SYNERGISING SUSTAINABLE DEVELOPMENT AND ENVIRONMENTAL IMPACT ASSESSMENT IN THE PROTECTION OF BIODIVERSITY



1.       Introduction

The initiative of the United Nations on the issue of Sustainable development culminated in the World Conference of Rio (1992) on the protection of environment and sustainable development. The output of this conference was two documents, fundamental for understanding the philosophy and strategy of sustainability, namely the Rio Declaration and Agenda 21.[1]

Environmental governance principles, approaches and objectives originated either explicitly or implicitly in the fundamental approaches of egocentrism and anthropocentrism.[2] Egocentrism is an environmental philosophy which views human activities in terms of their implications for the ecological ingredients, their relative effects, and ecological balances. Ecosystem approaches are more readily endorsed under this philosophy. Anthropocentrism, on the other hand, is based on the view that any and all human activities must be in the primary interests of humans for achieving society’s desired objectives and goals, regardless of whether some features of the environment ecology are kept intact or disturbed.
There have been varied philosophical and ethical proponents of interspecies equity and biotic rights. These constitute an application of the ecocentric approach. A writer has argued that “the underlying concern of biotic rights is human responsibility to the rest of nature,” and that the emphasis on “rights provides an objective moral basis for this responsibility”.[3] The primary justification for this is human self-interest, and such conditions are necessarily conducive to environmental protection.[4]
It can never be known which of the species that have been lost might have contributed to one or more beneficial uses via ecological services, including biomedical applications for human health. When a specific biospecies becomes extinct, it is not just that the planet loses; the impact is felt on the ecological equilibrium, given the existence of strong ecological interdependencies.[5] Thus, the preservation of biodiversity at all levels, is a global concern now. Biodiversity is our most valuable natural resource and it is an insurance for our food and ecological security. Hence, its components and genetic resources should be utilized only to support our socio-economic need in a sustainable manner.[6] Viewed in this perspective, this study intends to discuss how sustainable development application and environmental impact assessment can help to save biodiversity extinction.

2.       Incorporating the Integrative Approach

While the principle of integration may carry various meanings,[7] two predominant conceptions, the integration of economic development and environmental concerns (external integration) and integration of environmental laws and permitting processes (internal integration), may be legally secured in various ways.[8] The ideas of integration are not new, however, and they may be said to be an inherent part of the concept of sustainable development.[9] The integration principle most often refers to the integration of environmental considerations into sectoral decision-making – that is a horizontal or cross-sectoral aspect.[10] A vertical integration aspect, which reflects integration between decision-making levels, e.g. international, regional, national, local and citizens levels, is, however, also highly relevant.[11] An integrative approach, thus, should emphasize both elements.
A promising path to external integration would be incorporation of sustainable development principles into the mandates of all government agencies which could be accomplished in at least two ways. The incorporation of sustainable obligation into departmental mandates could be forged through specific “modernization” amendments to statutes establishing the various sectoral agencies. An overall legislative mandate calling on all government developments to take sustainable development seriously might also be passed.
Integration aspects have been pointed out as necessary elements for the preservation and sustainable use of biological resources. This is reflected both in the Convention on Biological Diversity (CBD), the Pan-European Biological and Landscape Diversity Strategy (PEBLDS) and in the EU Biological Strategy (EUBS).
A key aspect of sustainable use is to minimize adverse impacts, and the concept of sustainable use may be identified as to encompass almost all kinds of human activities. This means that there is a need to integrate biodiversity considerations into not only those sectors or spheres of activity, which directly affect the biological resources, but into a long range of decision-making contexts. In a regulatory context, such needs may call for broad procedural requirements, e.g. environmental impact assessment,[12] which easily fit into different kinds of decision – making contents. This is a critical lever for external integration.
Environmental assessment procedures related to projects, plans, programmes and policies have in a number of cases been brought forward as a means to achieve integration. One example is the Rio Declaration in which the adoption of environmental assessment procedures is encouraged.[13] Article 14 of the Biodiversity Convention of 1992 provides for states to introduce appropriate procedures requiring environmental impact assessment of (their) proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation in such procedure, and ‘introduce appropriate arrangements to ensure that the environmental consequences of (their) programmes and policies that are likely to have significant adverse impacts on biological diversity are duly taken into account’.[14]
The linking of environmental assessment with sustainable development in this manner has had the important effect of expanding the scope of forms of assessment. Originally environmental assessment was considered to assist mainly with pollution control (though also habitat and landscape concerns) through informing decisions about siting industrial development, and thus performing a technicist function in environmental law.[15] It is now recognized as having a far broader role in influencing decision makers to take account of the quality of natural resources, as well of course as still influencing the location of development.[16]
Integrative approach does not only respond to the broad character of biodiversity issues. It may also express precautionary approach in particular when it is combined with the use of environmental assessment procedures including risk assessment. It is important to integrate the whole range of aspects – e.g. direct, indirect, long term, cumulative and synergistic impacts – and also to disclose the uncertainty and complexity related to biodiversity issues. This means that the ability to deal with cumulative and synergistic effects at plan, strategy and policy levels becomes highly relevant in biodiversity context, while the disclosure of such complex effects and of the element of uncertainty may create a basis for more transparent decision – making, and it may also increase the awareness of potential adverse effects, which hopefully will result in mitigation and monitoring  measures. However, this does not mean, that uncertainty and complexity will prevail and exclude all new activities with potential adverse effects on the biological resources. This decision on whether to accept an activity or not is often part of a political process in which priorities are established and pursued.[17] Such priorities are of course very important, not only priorities between human activity and biodiversity but also priorities between different elements of biological diversity.


