International Law Commission: Injurious Consequences Revisited, in International Law and Sustainable Development 61, 7679 (Alan Boyle & David Freestone eds., 1999)Google Scholar.

25 Stockholm Declaration, supra note 4, princ. 22.

26 Rio Declaration, supra note 4, princ. 13.

27 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226, 241-42, para. 29 (July 8) (emphasis added).

28 See ILC Draft Articles, supra note 3, at 378; Report of the Secretary-General, supra note 13, para. 23; Hunter, Salzman, & Zaelke, supra note 6, at 348.

29 But see Günther, Handl, The Environment: International Rights and Responsibilities, 74 ASIL Proc. 223, 224 (1980)Google Scholar (arguing that Principle 21 requires notification and consultation).

30 See, e.g., André, Nollkaemper, The Legal Regime For Transboundary Water Pollution: Between Discretion and Constraint 180 (1993)Google Scholar; WCED Experts Group, supra note 14, at 103; A, Catherine. Cooper, , The Management of International Environmental Disputes in the Context of Canada-United States Relations: A Survey and Evaluation of Techniques and Mechanisms, 1986 Google Scholar Can.Y.B. Int’l L. 247, 303; Pierre-Marie, Dupuy, Overview of the Existing Customary Legal Regime Regarding International Pollution, in International Law and Pollution 61, 6667 (Daniel Barstow Magraw ed., 1991)Google Scholar; Handl, supra note 29, at 224. Transboundary EIA usually refers to assessment by a state of the extraterritorial effects of activities carried out within its territory, and this article primarily focuses on agreements that concern that type of assessment. Transboundary EIA may also include assessing the effects of activities that are under the state’s control but are carried out extraterritorially, for example in global commons areas.

31 See N, Phoebe. Okowa, , Procedural Obligations in International Environmental Agreements, 1996 Brit.Y.B. Int’l L. 275, 279 Google Scholar.

32 Okowa states that

it may be argued that [EIAs] may be a relevant factor in determining whether a State has acted with the requisite degree of diligence in discharging its customary law or treaty-based duty to prevent environmental harm. A State that fails to assess the impact of proposed activities on the territories of other States can hardly claim that it has taken all practicable measures with a view to preventing environmental damage.

Id. at 280 (footnote omitted).

33 Id. at 302 (footnote omitted); see also W, Patricia. Birnie, Alan E. Boyle, , International Law and the Environment 96 (1992)Google Scholar (“The object of prior assessment is to enable ‘appropriate’ measures to be taken to mitigate or prevent pollution before it occurs.”); Robinson, N. A., EIA Abroad: The Comparative and Transnational Experience, in Environmental Analysis: The NEPA Experience 679, 693 (Stephen G. Hildebrand & Johnnie B. Cannon eds., 1993)Google Scholar (“The EIA is the way to ensure that no state acts in a manner that harms the environment of another state, a guideline that all states are required to adhere to under international law . . .”).

34 The following description of domestic EIA draws generally on several sources, including Environmental Assessment In Developing and Transitional Countries (Norman Lee & Clive George eds., 2000); 2 Handbook of Environmental Impact Assessment: Environmental Impact Assessment in Practice: Impact and Limitations (Judith Petts ed., 1999); UNEP’s New Way Forward: Environmental Law and Sustainable Development (Sun Lin & Lai Kurukulasuriya eds., 1995); Christopher Wood, Environmental Impact Assessment: A Comparative Review (1995).

35 42 U.S.C. §§4321-4370f (2000).

36 Donnelly, Annie, Barry, Dalal-Clayton, & Hughes, Ross, A Directory of Impact Assessment Guidelines (2d ed. 1998)Google Scholar (listing impact assessment guidelines from over ninety countries); Sadler, Barry, Environmental Assessment in A Changing World: Evaluating Practice To Improve Performance 25 (1996)Google Scholar (estimating that more than one hundred countries have national EIA systems); Yeater, Marceil & Kurukulasuriya, Lai, Environmental Impact Assessment Legislation in Developing Countries, in UNEP’S New Way Forward, supra note 34, at 257, 259 Google Scholar (estimating that about seventy developing countries have EIA legislation of some kind).

37 Rio Declaration, supra note 4, princ. 17.

38 See Robinson, supra note 33, at 679. But see ASEAN Agreement on the Conservation of Nature and Natural Resources, July 9, 1985, Art. 14, at <http://www.aseansec.org> (requiring domestic EIA).

39 Council Directive 85/337/EEC, 1985 O.J. (L 175) 40, at <http://europa.eu.int/eur-lex/en/index.html> [hereinafter Directive 85/337]. For a description of the background to Directive 85/337, see Rehbinder, Eckard & Stewart, Richard, Environmental Protection Policy 10408 (1985)Google Scholar. Directive 85/337 was modified in 1997 by Council Directive 97/11/EC, 1997 O.J. (L 73) 5. In addition to their effect on EC members, the directives have been influential in eastern European countries interested in harmonizing their laws with those of the Community. Urszula A. Rzeszot, Environmental Impact Assessment in Central and Eastern Europe, in 2 Handbook of Environmental Impact Assessment, supra note 34, at 123, 127.

40 UNEP Governing Council, Goals and Principles of Environmental Impact Assessment, Dec. 14/25, UN Doc. UNEP/GC/DEC/14/25 (1987) [hereinafter UNEP Guidelines].

41 Colin Rees, EA Procedures and Practice in the World Bank, in Environmental Assessment in Developing and Transitional Countries, supra note 34, at 243. The World Bank’s current EIA requirements are in Operational Manual OP 4.01 (1999), at <http://www.worldbank.org>. Other development banks also require EIA for their projects. William V. Kennedy, Environmental Impact Assessment and Multilateral Financial Institutions, in 2 Handbook of Environmental Impact Assessment, supra note 34, at 98. Since the banks generally require the borrower country to conduct the EIA, the effect has been to encourage developing countries to establish national EIA procedures. Elizabeth Brito & Iara Verocai, Environmental Impact Assessment in South and Central America, in id. at 183; Clive eorge, Comparative Review of Environmental Assessment Procedures and Practice, in Environmental Assessment in Developing and Transitional Countries, supra, at 35, 49.

42 Despite widespread legal provisions for some form of public participation, the degree of actual participation by the public in developing countries and countries in transition is relatively low. Judith etts, Public Participation and Environmental Impact Assessment, in 1 Handbook of Environmental Impact Assessment, supra note 34, Environmental Impact Assessment: Process, Methods And Potential 145, 153.

43 Many countries require EIA only for certain categories of projects, often according to a list set out in the domestic EIA law. In practice, many least-developed countries conduct EIA for projects only when it is required as a condition of international aid. Wood, supra note 34, at 303; George, supra note 41, at 49. In higher-income countries, the list of covered projects tends to be more inclusive and to include private as well as public projects. Some countries do not rely on lists, instead requiring EIA for all projects that meet a general standard. NEPA, for example, requires EIA for actions of the federal government that may “significantly” affect the environment. NEPA §102(2) (C), 42 U.S.C. §4332(2) (C) (2000).

