Overview
Many jurisdictions now require Environmental Impact Assessments (EIAs) to be prepared for projects that are approved by public agencies, and that may have significant adverse environmental impacts. NGOs can often participate in the EIA process by commenting on the EIAs, and by filing lawsuits challenging the EIAs after the projects are approved. If the court agrees that EIA defects are severe, the court may order the project approvals set aside until the EIA defects are corrected.
This process can be used to fight climate change in several ways:
- Commenting on the project’s climate-change impacts can sometimes result in reduction of those impacts.
- Filing an EIA lawsuit may give an NGO leverage to negotiate improvements in the project.
- Winning an EIA lawsuit will delay the project and sometimes result in the project not going forward.
Effectiveness Factors
The EIA laws differ considerably from jurisdiction to jurisdiction. The law varies from state to state in the U.S., and from country to country. There are three main factors that make CEQA a useful legal tool for fighting climate change in California, which may not all be present elsewhere:
- Settlement: the EIA process can offer several opportunities for settlement among the parties-before a lawsuit is filed, immediately after the inception of a lawsuit, at the conclusion, before judgment is entered, and post-judgment. Settlement is important for achieving real GHG reductions – the remedies in EIA cases seldom directly require GHG reductions. Project proponents will often agree to reduce GHG emissions in order to avoid delay to the project caused by litigation.
- Fees: In California, prevailing plaintiffs in public-interest cases can recover their attorney’s fees from the project proponent, but plaintiffs are not required to pay the proponent’s attorney’s fees if they lose. This ability to recover fees is important in financing CEQA lawsuits.
- Substantive law: All EIA laws require the project’s environmental impacts to be documented. But CEQA requires that, for each impact found to be “significant” in the EIA, all feasible mitigation must be required. Such mitigation can, of course, involve reducing GHG emissions.
- Causation: Under applicable regulations, it is unnecessary to prove causation under CEQA – it is assumed that GHG emissions are environmental impacts.
History
It started in the U.S. in 1969 with the National Environmental Policy Act. (NEPA, 42 U.S.C. §§ 4321–4370.) Enacted by the U.S. Congress, NEPA requires federal agencies, before approving a project, to prepare documentation analyzing the project’s environmental impacts, and alternative versions of the project which would lessen its adverse impacts. (42 U.S.C. § 4332.) NEPA regulations adopted by the Council on Environmental Quality (40 C.F.R., part 1502) require analysis of mitigation measures that might reduce adverse environmental impacts. NEPA is a procedural statute, requiring decision-makers to be informed about the environmental consequences of their actions, but not requiring them to avoid impacts. (Robertson v. Methow Valley Citizens Council 490 U.S. 332, 350-351 (1989).)
Following NEPA’s enactment, several U.S. states passed similar legislation. One of them was California, which enacted the California Environmental Quality Act (CEQA, Public Resources Code § § 21000–21189.3) in 1970. CEQA applies to state and local agencies in California. It is broadly similar to NEPA, but it has substantive requirements: agencies may not approve projects if there are feasible mitigation measures or feasible alternatives which would reduce any impacts found to be significant in the environmental documentation. (Public Resources Code § 21002.1(b).)
The concept subsequently spread widely to other countries. It is estimated that over 100 countries have EIA legislation. (Sadler 1996, § 2.2.2.) In addition, a variety of international treaties and other instruments require EIAs in situations where more than one country is affected by a project. The EU EIA directive (Dir.85/337 as amended by Dir.97/11, Dir.2003/35 and Dir.2009/31) is an important example. It provides overall requirements for EIAs in the EU’s 28 member countries, and requires each member state to enact legislation to implement it. NGOs that claim a country’s EIA laws do not comport with the EU EIA directive may petition the Commission to initiate an infringement action.
Under international law, EIAs are required for transboundary projects that may have significant adverse environmental impacts. (Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Judgment of April 20, 2010 at p. 204; Seabed Disputes Chamber of the ITLOS, advisory opinion, Case No 17 of Feb. 1, 2011 a p. 145.)
