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