In recent years, more countries have begun to consider expanding the scope of assessment to include policies, plans, and programs, rather than only projects. See UNEP, Environmental Impact Assessment: Issues, Trends and Practice 43-60 (1996); The Practice of Strategic Environmental Assessment (Riki Thérivel & Maria Rosário Partidário eds., 1996).

44 Although it is generally recognized that effective EIA should examine alternatives to the proposed project, EIA laws in many countries do not require the decision maker to consider alternatives. Again, this omission is particularly common in developing countries. Wood, supra note 34, at 303.

45 In the United States, government compliance with NEPA is subject to judicial review under the Administrative Procedure Act, 5 U.S.C. §§701-706 (2000), and federal courts have the authority to halt projects if NEPA’s procedural requirements have not been met. Most other countries have been reluctant to provide for similar judicial review. Some domestic EIA systems provide for administrative review independent of the decision maker, either by the environmental ministry (e.g., Denmark, Greece, Italy, Portugal, Spain) or by a panel of independent experts (e.g., Canada, the Netherlands). Wood, supra note 34, at 171-75; R. Coenen, NEPA’s Impact on Environmental Impact Assessment in European Community Member Countries, in Environmental Analysis, supra note 33, at 703, 709.

46 Ortolano, Leonard & Shepherd, Anne, Environmental Impact Assessment, in Environmental and Social Impact Assessment 3, 10 (Frank Vanclay & Daniel A. Bronstein eds., 1995)CrossRefGoogle Scholar.

47 According to Wood, supra note 34, at 2-3:

It should be emphasised that EIA is not a procedure for preventing actions with significant environmental impacts from being implemented. Rather the intention is that actions are authorised in the full knowledge of their environmental consequences. EIA takes place in a political context: it is therefore inevitable that economic, social or political factors will outweigh environmental factors in many instances.

48 E.g., NEPA §101, 42 U.S.C. §4331 (2000); Directive 85/337, supra note 39, pmbl.

49 See George, Clive, Environmental Impact Prediction and Evaluation, in Environmental Assessment in Developing and Transitional Countries, supra note 34, at 85, 91 Google Scholar (“normal decision-making processes do not cater for” transboundary impacts); see also 1 UNEP/UNDP Joint Project on Environmental Law and Institutions in Africa, Compendium of Environmental Laws of African Countries: Framework Laws and EIA Regulations (1996) (of twenty African countries with EIA laws or EIA provisions in framework laws included in the compendium, only Burkina Faso, the Gambia, Malawi, and Nigeria had provisions on transboundary EIA); European Bank For Reconstruction and Development, Environmental Impact Assessment Legislation (1994) (of seven central and eastern European countries that had adopted EIA laws as of 1993, only the Czech Republic and Slovenia had provisions on transboundary EIA). France and the Netherlands were two of the first European countries to enact EIA laws, but neither provided for transboundary EIA until the early 1990s, when they did so pursuant to Directive 85/337. 7 EC Commission, Implementation of Directive 85/337/EEC, Member State Annexes 81, 197-98, COM (93) 28 final. But see Reminder & Stewart, supra note 39, at 169-70 (stating as of 1985 that French courts had taken the view that domestic administrative decisions must consider transboundary environmental effects, and that a similar view was “gaining ground” in the Netherlands). EIA laws that do not provide for transboundary EIA typically do not expressly exclude transboundary effects from consideration, and so leave open at least a theoretical possibility that general references in the law to environmental effects might be construed to include transboundary effects.

50 For scholarly views, see, for example, R, Daniel. Nepalaw, Mandelker and Litigation, §5.04 (2d ed. 2000); R, Joan. Goldfarb, , Extraterritorial Compliance with NEPA amid the Current Wave of Environmental Alarm, 18 B.C. Envtl. Aff. L. Rev. 543 (1991)Google Scholar; E, Jeffrey. Gonzalez-Perez, & A, Douglas. Klein, , The International Reach of the Environmental Impact Statement Requirement of the National Environmental Policy Act, 62 Geo. Wash. L. Rev. 757 (1994)Google Scholar.

For judicial views, compare Environmental Defense Fund v. Massey, 986 F.2d 528 (D.C. Cir. 1993) (NEPA applies to actions of National Science Foundation in Antarctica), with NEPA Coalition of Japan v. Aspin, 837 F.Supp. 466 (D.D.C. 1993) (NEPA does not require EIA of U.S. military installations in Japan), and Greenpeace USA v. Stone, 748 F.Supp. 749 (D. Haw. 1990) (NEPA does not require EIA of U.S. Army transportation of chemical weapons from Germany to the South Pacific). Some courts have avoided deciding the issue by assuming that NEPA applies. See, e.g., Swinomish Tribal Cmty. v. Fed. Energy Regulatory Comm’n, 627 F.2d 499 (D.C. Cir. 1980) (tacitly assuming that NEPA applies to effects in Canada of raising dam on Skagit River); Sierra Club v. Adams, 578 F.2d 389 (D.C. Cir. 1978) (expressly assuming that NEPA applies to construction of highway in Panama); Wilderness Soc’y v. Morton, 463 F.2d 1261 (D.C. Cir. 1972) (tacitly assuming that NEPA applies to Alaskan oil pipeline’s impacts in Canada); Nat’l Org. for Reform of Marijuana Laws (NORML) v. U.S. Dep’t of State, 452 F.Supp. 1226 (D.D.C. 1978) (expressly assuming that NEPA applies to U.S. involvement in herbicide spraying of marijuana and poppy plants in Mexico).

As for the executive branch, in 1979 President Carter issued an executive order requiring assessment of extraterritorial impacts of certain types of actions with extraterritorial effects. Exec. Order No. 12, 114, 44 Fed. Reg. 1957 (Jan. 4, 1979), reprinted in 18 ILM 154 (1979). The order was intended to resolve a dispute between the Council on Environmental Quality (the federal agency responsible for overseeing implementation of NEPA), which has championed the extraterritorial application of NEPA, and the Departments of State and Defense, which have opposed it. E, Sanford. Gaines, , “Environmental Effects Abroad of Major Federal Actions”: An Executive Order Ordains a National Policy, 3 Harv. Envtl. L. Rev. 136 (1979)Google Scholar. The order has been criticized as having a limited, unclear scope, failing to provide for judicial review, and failing to resolve the agencies’ dispute. General Accounting Office, International Environment: Improved Procedures Needed for Environmental Assessments of U.S. Actions Abroad, GAO/RCED-94-55 (Feb. 1994); A, Karen. Klick, , The Extraterritorial Reach of NEPA’s EIS Requirement After Environmental Defense Fund v. Massey, 44 Am. U. L. Rev. 291, 30103 (1994)Google Scholar.

In 1997 the Council on Environmental Quality issued “guidance” stating that whenever federal agencies prepare an EIA for a proposed action in the United States, they must analyze the action’s reasonably foreseeable transboundary effects. Despite limiting its scope to EIA of domestic actions’ extraterritorial effects, which presumably raise fewer foreign-policy concerns than EIA of extraterritorial actions, the guidance did not receive the concurrence of the State and Defense Departments. Its legal effect is therefore doubtful, since those departments do not believe that the CEQ has unilateral authority to decide whether NEPA applies extraterritorially. See V, Karen. Fair, ,Environmental Compliance in Contingency Operations: In Search of a Standard’? 157 Mil. L. Rev. 112, 146 n.136 (1998)Google Scholar.