3.       EIA and Sustainable Use of Biological Resources

Sustainable development contains both substantive and procedural elements. The principal procedural elements are found in principles 10 and 17 dealing with public participation in decision – making and environmental impact assessment. Environmental impact assessment, access to information and public participation in decision-making perform the function of legitimizing decisions and, if properly employed, may also improve their quality. No discussion on sustainable development should overlook the procedural elements which facilitate implementation at national level.
As well as relating environmental assessment and sustainable development through aspects of regulatory theory, ecological science offers further reasons for this alliance. The association of environmental assessment with the ideas of ecological modernization and sustainable development may be further explained by the influence of ecological science, and the changing paradigms. Early environmental assessment was held up as an example of ‘ecological science in action’, synthesized with law in the United States National Environmental Policy Act (NEPA) 1969. Although not prescribing a particular environmental standard, environmental assessment was a cultural significant evocation of the importance of such ecological concerns in decision making, so that the fairly strict environmental assessment requirements contained within the 1969 Act (alongside the development of nature reserves, biodiversity preservation strategies, and the setting of emission standards) suggest the absorption of some of this thinking into environmental law. A triumvirate of law, ecology and politics acted to reconceive environmental assessment as a legal expression of sustainable develop, so  that environmental concerns are taken into account in decision making, but do not by design,  necessarily predominate.[18]
A general recommendation of the use of EIA can be found in principle 17 of the Rio Declaration (1992) noting that environmental impact assessment shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment. Although principle 17 does not explicitly limit itself  to protect only, the terminology used indicates that the project level probably has been the primary concern in project.[19]
This is also the case in the ESPOO Convention,[20] which lays down detailed requirements on the use context.[21] Yet, the convention also encourages the contracting parties to apply the principles of environmental impact assessment to policies, plans and programmes (Art. 2(7). The ESPOO Convention contains a fairly comprehensive set of procedural requirements – including early notification/consultation with potentially affected parties, detailed information requirements (e.g. alternatives if appropriate, mitigation measures, identification of uncertainties and monitoring programmes if appropriate), public participation and post-project analysis. An environmental impact assessment shall according to the convention include the aspects of e.g. flora, fauna, water, climate and landscape and the interaction among such factors (Article 1 (viii). These elements are of course relevant in a biodiversity context; yet, attention is not drawn to the issues of indirect, cumulative and synergistic impacts.
Central requirement of the Convention on Biological Diversity (1992) is to develop national strategies, plans and policies for the conservation and sustainable use of biological diversity and to integrate the conservation and sustainable use into relevant sectoral or cross – sectoral plans, programmes and policies (Article 6). The convention also calls for the identification of processes and categories of activities, which have or are likely to have significant adverse impacts on biological diversity conservation and sustainable use (Article 7(c). Article 14 (1a) includes a more specific rule on the introduction of EIA procedures for proposed projects likely to have significant adverse effects on biological diversity. In Article 14 (1b) introduction of appropriate arrangements as regards programmes and policies likely to have significant adverse effects on biological diversity are called for.
A very important aspect in relation to environmental assessment and biodiversity is the establishment of an adequate legal and regulatory framework. Establishing an adequate legal and/or regulatory framework for the use of EIA also depends upon the existing legal and regulatory structures. The existing legal and regulatory framework may provide certain opportunities but certainly also some barriers or implementation deficits for the use of EIA. Horizontal and vertical integration aspects as reflected in the ideas of environmental assessment are likely to meet barriers in most legal systems. This includes questions of how procedures are designed to ensure integration of biodiversity considerations and questions of law relevant levels of decision – making are involve.[22] It also includes some more general questions of whether and how the use of environmental assessment is compatible with more fundamental legal – and regulatory issues, inter alia those associated with basic institutional structures. Furthermore, dealing with the intangible interests of biological resources and the often significant degree of uncertainty and complexity is not an easy task in legal or societal system based on individual rights and interest and a cost-benefit logic.