France, for example, started requiring EIAs in 1976, via the Law of July 10, 1976, relative to the protection of nature. That law was modified in 2010, and reinforced by an executive order in 2016. EIA requirements are included as Book One in the French Environmental Code.
How EIAs Work
The following is a generalized summary of EIA procedure. It applies to many different jurisdictions. (By jurisdiction, we mean the country, province, state, city, etc. whose laws control the EIA process.) It draws on examples from the U.S., France, and other countries. If you are considering participating in the EIA process in your jurisdiction, the following sections summarize the parameters of EIA law that you’ll need to consider.
We will use examples from the USA and California, France and Nigeria. U.S. is a common-law country, while France uses the civil law and Nigeria has a hybrid of various systems. In France, Book One of the Code de l’environnement contains the law about EIAs, while that type of law is contained in the Nigerian Environmental Impact Assessment Act.
Screening
Not all projects have substantial enough environmental impacts that they warrant an EIA. In California, for example, CEQA requires an Environmental Impact Report to be prepared if the project may have a “significant” environmental impact. If the jurisdiction determines that the project’s impacts can all be mitigated down to a level where they are not significant, a shorter document, a Mitigated Negative Declaration (MND), can be prepared instead. NEPA is similar, requiring Environmental Impact Statements for projects with significant impacts, and a Finding of No Significant Impact (FONSI) for projects where the impacts are not significant. Both CEQA and NEPA allow for certain categories of projects to be exempted by regulation, when the regulator has determined that projects in the categories usually do not have significant impacts. And both statutes recognize a common-sense exemption, meaning that EIAs do not need to be prepared for projects that obviously will have no environmental impact.
When deciding whether a project has significant impacts, the following types of impacts are usually considered:
- Direct impacts, e.g. the project will threaten the viability of an endangered plant species by removing most of the species’ habitat;
- Indirect impacts, e.g. the project will use a lot of energy, and the generation of that energy at a distant power plant will have impacts; and
- Cumulative impacts, e.g. the project will contribute to a type of air pollution where the overall level of pollution is significant and the project’s contribution is non-trivial.
In most other jurisdictions, the determination whether an EIA is required is not based on the significance of the project’s environmental impacts but on the type of project. Statutes or regulations prescribe the categories of projects for which EIAs are required. The EU EIA Directive contains two Annexes, the first one listing types of projects for which EIAs must be mandatory, the second one listing types of projects for which the EIA decision in the member state may be made on a case-by-case basis, or based on regulations adopted by the member state.
The French Code de l’environnement, implementing the EU EIA Directive in France, contains an Annex to article R122-2 of the code, listing the types of projects for which an EIA is mandatory, and types of projects for which the decision to prepare an EIA will be made on a case-by-case basis.
In Nigeria…
Litigation over whether an EIA is required, or what form it should take, is common.
Coverage
In general, EIAs are required only projects that need governmental approval; in the U.S. they are required only for projects needing discretionary approvals. Ministerial approvals, where the agency must issue the approval if the applicant meets certain statutory or regulatory requirements, do not require EIAs. The reason for this is that the purpose of an EIA is to inform the decision-maker about the project’s environmental impacts. If there is no decision to be made in approving the project, there is no point in producing an EIA.
In the U.S., NEPA covers federal projects, and state-based “baby NEPAs” like CEQA cover state and local projects. There are states with no baby NEPA, so no EIA is required for projects undertaken or approved by state or local agencies in those states. The first step in analyzing projects under NEPA and CEQA in the U.S. is to determine whether the project is exempt. There are numerous exemptions in the statutes and regulations, based on the concept that certain types of projects generally don’t have significant environmental impacts. Under CEQA, for example, a project to construct a single-family home is exempt.