51 Directive 85/337, supra note 39, Art. 7. The UNEP Guidelines for EIA contain a similar provision, as does the EIA law of Slovenia. See UNEP Guidelines, supra note 40, princ. 12; Slovenia Environmental Protection Act, Law No. 801-01/90-2/107, June 2, 1993, Art. 63, reprinted in European Bank For Reconstruction and Development, supra note 49, at 229, 238.

52 See Nollkaemper, supra note 30, at 193. Nollkaemper notes that some scholars have argued that the obligation to forward EIAs to possibly affected states implies a duty to gather information on transboundary effects, but says, “This conclusion requires a very extensive interpretation of article 7 . . . for which there is little support.” Id.

53 Directive 85/337, supra note 39, Art. 8.

54 Thus, Nollkaemper states:

In the Netherlands, the results of the exchange of information and the consultations are treated on a par with the views of concerned citizens, in particular as regards the motivation of the final decision and the possibility of juridical review of the adequacy of the decision in view of the information that has been obtained. However, this is not mandated by the Directive.

Nollkaemper, supra note 30, at 195 (footnote omitted).

55 Implementation of Directive 85/337/EEC, supra note 49, at 29 (“Only a minority of Member States (Denmark, Germany, Greece, Ireland, Spain) appear, as at July 1991, to have made some formal provision for consultation of other Member States over trans-frontier impacts . . . . This is one of the least satisfactory areas of transposition of the Directive . . .”).

56 EIAs for projects subject to assessment under Canadian law are required to address transboundary as well as domestic effects, since the law defines “environmental effect” to include “any change that the project may cause in the environment. . . whether any such change occurs within or outside Canada.” Canadian Environmental Assessment Act, ch. 37, §2(1), 1992 S.C. 938 [hereinafter CEAA], Moreover, Canadian law gives the ministers of environment and foreign affairs the discretionary power to require assessment of projects that may cause significant transboundary effects, even if the projects do not otherwise fall within the scope of the EIA law. Id. §§47, 49, at 966, 971.

57 See E. D. Smith, Future Challenges of NEPA: A Panel Discussion, in Environmental Analysis, supra note 33, at 81, 84 (quoting Dinah Bear, general counsel of the Council on Environmental Quality, as saying, “[I]t is environmental imperialism for us to undertake actions in other countries and not use the same degree of care on analyzing the environmental impacts as we do at home.”).

58 OECD Council, Implementation of a Regime of Equal Right of Access and Non-Discrimination in Relation to Transfrontier Pollution, Recommendation C(77)28(Final), annex, princ. 3(a) (May 17, 1977), reprinted in OECD, OECD and the Environment 150, 152 (1986); see also OECD Council, Principles Concerning Transfrontier Pollution, Recommendation C(74)224 (Nov. 14, 1974), reprinted in id. at 142.

59 OECD Recommendation C(77)28, supra note 58, annex, princ. 4; see also OECD Council, Equal Right of Access in Relation to Transfrontier Pollution, Recommendation C(76) 55 (Final) (May 11, 1976), reprinted in OECD and the Environment, supra note 58, at 148; OECD Environment Committee, Report on Equal Right of Access in Relation to Transfrontier Pollution, reprinted in OECD, Legal Aspects of Transfrontier Pollution 23, 28 (1977). Paragraph 14 of the latter states:

Although the introduction of equal right of access is mainly a procedural matter, it is a necessary element for the implementation of the substantive principle of non-discrimination. It would serve no purpose if “foreign persons” are given equal treatment in substantive law if they are not also given equal right of access. And vice versa, it would serve no purpose if “foreign persons” had the benefit of the same legal channels as “nationals” if the actual treatment in substantive law which they subsequently received remained discriminatory in character.

60 See supra note 2.

61 ILC Draft Articles, supra note 3. Two other regional agreements call for transboundary EIA in very general terms. ASEAN Agreement on the Conservation of Nature and Natural Resources, supra note 38, Art. 19(2) (c); Nordic Convention on the Protection of the Environment, Feb. 9, 1974, Art. 6, 1092 UNTS 279, 13 ILM 591 (1974). In addition, several agreements require EIA for projects that might affect global commons areas. Madrid Protocol on Environmental Protection to the Antarctic Treaty, Oct. 4, 1991, Art. 8 & Annex 1, 30 ILM 1461 (1991); United Nations Convention on the Law of the Sea, opened for signature Dec. 10, 1982, Art. 206, 1833 UNTS 397; Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, Nov. 25, 1986, Art. 16, 26 ILM 38 (1987); Convention for the Protection and Development of the Marine Environment of the Wider Caribbean Region, Mar. 24, 1983, Art. 12, 22 ILM 227 (1983); Convention for Co-operation in the Protection and Development of the Marine and Coastal Environment of the West and Central African Region, Mar. 23, 1981, Art. 13, 20 ILM 746 (1981); Kuwait Regional Convention for Co-operation on the Protection of the Marine Environment from Pollution, Apr. 24, 1978, Art. XI, 1140 UNTS 133, 17 ILM 511(1978). And the Biodiversity Convention encourages its parties to require EIA for projects likely to have a significant effect on “biological diversity,” which, given the broad scope of that term, might be read to include transboundary effects. Convention on Biological Diversity, June 5, 1992, Art. 14(1) (a), 31 ILM 818 (1992). Most of these EIA provisions are very general; the one exception is Annex I to the Madrid Protocol. Annex I is similar to domestic EIA laws and the regional EIA agreements because it provides detailed procedures for EIA for proposed activities and requires the decision maker to take the EIA into account in deciding whether the activity should proceed, and because it does not prohibit all activities revealed by the EIA to cause environmental harm. See Blay, S. K. N. New Trends in the Protection of the Antarctic Environment: The 1991 Madrid Protocol, 86 AJIL 377, 390-92 (1992)Google Scholar.

62 Espoo Convention, supra note 2, Arts. 16, 17.

63 UNECE, Status of Ratification of the Convention (Aug. 1, 2001), at <http://www.unece.org/env/eia/ratification.htm>.

64 Birnie & Boyle, supra note 33, at 96; Nollkaemper, supra note 30, at 192; see also Ebbesson, Jonas, Innovative Elements and Expected Effectiveness of the 1991 EIA Convention, 19 Envtl. Impact Assessment Rev. 47, 4950 (1999)Google Scholar (stating that the Convention brings EIA into the due diligence obligation to prevent significant transboundary harm, but also noting that the Convention draws on the principle of nondiscrimination).

65 The Convention follows Directive 85/337 particularly closely. D, Paul. McHugh, , The European Community Directive An Alternative Environmental Impact Assessment Procedure?’34 Nat. Resources J. 589, 618-19 (1994)Google Scholar.