4.       Legal and Regulatory Issues

Environmental assessment possesses several key regulatory characteristics, the primary one of which is that it is procedural in nature, setting requirement for the style and structure of decision making, rather than containing specific standards. The element of legal control is broadly indirect: environmental assessment provides a conduit by which information may enter decision making procedures. This means that, should an environmental assessment establish that significant environmental harm will ensue from a particular development or project, this will be taken into account, but will not necessarily lead to a refusal of development consent for a project, or a policy being abandoned.
As a procedural mechanism, environmental assessment may be considered a response to some of the inadequacies identified with sectoral and direct, or ‘command and control’, forms of regulation, which have frequently sought to achieve some prior specified standard. But neither does environmental assessment fall easily into the category of ‘alternative’ or indirect forms of regulation, such as negotiated agreements, financial incentives and managements systems. Instead, environmental assessment is a novel regulatory type or ‘third way’.
In environmental assessment, procedural and methodological issues require a thorough examination of how each step in the assessment process is able to take biodiversity issues into consideration.[23] Accordingly, the legal and regulatory framework should establish the basis for such considerations by explicit procedural requirements – either formulated in binding rules or in guidelines or preferably in a combination of both.
Many environmental assessment systems provide for review procedures, which serve partly as a quality control and partly as a means to establish a broader decision-making basis. Most often, such procedures consist of consultation and public participation requirements. It may be difficult to perform an adequate quality control by such means, unless specific authorities, institution or organizations selected by their expert knowledge within this field are consulted. This is particularly true in relation to the complex interrelations of the biological resources and the physical environment. Even on complex issues, consultations and public participation are, however, important elements of an open and transparent decision-making process. Thus, a non-technical presentation is required. Consultation and public participation procedures are prescribed in both the ESPOO Convention and in the EIA Act.
“Biodiversity” or the variety of life and its processes, is a basic property of nature that provides enormous ecological, economic, and aesthetic benefits.[24] Its loss is recognized as a major national as well as global concern, with potentially profound ecological and economic consequences.[25] A status report on global biodiversity is available in World Conservation Monitoring Centre (1992). A number of factors have contributed or are contributing to the decline of biodiversity in Nigeria. This decline can be seen in the loss of ecosystems, wetlands, and habitat for threatened or endangered animal species. Factors contributing to the decline of biodiversity include physical alteration to the geography due to resource exploitation and changing land usage; pollution; over harvesting; introduction of exotic (nonnative) species and elimination of native species through predation, competition, genetic modification, and disease transmission; disruption of natural processes; and global climate change. Biodiversity considerations can be important in environmental management. The basic goal of biodiversity conservation is to maintain naturally occurring ecosystems, communities, and native species. The basic goals when considering biodiversity in management are to identify and locate of such activities, where possible; and to restore lost diversity, where practical.[26]
The regulatory characteristics of environment assessment encourage environmental responsibility on the part of developers through various self-regulatory mechanisms (especially the compilation of an environmental statement), seeking cross-media and cross-policy integration, and furthering participatory democracy-all suggest that the instrument is a practical manifestation of the principle of sustainable development. The convention on climate change has established that biodiversity conservation is a common concern of humankind. At the very least, it does provide some general basis for international action, giving all states an interest in, and the right to conserve biodiversity, and for the parties to the convention and even non-parties to observe and comment upon the progress of others in fulfilling their respective obligations and responsibilities for this purpose, both within their own national jurisdiction and beyond it.