Canada and the Commonwealth of Australia also have incomplete coverage, because they are also federal systems. The EU, a different type of federal system, has incomplete coverage because some of its member states have not adopted legislation that fully implements the EU EIA directive.
In France…
Type of Document
Under both NEPA and CEQA there is a process to determine what type of environmental document is required. Under NEPA it’s called an Environmental Assessment (EA); under CEQA it’s an Initial Study (IS). The function of these documents is to determine whether the project will have significant unmitigatable environmental impacts. If so, a full EIS or EIR is required. If not, a shorter version, with less analysis, will suffice. The shorter versions are called Negative Declarations under CEQA and Findings of No Significant Impact (FONSIs) under NEPA.
Scoping
Scoping is the process of determining which environmental impacts need to be analyzed in the EIA.
Impact Analysis
Production of the EIA, which should include analyses of each significant environmental impact, along with a discussion of appropriate mitigation measures and feasible alternatives to the project.
Public Input
The public is allowed, in most jurisdictions, to comment on the project and the EIA. For this to work, the public needs access to the project documents and the EIA.
Project Approval
Usually the EIA and the project are approved in tandem.
Appeals
Certain jurisdictions offer the possibility of appealing the project approval or disapproval to a higher-level body. For example, in California, if an approval is made by a non-elected local body, such as a City Planning Commission, the EIA approval may be appealed to the elected decision-makers, namely the City Council.
Monitoring
Projects that are approved with mitigation frequently need to be monitored afterwards, to make sure the mitigation is functioning properly. In some jurisdictions this requires a Mitigation Monitoring Program.
Tiering and SEAs
There are many mechanisms in the various jurisdictions to allow higher-level EIAs for programs, from which project-level EIAs “tier.”
In the EU, a different type of EIA, called an SEA, may be developed and approved for planning projects, such as urban planning documents.
Litigation
Standing
Who may file litigation against an EIA approval?
Exhaustion
What does an NGO filing a lawsuit against an EIA approval need to have done during the administrative project approval process in order to have the right under the EIA statutes to file suit?
Jurisdiction
In which court must the case be filed?
Stays and Injunctions
Generally, the filing of an EIA lawsuit doesn’t stay or stop the project. In some jurisdictions, the plaintiff may apply for a preliminary injunction to stop the project from moving forward, until the case is resolved.
Remedies
The most common remedy in an EIA lawsuit is for the court to set aside the project approvals and the EIA, if the plaintiff wins. The developer must then correct the deficiencies in the EIA and go through the approval process once again.
Attorney’s fees
In the USA, plaintiffs prevailing in EIA litigation are usually entitled to have their legal fees paid by the project proponent, but a prevailing proponent/defendant has no right to seek reimbursement of legal fees from the plaintiff.
It works quite differently in other jurisdictions.
Example Lawsuits
California
USA
France
Kenya
Reference List
Craik, Neil. 2008. The International Law of Environmental Impact Assessment, Cambridge: Cambridge University Press.
Garancher, Thomas. 2013. Etudes d’impact environnemental, Paris: Editions le Moniteur.
Glasson, John, and Therivel, Riki. 2019. Introduction to Environmental Impacts Assessment, 5th ed. Oxford: Routledge.
Koivurova, Timo, and Lesser, Pamela. 2016. Environmental Impact Assessment in the Arctic. Northampton, Mass.: Edward Elgar Publishing Ltd.
Marriott, Betty Bowers. 1997. Environmental Impact Assessment, a Practical Guide. USA: McGraw Hill
Noble, Bram F. 2016 Introduction to Environmental Impact Assessment: A Guide to Principles and Practice. Oxford: Oxford Univ. Pr.
Petts, Judith, ed. 1999. Handbook of Environmental Impact Assessment, Vol. 2, Oxford: Blackwell Science Ltd.
Sadler, B. 1996. Environmental Assessment in a Changing World: Final Report of the International Study of the Effectiveness of Environmental Assessment. Canadian Environmental Assessment Agency.