66 Espoo Convention, supra note 2, Art. 1 (v). The Convention requires EIA, notification, consultation, and public participation only for “a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact.” Id., Art. 2(3) (assessment); Arts. 2(4), 3(1) (notification); Arts. 3(1), 5 (consultation); Arts. 2(6), 3(8), 4(2) (public participation). The Convention defines “proposed activity” as “any activity or any major change to an activity subject to a decision of a competent authority in accordance with an applicable national procedure.” Id., Art. l(v). “Competent authority” is defined as “the national authority or authorities designated by a Party as responsible for performing the tasks covered by this Convention and/or the authority or authorities entrusted by a Party with decision-making powers regarding a proposed activity.” Id., Art. 1 (ix).

67 Principle 21 would make states responsible for the transboundary environmental effects of all “activities within their jurisdiction and control,” language that by its terms would include private actions within the states’ territory. Stockholm Declaration, supra note 4, princ. 21.

68 Unece, Current Policies, Strategies and Aspects of Environmental Impact Assessment in A Transboundary Context 8-9, 26-35, UN Doc. ECE/CEP/9, UN Sales No. E.96.II.E.11 (1996). Directive 85/337 requires EIA only for nine listed categories of projects. See Directive 85/337, supra note 39, Annex I. The Espoo Convention includes each of those categories, often in exactly the same language as the directive, and adds several more categories. Espoo Convention, supra note 2, app. I.

69 NEPA requires EIA for proposals for “major Federal actions significantly affecting the quality of the human environment,” NEPA § 102 (a) (C), 42 U.S.C. §4332 (2) (C) (2000), that is, actions conducted, financed, regulated, or approved by federal agencies. See 40 C.F.R. §1508.18(a) (2001). The Environmental Assessment and Review Process Guidelines Order (EARP), 188 C. Gaz. 2794 (Nov. 7, 1984), Canada’s EIA law at the time of the Espoo negotiations, similarly applied only to projects with federal government involvement. A, William. Tilleman, , Public Participation in the Environmental Assessment Process: A Comparative Study of Impact Assessment in Canada, the United States and the European Community, 33 Colum.J. Transnat’l L. 337, 372-73, 42223 (1995)Google Scholar. CEAA, which replaced EARP in 1995, continues to require environmental assessments only for projects in which a federal authority is involved, either by carrying out the project or enabling it to be carried out. CEAA, supra note 56, §5(1).

70 Compare Espoo Convention, supra note 2, app. II, with Directive 85/337, supra note 39, app. III.

71 Compare Espoo Convention, supra note 2, app. II (requiring a “description, where appropriate, of reasonable alternatives . . . to the proposed activity”), with Directive 85/337, supra note 39, Annex III, para. 2 (requiring, “ [w] here appropriate, an outline of the main alternatives studied by the developer”). Similarly, Article 2(7) of the Convention encourages, but does not require, strategic environmental assessment, which most UNECE countries had not adopted at the time the Convention was negotiated. See UNECE, Application of Environmental Impact Assessment Principles to Policies, Plans and Programmes 1, 44-48, UN Sales No. E.92.II.E.28 (1992).

72 Espoo Convention, supra note 2, Art. 2(6).

73 Directive 85/337, supra note 39, Art. 7.

74 See text at notes 51-55 supra. Other EIA laws, such as NEPA, are often even less clear on whether and how they apply to transboundary effects. See text at note 50 supra.

75 UNECE, supra note 68, at 45 (“[T]he EIA will, in practice, follow the domestic procedures of the Party of origin; and transboundary cooperation under Articles 2 to 7 of the Convention will take place within the framework of those procedures.”).

76 Espoo Convention, supra note 2, Arts. 3(1), (2), (3),&6(1).

77 H., Arts. 3(8), 4(2).

78 Id., Art. 6(1).

79 Id., Art. 3(1).

80 UNECE, supra note 68, at 43.

81 Espoo Convention, supra note 2, Art. 2(6).

82 UNECE, supra note 68, at 68.

83 The Convention also imposes one additional obligation on affected states—to provide information about their environment to the state of origin when necessary for the preparation of the EIA. Espoo Convention, supra note 2, Art. 3(6).

84 Id., Arts. 2(5), 3(7).

85 Id., Art. 3(7).

86 Id., Art. 5. The Convention also requires states to enter into such consultations if “post-project analysis” indicates that a project appears to have a significant adverse transboundary impact. Id., Art. 7(2).

87 See text at note 45 supra.

88 Espoo Convention, supra note 2, Art. 6(1).

89 R, Kevin. Gray, , International Environmental Impact Assessment: Potential/or a Multilateral Environmental Agreement, 11 Colo. J. Int’l Envtl. L. & Pol’y 83, 103 (2000)Google Scholar (“The outcome of an EIA must be taken into account . . . . [but] the wording falls short of mandating action recommended in the EIA.”); Okowa, supra note 31, at 288 (the Espoo Convention does not “require [] a State to refrain from the conduct of an activity should the consultations or conciliation prove unsuccessful”).

90 The Convention contains only a standard, noncompulsory provision for the settlement of disputes. Espoo Convention, supra note 2, Art. 15. The nonbinding inquiry commission established by Article 3 (7) can address only whether projects fall within the scope of the Convention, not the parties’ obligations, if any, under Article 2(1) with respect to such projects.

91 See text at notes 46-48 supra.

92 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (“[I]t is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process.... If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs.” (citation omitted)); Grant, Malcolm, Implementation of the EC Directive on Environmental Impact Assessment, 4 Conn.J. Int’l L. 463, 467 (1989)Google Scholar (stating that projects “with significant environmentally harmful effects may still be granted consent. The EC Directive does not cut across the right of Member States to exercise political, social and economic judgments in their broadest sense; its effect is limited to increasing the significance of environmental effects in the decision-making process.”).

93 The NACEC was created by the North American Agreement on Environmental Cooperation (the environmental side agreement to NAFTA), which envisages that the parties would negotiate an agreement on transboundary EIA by 1997. North American Agreement on Environmental Cooperation, Sept. 14, 1993, Can.-Mex.-U.S., Art. 10(7), 32 ILM 1480 (1993) [hereinafter NAAEC].

94 Draft North American Agreement, supra note 2. The draft, which was published in 1997, was prepared by an “experts group” before negotiations officially commenced. But the experts group was composed of representatives of the parties and the draft has been the basis for subsequent negotiations. Hogue, Cheryl, NAFTA: Canada, Mexico, United States Finishing Pact on Transboundary Impact Assessment, Int’l Env’t Daily (BNA), Feb. 25, 1999 Google Scholar, available in WL, BNA-IED.

95 The parties have made explicit their intent to extend their domestic EIA laws rather than create new rules for transboundary harm. Hogue, Cheryl, NAFTA: Nations Developing Process for Assessing Environmental Impacts That Cross Borders, Int’l Env’t Daily (BNA), Oct. 27, 1995 Google Scholar, available m WL, Bna-Ied (quoting Greg Block, an official of the NACEC Secretariat, as saving, “The NAFTA nations are committed to working through their existing federal laws requiring environmental impact assessment—rather than creating new ones for transboundary pollution or other environmental harm that crosses borders.”); see also NACEC Council Res. 95-7 (Oct. 13, 1995), at <http://www.cec.org/who_we_are/council/resolutions> (setting out guidelines for negotiations, which include “maximizing wherever possible the utilization of existing processes, structures or mechanisms,” and “build[ing] on successful procedures or mechanisms in place at various levels of government”). The parties’ national EIA laws are NEPA, supra note 35, CEAA, supra note 56, and Mexico’s Ley General del Equilibrio Ecológico y la Protectión al Ambiente, Arts. 28-35, D.O., 28 de enero de 1988, as amended, D.O., 13 de diciembre de 1996 [hereinafter LGEEPA]. For a comparative overview of the three EIA laws, see Secretariat, NACEC, Environmental Impact Assessment: Law and Practice in North America, in 3 N. Am. Envtl. L. & Pol’y 3 (1999)Google Scholar. The NACEC Secretariat prepared this study as background information for the negotiations.