From a legal and regulatory perspective biodiversity issues for a large part fall within traditional nature protection law aimed at maintaining, restoring and improving living conditions (habitats) for certain species. Biodiversity issues can, however, not be confined to traditional nature protection law. Especially, the objective of sustainable use of biological resources requires a broad integration into nearly all sectoral activities and regulation. The consideration of potential effects on the biological resources should be part of decision-making within many areas of human activity, e.g. farming, forestry, energy, transport, tourism etc. This means, that there is a need to integrate biodiversity considerations into such activities. One way of fulfilling the objective of integration is the internalization of biodiversity costs (and benefits) through application of a polluter/user/impact pays principle. Application of a polluter pays principle (or users pays principle) as a minimum requires the identification of potential threats and “polluters” in a biodiversity context. This may very well prove to be one of the greatest obstacles to a broad application of the polluter pays principles.
The recognition of different regulatory styles is important in a biodiversity context, which is often focused on traditional nature conservation especially when principles adapted to one regulatory system are introduced into another regulatory system. In relation to the polluter pays principle one might therefore ask whether sustainable use of biological resources primarily should be based on the principles of environmental protection rather than on the traditional principles of nature conservation. While environmental protection law to a certain degree recognizes a polluter pays principle, traditional nature conservation law appears to be based on a principle of compensation for the maintenance or creation of “natural” facilities. As an area of regulation, sustainable use is fairly undeveloped, but it relates to many of the integrative instruments brought forward in a sustainable development context, e.g. environmental impact assessment, environmental management and economic incentive.


5.       Conclusion

Since sustainable development is predicated upon integrating environmental considerations in decision making in exactly the manner supposedly achieved by environmental assessment instruments, this suggests some inevitability about the remit of environmental assessment being further extended (as sustainability analysis) and it similarly being placed at the centre of policy making. Strategic environmental assessment represents a conceptual and practical progression from environmental impact assessment, particularly in terms of thinking about and instituting the integration of policy areas as a necessity of sustainable development. The explicit consequence of merging existing assessment into a single ‘sustainability’ instrument, allowing for the overall consideration and assessment of impacts, is the identification of trade-offs between competing objectives. Whilst such an exercise might be considered an inherent part of sustainable development, here it creates the conditions for the marginalization of an integrated, but diluted, environmental policy. An important implication of this discussion is that environmental assessment can mobilize different conceptions of sustainability depending upon the context within which it is applied and what precisely is asked of the technique.
From the foregoing, it is suggested that there is much to be gained from environmental assessment in terms of achieving the objectives of sustainable development in protecting biological diversity, at least when looking at the ‘big picture’ of global environment politics. This is because the environmental assessment process is capable of facilitating the balancing (or impression of balancing) of competing interests, rather than securing absolute environmental protection, in a manner which similarly underlies the conceptual inconsistency at the heart of sustainable development - can development ever be sustainable?