96 Draft North American Agreement, supra note 2, Art. 2.1 (a). The party of origin would also be required to provide notifications of additional projects if it determines that they “have the potential to cause significant adverse transboundary environmental impacts.” Id., Art. 2.1(b).

97 Id., Art. 1 (stating that definition of “proposed project” is “to be elaborated”).

98 NAAEC, supra note 93, Art. 10(7) (a).

99 LGEEPA, supra note 95, Art. 28; see also NACEC Secretariat, supra note 95, at 28. The Mexican list also includes a catch-all category— “[w]orks or activities under federal jurisdiction that may cause serious and irreparable ecological imbalances, [or] damage to public health or ecosystems”—with respect to which the federal government has discretion to decide whether the EIA procedures should apply. Id. at 29.

100 See note 69 supra.

101 The proposal to site a low-level radioactive waste disposal facility in Sierra Blanca, Texas, was particularly controversial. Moore, Molly, Mexico Factions Unite in Fury at Texas Dump; Planned Site Near Border Called “Racism,Wash. Post, Sept. 19, 1998 Google Scholar, at A18. The Texas environmental agency eventually denied a permit to the facility. Cevallos, Diego, Broad Social Movement Halts Nuclear Dump, Inter Press Service, Oct. 23, 1998 Google Scholar, available in LEXIS, News Library, Wires File.

102 NAFTA: Mexico Denounces U.S. Position on NAFTA Impact Assessment Guidelines, Int’l Env’t Daily (BNA), May 21, 1998, available in WL, Bna-Ied (Mexican officials “criticized U.S. environmental authorities for refusing to include state projects . . . , saying that this could then facilitate the establishment of environmentally harmful projects on the U.S.-Mexican border,” and citing the “approval process for the Sierra Blanca radioactive confinement site in Texas [as] one recent example of the lack of effective Mexican participation in state-generated projects in the United States”); NAFTA: U.S., Mexico Still Need to Resolve Reciprocity Issues in Transboundary EIAs, id., July 2, 1998 [hereinafter Reciprocity Issues] (reporting statement by a Mexican official “that Mexico will refuse to enforce the agreement unless all the states along the U.S. border commit to signing a formal accord in which they agree to subscribe to the [transboundary EIA agreement]”).

103 LGEEPA, supra note 95, Art. 28(IV) (requiring EIA for hazardous waste facilities); Reciprocity Issues, supra note 102 (quoting Mexican official as saving, “What is clear is that if we don’t have the correct levels of reciprocity, the agreement should not enter into effect.”).

104 It is questionable whether the federal government could constitutionally require state governments to carry out such EIAs, see New York v. United States, 504 U.S. 144 (1992),but an international agreement could provide a constitutional basis for legislation enabling the federal government itself to conduct the EIAs. See Missouri v. Holland, 252 U.S. 416 (1920).

105 See Letter to Warren Christopher and Carol Browner from Directors of State Environmental Agencies in Alaska, Arizona, California, Idaho, Montana, New Mexico, North Dakota, Texas, and Washington (Aug. 29, 1996) (on file with author) [hereinafter Letter from Border Environmental Agencies] (“[T] he states believe the recommendations from the current [NA] CEC process should be limited to federal activities. . . . Federally imposed mandates for TEIA will not lead to the level of subnational transboundary cooperation needed to prevent or resolve cross-border environmental problems.”).

106 Compare Draft North American Agreement, supra note 2, Art. 10.1(a) & app. IV, with 40 C.F.R. pt. 1502 (2001) (setting out requirements for EIA under NEPA), NACEC Secretariat, supra note 95, at 12-15 (describing CEAA requirements), and id. at 30-33 (describing LGEEPA requirements).

107 Draft North American Agreement, supra note 2, Art. 10.1 (a).

108 Id., Arts. 3.1,11.1.

109 Id., Art. 12.1. NEPA regulations and CEAA provide substantial opportunities for public comment throughout the EIA process, sec40 C.F.R. §§1501.7(a)(1), 1503.1(a) (2001); CEAA, supra note 56, §§18(3), 19(2), 22, 34, at 951, 951, 954, 959, and require the government to take the public comments into consideration. See 40 C.F.R. §1503.4; CEAA, supra, §16(1), at 949. In Mexico, the provisions for public participation are less extensive. LGEEPA requires the federal government to publish a developer’s request for an environmental impact authorization. If a citizen requests that the federal government publish the environmental impact statement, the government may (but apparently is not required to) organize a public hearing at which the developer shall explain the project. Any interested party may make comments, which the federal government will record in its decision about the proposed project. LGEEPA, supra note 95, Art. 34; NACEC Secretariat, supra note 95, at 32-33. See also N, Heather. Stevenson, , Comment, Environmental Impact Assessment Laws in the. Nineties: Can the United States and Mexico Learn from Each Other? 32 U. Rich. L. Rev. 1675, 169798 (1999)Google Scholar, who states:

In preparing its resolution on the project, [the Mexican environmental agency] must address the public comments and any mitigation measures for environmental impacts proposed by members of the public. Draft environmental documents are published infrequently and only then on a voluntary basis. The public is invited to comment on an environmental impact assessment in Mexico at the end of the process, rather than being allowed to participate in the development of the impact analysis.

None of the countries’ provisions formally discriminate against foreign residents, but neither do they ensure that foreign residents may have equal access to the EIA procedures.

110 The agreement would still not resolve the entire “NEPA abroad” issue, see text at note 50 supra, both because the agreement might be implemented through a revised version of Executive Order 12, 114, supra note 50, rather than NEPA and because the agreement would not require the United States to conduct EIA for projects located outside its territory. See Draft North American Agreement, supra note 2, Art. 1 (definition of “transboundary environmental impact”).

111 See note 56 supra; NACEC Secretariat, supra note 95, at 13-14. The degree to which the agreement would change Mexican EIA practice is less clear. LGEEPA does not include projects that might cause transboundary environmental harm on its list of projects that require EIA. LGEEPA, supra note 95, Art. 28. A 1988 regulation implementing LGEEPA did include such projects on a list of those requiring EIA. Reglamento de la Ley General del Equilibrio Ecológico y la Protección al Ambiente en Materia de Impacto Ambiental, Art. 5, §XIII, D.O., 7 de junio de 1988; NACEC Secretariat, supra, at 27. But a regulation promulgated in 2000, which replaced the 1988 regulation, appears to omit such projects. Reglamento, de la Ley General del Equilibrio Ecológico y la Protección al Ambiente en Materia de Evaluación del Impacto Ambiental, Art. 5, D.O., 30 de mayo de 2000.Google Scholar

112 Draft North American Agreement, supra note 2, explanatory page.

113 As noted above, NEPA contains no substantive prohibition. See note 92 supra. In Canada, “[t]he results [of the EIA procedures] are advisory in nature, with the final decision on projects made by the federal department or agency with authority to undertake or provide support to the project.” NACEC Secretariat, supra note 95, at 8. And in Mexico, LGEEPA gives the federal government the power to deny an authorization on the basis of the environmental impacts of the project, but leaves the decision as to whether to do so within the government’s discretion. LGEEPA, supra note 95, Art. 35; NACEC Secretariat, supra, at 31; Stevenson, supra note 109, at 1696 n.114.

114 Report of the International Law Commission on the Work of Its Fiftieth Session, UN GAOR, 53d Sess., Supp. No. 10, ch. IV, at 11, UN Doc. A/53/10 (1998) [hereinafter 1998 ILC Report].

113 ILC Draft Articles, supra note 3.

116 Id, Art. 1.

117 The focus of the provision on “risk” and its limitation to activities not prohibited by international law might appear to exclude activities certain to cause significant transboundary harm. See Rao, P. S., First Report on Prevention of Transboundary Damage from Hazardous Activities, UN Doc. A/CN.4/487, para. 85 (1998)Google Scholar. This exclusion is consistent with the view of Principle 21 as an obligation of result. Assessment and notification of activities certain to cause significant transboundary harm would be pointless if the activities are simply prohibited by Principle 21; instead, the activities would give rise to state responsibility. See id., para. 78. It is less clear, however, how this exclusion comports with Principle 21 as an obligation of due diligence, which is the interpretation that the ILC has adopted. See ILC Draft Articles, supra note 3, at 390-96.

118 1998 ILC Report, supra note 114, Art. 1 commentary, para. 1, at 24-25. The ILC rejected including a list in its final reading, pointing out that any list would be underinclusive and could quickly become outdated. ILC Draft Articles, supra note 3, at 381. It also noted, however, that states might include such a list in regional agreements or national legislation “implementing obligations of prevention.” Id.

119 ILC Draft Articles, supra note 3, Art. 7. The ILC commentary on the article says that assessment “should contain an evaluation of the possible transboundary harmful impact of the activity,” and “should include the effects of the activity not only on persons and property, but also on the environment of other States.” Beyond those minimum requirements, “ [t]he specifics of what ought to be the content of assessment is left to the domestic laws of the State conducting such assessment.” Id. at 405.

120 Id., Art. 8(1) (the state of origin must provide the state likely to be affected by a project “timely notification of the risk and the assessment,” including the information on which the assessment is based, but the requirement is triggered only if the assessment itself “indicates a risk of causing significant transboundary harm”).

121 Id., Art. 13. The commentary on Article 13 makes clear that the term “public” as used in the article includes not only the public of the state of origin, but also “that of other States.” Id. at 422.

122 Id., Art. 15 (“ [A] State shall not discriminate on the basis of nationality or residence or place where the injury might occur, in granting to [persons exposed to the risk of significant transboundary harm as a result of an activity within the scope of the draft articles], in accordance with its legal system, access to judicial or other procedures to seek protection or other appropriate redress.”). This provision is stronger than the equivalent language in the regional agreements because it appears to prohibit discrimination against foreign residents or nationals with respect to any legal procedure that might provide “protection or other appropriate redress,” while the regional agreements provide only for nondiscriminatory access to the EIA procedure itself.

123 Id., Art. 3. The ILC commentary on the article indicates that a state’s primary obligation is to prevent all significant transboundary harm; “only in case this is not fully possible it should exert its best efforts to minimize the risk thereof.” Id. at 390-91.

124 For example, the ILC commentary on the article on assessment says: “This assessment enables the State to determine the extent and the nature of the risk involved in an activity and consequently the type of preventive measures it should take.” Id. at 402. In addition, the ILC would require prior state authorization for all activities within the scope of the articles, for the logical reason that such authorization is necessary to comply with the duty not to allow significant transboundary harm. See id., Art. 6; Rao, supra note 117, Part Two, UN Doc. A/CN.4/487/Add.1, para. 2.

125 See ILC Draft Articles, supra note 3, at 412 (commentary on Art. 9) (the state of origin is obligated to “take into account the interests of the States likely to be affected,” but is nevertheless “permitted to go ahead with the activity”). The lack of an obligation to cease the activity may be consistent with Principle 21, but only if the principle is viewed as giving rise to an obligation of due diligence rather than of result. See Boyle, supra note 24, at 78 (failure to carry out due diligence should require full compliance with that obligation, rather than cessation of otherwise lawful activity); Report of the International Law Commission on the Work of Its Fifty-second Session, UN GAOR, 55th Sess., Supp. No. 10, at 275, UN Doc. A/55/10 (2000) (“[T]he Special Rapporteur noted that none of the authorities he had surveyed had indicated that non-compliance with the obligation of due diligence made the activity itself prohibited.”).

126 ILC Draft Articles, supra note 3, Art. 9.

127 Id., Art. 10.

128 Alan Boyle suggests that the equitable balancing provision in the ILC draft may actually strengthen the protections of potentially affected states against transboundary pollution, but only if it is considered to be a new obligation in addition to “the existing obligation of due diligence.” Boyle, supra note 24, at 82. The more natural reading of the ILC draft, however, is that the equitable balancing process set out in Articles 9 and 10 would largely determine the content of the obligation to prevent transboundary harm in Article 3. Article 9 says that the states concerned must enter into consultations “with a view to achieving acceptable solutions regarding measures to be adopted in order to prevent significant transboundary harm or at any event to minimize the risk thereof” and requires the parties to seek those solutions “based on an equitable balance of interests” in light of the factors listed in Article 10. ILC Draft Articles, supra note 3, Art. 9. The italicized language is identical to the due diligence version of Principle 21 contained in Article 3. Moreover, the ILC commentary says that the measures to be taken to comply with Article 3 are the actions specified in the ILC Draft Articles. Id. at 391. Apart from procedural steps such as EIA, notification, and equal access, the only such actions are those required by Articles 9 and 10.

129 ILC Draft Articles, supra note 3, Art. 10(f).

130 The ILC commentary on this provision at first reading suggested a more traditional version of the nondiscrimination principle, by stating that the states concerned might take into account the domestic environmental standards of the state of origin, as well as of the affected state, and that if the standards of the state of origin were higher, the state of origin might have to apply those standards to the potential transboundary harm. 1998 ILC Report, supra note 114, Art. 12 commentary, para. 11, at 59.

131 See W, Thomas. Merrill, , Golden Rules for Transboundary Pollution, 46 Duke L. J. 931, 954 (1997)Google Scholar (“The alternative approach reflected in the OECD Principles . . . has been largely drowned out in the chorus of approval for the strict liability approach of the Trail Smelter arbitration and the Stockholm Declaration.”).