[1]       Decleris M. The Law of Sustainable Development: General Principles, A Report produced for the European Commission, European Commission, Environment Directorate – General, (2000)..
[2]       Rao P.K. International Environmental Law and Economics, Blackwell Publishers Oxford, (2002). p.25; see Gowsteir R.J. Ecology and Environmental Ethics: Green Wood in the Bundle of Sticks, England, Ashgate, (2004)., 77 – 128; Deswal S. and Deswal A, Environment and Ecology, New Delhi, Dhanpat Rai & Co. (2009), 1­ 1.10
[3]       Nash J.A. “The Case of Biotic Rights”, Yale Journal of International Law, (1993), 18
[4]       Givespie A. International Environmental Law, Policy and Ethics, Oxford: Clarendon Press, (1997), 30.
[5]       Rao P.K. International Environmental Law and Economics, Op. cit
[6]       Dara S.A. A Textbook of Environmental Chemistry and Pollution Control, New Delhi, S. Chand and Company Ltd. (2008), 319; Daniels T. and Daniels K. The Environmental Planning Handbook for Sustainable Communities and Regions, Washington, Planners Press, (2003), 208 – 209.
[7]       Vanderzwaag D. Canadian and Marine Environmental protection: Charting a legal Course Towards Sustainable Development, London, Kluwer Law, (1995), 9 – 12.
[8]       Vanderzwaag, Canadian and Marine Environmental Protection: Charting a Legal Course Towards Sustianble Development, ibid
[9]       Anker H.T. “Environmental Assessment and Sustainable Use of the Biological Resources”, in Anker H.T. and Basse E.M., Land Use and Nature Protection, Emerging Legal Aspects, Copenhagen, Djof Publishing, (2000), 267.
[10]     E.U. Commission Communication COM (98) 333 Final: Partnership for integration – A Strategy for Integrating Environment into European Union Policies
[11]     See Westerlund S. En hallbar rattsordning (A sustainable Law, Uppsala, Lustus Forlag, (1997).
[12]     Boyle A. “The Rio Convention on Biological Diversity”, in Bowman and Redgwell (eds), International Law and the Conservation of Biological Diversity, London, Kluwer Law International, (1996).
[13]     See the Rio Declaration Principle 17 and the Report of the United Nations Conference on Environment and Development.
[14]     Convention on Biological Diversity, 31 ILM 1992
[15]     Holder J. and Lee M. Environmental Protection, Law and Policy: Text and Materials, Cambridge, Cambridge University Press, (2007), 561.
[16]     Holder J. and Lee M., Environmental Protection, Law and Policy. Text and Materials, ibid
[17]     Bugge H. “Legal Issues in Land Use and Nature Protection: An Introductio”n in Anker H.T. and Basse E.M., Land Use and Nature Protection, Emerging Legal Aspects, Copenhagen Djof Publishing , (2000), 21.
[18]     Holder J. Environmental Assessment: The Regulation of Decision Making, Oxford University Press, (2004), 60.
[19]     See Rio Declaration on Environment and Development, UN Doc.A/CONF.151/26;3IIL.M.874(1992)
[20]     See Convention on Environmental Impact Assessment in a Transboundary Context, 30 I.L.M. 800 (1991)
[21]     Ibid
[22]     Glowka L., A Guide to Undertaking Biodiversity Legal and Institutional Profiles, Bonn, IUCN Environmental Law Centre, (1998), p.31.
[23]     Bagri A., Neely J. and Vorhies F., “Biodiversity and Impact” IAIA Workshop, Christchurch, NEw Zealand, (1998), 21-22 April, (http://iucn.org/themes/economics).
[24]     Carter L.W. Environmental Impact Assessment, McGraw-Hill, Inc., USA, (1996), 379
[25]     Council on Environmental Quality (CEQ), (1993). Incorporation Biodiversity Considerations into Environmental into Environmental Impact Analysis Under the National Environmental Policy Act,” CEQ, Washington, D.C.
[26]     Ibid
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