132 Rio Declaration, supra note 4. The nondiscrimination principle does sometimes appear in compilations of international principles but with much less emphasis than that accorded to Principle 21. See, e.g., WCED Experts Group, supra note 14, at 88 (Art. 13); UNEP Governing Council, Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States, princ. 13 (May 19, 1978), reprinted in 17 ILM 1097 (1978). The equal access aspect of the nondiscrimination principle has fared somewhat better. It appears, for example, in two recent multilateral agreements. UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), June 25, 1998, Art.3(9), 38 ILM 517 (1999); Convention on the Law of the Non-Navigational Uses of International Watercourses, May 21, 1997, Art. 32, 36 ILM 700 (1997).

133 See Merrill, supra note 131, at 980-81.

134 L, Richard. Revesz, , Federalism and Interstate Environmental Externalities, 144 U. Pa. L. Rev. 2341, 2346 (1996)Google Scholar.

135 Birnie & Boyle, supra note 33, at 111-12.

136 The standard was initially developed as a matter of federal common law by the Supreme Court in Missouri v. Illinois, 200 U.S. 496 (1906), and Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907)—decisions that were relied upon in the Trail Smelter arbitration, the direct precursor of Principle 21. Merrill, supra note 131, at 942-45, 949. Within the United States, the cases have been largely superseded by federal statutory law, which Professor Merrill argues continues to adhere to the same general standard. Id. at 954-57. Merrill also makes the interesting argument that the Supreme Court cases include unrecognized support for the nondiscrimination principle. Id. at 997-1004.

137 Human rights agreements set standards that go far beyond just prohibiting discrimination against foreigners; the Calvo Clause has long been rejected as adequate protection for investors’ rights; and national treatment, while still an integral part of trade agreements, is supplemented in some areas by absolute standards.

138 Merrill’s version of the nondiscrimination principle actually restricts the state of origin less than the OECD approach, since he would allow the state of origin (and the affected state) to argue that die applicable standard for transboundary harm is the domestic standard of the state of origin or of the affected state. Merrill, supra note 131, at 1008. Although he optimistically believes that states would agree on which standard to apply through an appellate- argument-like dialogue designed to determine which of the standards is most closely on point, id. at 1008-09, it seems likely that in practice the state of origin would always choose to apply whichever standard is weaker.

139 Id. at 958-61 (describing lack of international adjudications after Trail Smelter and failure of the Environmental Protection Agency to enforce federal statutory provisions against transboundary pollution); see also Revesz, supra note 134, at 2346-74 (describing failure of federal government to respond effectively to interstate air pollution).

140 Merrill, supra note 131, at 1007-13.

141 Id. at 1019.

142 Id. at 995-96.

143 Id. at 977.

144 Of course, there would be situations in which the principle would impose additional constraints. For example, when an area affected by transboundary pollution is of a type that would require additional limitations on the source of pollution under the law of the state of origin if it were within the territory of the state of origin (such as a national park), the nondiscrimination principle might require the additional limitations to be imposed. More generally, one might argue that the principle should preclude decisions to carry out harmful activities in locations or under circumstances in which most of their harm (that is, their harm subject to domestic regulation) would be transboundary rather than domestic. See Revesz, supra note 134, at 2350-54 (discussing possibility that sources of air pollution in U.S. states may export much of their pollution by using tall stacks and choosing locations near borders).

145 See text at notes 49-59 supra.

146 See pt. II supra.

147 For a description of the obstacles to equal access in North America, see NACEC Secretariat, Background Paper on Access to Courts and Administrative Agencies in Transboundary Pollution Matters, 4 N. Am. Envtl. L. & Pol’y 205 (2000). Equal access is more developed in Europe, although far from complete. It appears to be available to a greater degree in civil actions than in administrative proceedings. See Birnie & Boyle, supra note 33, at 198, 204; Rehbinder & Stewart, supra note 39, at 166-75.

148 Equal access in North America has been proposed but never adopted, at least at the federal level. In 1979 a joint working group of the American and Canadian Bar Associations prepared a draft treaty, based on the work of the OECD, which would provide for equal access in the two countries to judicial and administrative procedures for prevention of, and compensation for, harm caused by transboundary pollution. Despite endorsements by the bar associations, die governments ignored it. At the suggestion of the joint working group, the U.S. and Canadian institutions dedicated to the promotion of uniform laws drafted a Uniform Transboundary Pollution Reciprocal Access Act, which has been enacted by seven U.S. states and four Canadian provinces. NACEC Secretariat, supra note 147, at 301-06; A, Joel. Gullob, , Birth of the North American Transboundary Environmental Plaintiff: Transboundary Pollution and the 1979 Draft Treaty for Equal Access and Remedy, 15 Harv. Envtl. L. Rev. 85 (1991)Google Scholar. The NAFTA environmental side agreement calls on the parties to consider equal access again, see NAAEC, supra note 93, Art. 10(9), but to date they have taken no action beyond authorizing the secretariat’s “Background Paper” referred to in note 147 supra.

149 For this reason, the OECD Secretariat suggested that a nondiscrimination regime “might, at any rate initially, be put into effect between Countries with broadly similar environmental policies.” OECD Secretary-General, Report on the Implementation of a Regime of Equal Right of Access and Non-Discrimination in Relation to Transfrontier Pollution, para. 9, reprinted in Legal Aspects of Transfrontier Pollution, supra note 59, at 37, 39.

150 Espoo Convention, supra note 2, Art. 2(6).

151 Id., Arts. 3(8), 4(2), 6(1).

152 Although both elements of the ratchet—the specific standard based on existing domestic standards and the general requirement of nondiscrimination—seem highly useful, most protections in the EIA agreements include only one or the other. For example, the Espoo Convention includes specific requirements for the elements of an EIA, see id., Art. 4(1) & Annex II, but does not include a general requirement that EIAs must include the same requirements for transboundary as for domestic EIAs. Conversely, the North American draft agreement would require a state of origin to provide equal access to its EIA procedure to the public of affected states, see Draft North American Agreement, supra note 2, Art. 12.1, but does not include specific requirements concerning the degree of public participation.

153 Compare Directive 85/337, supra note 39, Annex III, para. 2, with NEPA §102 (2) (C) (iii), 42 U.S.C. §4332 (2) (C) (iii) (2000). Directive 97/11 requires the EIA to include “[a]n outline of the main alternatives studied by the developer” but does not require the government decision maker to consider any other alternatives. Directive 97/11, supra note 39, Annex IV, para. 2.

154 Espoo Convention, supra note 2, app. II.

155 See text at notes 66-69 supra.

156 A, David. Wirth, , A Matchmaker’s Challenge: Marrying International Law and American Environmental Law, 32 Va. J. Int’l L. 377, 379 (1992)Google Scholar. Wirth states:

Many bedrock principles of domestic environmental and administrative law—including notice to the public, an opportunity to be heard, and judicial review to assure reasoned decision-making—are reflected poorly, if at all, in the international legal system. Indeed, the notion that any of these components might be essential to the integrity of international legal processes, including international environmental decision-making, borders on heresy.

157 Birnie & Boyle, supra note 33, at 105; Okowa, supra note 31, at 285, 286, 293.

158 See generally Wood, supra note 34, at 289-300 (summarizing weaknesses of EIA laws of the United States, the United Kingdom, the Netherlands, Canada, Australia, and New Zealand).

159 See id. at 301-08 (describing EIA in developing countries).

160 Birnie & Boyle, supra note 33, at 200 (equal access “does not compel states to create for their own nationals any of the procedural rights to which it refers. . . . If no relevant rights exist for the state’s own citizens, . . . or if they are narrowly prescribed, the same limitations will affect transboundary claimants.”).

161 See text at notes 66-69 supra.

162 See text at notes 96-105 supra.

163 Canada ratified Espoo subject to a reservation “in respect of proposed activities (as defined in this Convention) that fall outside of federal legislative jurisdiction exercised in respect of environmental assessment.” The reservation attracted objections from Finland, France, Italy, Luxembourg, Norway, Spain, and Sweden. See Status of Multilateral Treaties Deposited with the Secretary-General, ch. XXVII (4), at <http://untreaty.un.org/English/access.asp> (visited Oct. 12, 2001). Although the United States has not publicly explained its reasons for not ratifying Espoo, one possibility is that it wishes to avoid having to make a similar reservation and receiving a similar set of objections.

164 See Letter from Border Environmental Agencies, supra note 105 (making recommendations for notification and assessment at the subfederal level of projects with potential transboundary effects, and expressing the hope that “the United States leads the effort to strengthen existing subnational processes while generating the impetus necessary for the creation of new subnational assessment mechanisms”).

165 Rzeszot, supra note 39, at 127, observes:

The role of the UNECE convention in introducing EIA in the region has to be underlined. In many countries it was the means of drawing the attention of politicians and high-level decision makers to EIA. For some of the countries it provided much needed methodological advice and understanding of the functioning of the western-style EIA system, making it possible to model solutions on those found to be effective elsewhere, as well as avoiding the mistakes of others.

166 NACEC Secretariat, supra note 95; Unece, Policies and Systems of Environmental Impact Assessment, UN Doc. ECE/ENVWA/11, UN Sales No. E.90.II.E.6 (1991); UNECE, Post-Project Analysis in Environmental Impact Assessment, UN Doc. ECE/ENVWA/15, UN Sales No. E.90.II.E.36 (1990).

167 UNECE, supra note 68; UNECE, supra note 71.

168 See UNECE, supra note 71.

169 L, Joseph. Sax, , The (Unhappy) Truth About NEPA, 26 Okla. L. Rev. 239, 239 (1973)Google Scholar.

170 Philip, Michael Ferester, Revitalizing the National Environmental Policy Act: Substantive Law Adaptations from NEPA’s Progeny, 16 Harv. Envtl. L. Rev. 207 (1992)Google Scholar; J, Matthew. Lindstrom, , Procedures Without Purpose: The Withering Away of the National Environmental Policy Act’s Substantive Law, 20 J. Land Resources & Envtl. L. 245 (2000)Google Scholar; Weinberg, Philip, It’s Time to Put NEPA Back on Course, 3 N.Y.U. Envtl. L.J. 99 (1994)Google Scholar; C, Nicholas. Yost, , NEPA’s Promise- Partially Fulfilled, 20 Envtl. L. 533 (1990)Google Scholar.

171 The most important comparative study is Sadler, supra note 36, which was carried out under the auspices of the International Association for Impact Assessment and the Canadian Environmental Assessment Agency and published in 1996. For an overview of studies of the effectiveness of NEPA, see Mandelker, supra note 50, ch. 11.

172 Wood, supra note 34, at 9.

173 Ortolano & Shepherd, supra note 46, at 9.

174 Sadler, supra note 36, at 52 (“In many cases, other factors also play a role, such as economic cycles, political events, etc. With few exceptions, it is very difficult to unambiguously ascribe influence to the EA process.”).

175 Id. at 53; Ortolano & Shepherd, supra note 46, at 9-10; see also Wood, supra note 34, at 213 (noting that in the “United States, and in many other jurisdictions where widespread opportunities for public participation exist . . . , a very high proportion (over 95 per cent) of actions which reach the ‘final’ EIA report stage are approved, but nearly all of these are substantially modified to mitigate impacts during the . . . EIA process.”).

176 Wood, supra note 34, at 224 (“Mitigation of environmental impacts is frequently a prime consideration in the EIA systems in many developing countries but the implementation of proposed mitigation measures is often weak . . .”); Ortolano & Shepherd, supra note 46, at 10 (“Even though many EIAs suggest measures to mitigate adverse environmental impacts, few EIA programs require that mitigation measures be implemented, and few systematic studies have been done to determine if mitigations agreed to by project proponents were carried out.”).

177 Sadler, supra note 36, at 53 (“ [T] he net direct benefit [of such modifications] to environmental protection and community welfare is considerable and possibly undervalued by many.”).

178 See Gebers, Betty, Preface to International Environmental Impact Assessment: European and Comparative; Law and Practical Experience 8, 9 (1997)Google Scholar (Public participation “enables the public to review the proposed projects critically and to open up the public debate on benefits and losses. This debate will in many cases force authorities to produce more balanced, better decisions—or at least prepare a good justification if they go ahead anyway...”).

179 Ortolano & Shepherd, supra note 46, at 11-13, 26-27; see also Taylor, Serge, Making Bureaucracies Think: The Environmental Impact Strategy of Administrative Reform (1984)Google Scholar (examining the effect of NEPA on the Army Corps of Engineers and the U.S. Forest Service).

180 H, William. Rodgers, Jr., Environmental Law 86970 (2d ed. 1994)Google Scholar.

181 See Zygmunt, J. B. Plater, , Robert, H. Abrams, , Goldfarb, William, & L, Robert. Graham, Environmental Law and Policy: Nature, Law, and Society 665 (2d ed. 1998)Google Scholar (“[I]nformation has a power of its own, even in the absence of substantive review mechanisms. Human beings and their institutions are averse to being embarrassed by public exposure of their nonconformity with generally accepted behavioral norms.”). As Plater and his coauthors note, this is a phenomenon with which international law is particularly familiar. Id. In recent years, a large body of scholarly work has examined the role of sunshine in promoting compliance with international agreements. See, e.g., Chayes, Abram & Antonia, Handler Chayes, The New Sovereignty: Compliance With International Regulatory Agreements (1995)Google Scholar; Engaging Countries: Strengthening Compliance With International Environmental Accords (Edith Brown Weiss & Harold K. Jacobson eds., 1998).

182 L, Joseph. Sax, , Introduction, 19 Mich. J. L. Reform 797, 804 & n.28 (1986)Google Scholar.

183 Of course, societies can and do decide that some environmental interests should not be subject to trade-offs, and set specific environmental standards protecting them. See, e.g., Endangered Species Act of 1973, §9,16 U.S.C. §1538 (2000) (making it unlawful for any person to “take” an endangered species). But the United States, at least, has never adopted a general substantive prohibition on all significant environmental harm. Ruhl, J. B. , The Metrics of Constitutional Amendments: And Why Proposed Environmental Quality Amendments Don’t Measure Up, 74 Notre Dame L. Rev. 245 (1999)Google Scholar.

184 The ILC draft articles are evidence that it may be difficult, if not impossible, to exclude such trade-offs, even in good faith efforts to implement Principle 21. See ILC Draft Articles, supra note 3, Art. 10 (listing factors to be taken into account in reaching “an equitable balance of interests”).

185 Bodansky, supra note 1, at 116.

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