WRITTEN SUBMISSION OF THE EU AND ITS MEMBER STATES

Transcription

1 DEVELOPMENT OF AN INTERNATIONAL LEGALLY-BINDING INSTRUMENT UNDER UNCLOS ON THE CONSERVATION AND SUSTAINABLE USE OF MARINE BIOLOGICAL DIVERSITY OF AREAS BEYOND NATIONAL JURISDICTION (BBNJ PROCESS) WRITTEN SUBMISSION OF THE EU AND ITS MEMBER STATES ENVIRONMENTAL IMPACT ASSESSMENTS 15 February 2017

2 Environmental Assessments (EIA and SEA) Introduction 1. Environmental assessments are an important tool for effectively integrating environmental considerations in the decision-making process prior to engaging in or authorizing activities that may cause significant and harmful changes to the marine environment in areas beyond national jurisdiction. Carrying out such assessments has to ensure that environmental considerations are taken into account. 2. However, we note with concern that, in the absence of a holistic framework, currently no globally agreed procedure to implement the relevant obligations of the UNCLOS (Articles 204, 205 and 206) related to environmental assessments exists. It is currently difficult to assess the potential effects of relevant activities in areas beyond national jurisdiction, in particular in relation to the cumulative effects of activities. 3. The Implementing Agreement should put into operation the above mentioned UNCLOS provisions. 4. The EU and its Member States would like to reaffirm the proposals included in our written submission prior to PrepCom 2, our opening statements as well as our interventions during PrepCom 1 and 2. We would like to repeat that, as a starting point, the Implementing Agreement should include criteria for the undertaking by State Parties of an environmental impact assessment (EIA) or strategic environmental assessment (SEA) in general. In particular it should include thresholds or criteria for the screening of activities to determine if they should be assessed, and the type and amount of information to be included in the assessment reports for activities that may cause significant and harmful changes to the marine environment in areas beyond national jurisdiction. 5. In the following paragraphs, we would like to delve deeper into some of the questions that came out of the two sessions of the PrepCom, as well as clarify some of the basic ideas underpinning our views on the procedure for environmental assessments. Background 6. In our previous submissions, the EU and its Member States like other delegations have identified a number of international instruments (legally binding and non-legally binding) which are directly or indirectly relevant for environmental assessments under the Implementing Agreement. These instruments constitute important sources of guidance and inspiration for the Implementing Agreement, even if some of them do not cover areas beyond national jurisdiction. Additionally, the majority of these instruments do not focus on the protection of biodiversity. 7. In Part XII of UNCLOS, impacts on marine biodiversity are dealt with under various provisions (such as Articles 194, 204 and 206); however, these provisions have not been operationalized so as to establish a concrete scope and content for an environmental assessment process. 8. Most existing instruments are limited to project-level assessments (EIA), and do not necessarily provide for the assessment of cumulative effects, i.e. impacts on the same ecosystems resulting from different activities, or from the repetition of similar activities over time. 2

3 9. Often instruments provide very general criteria on when environmental assessments are required but do not establish a process on how to conduct such assessments. This applies in particular to framework conventions such as UNCLOS and the CBD but also to the RSCs, even if more specific guidance has been developed under some of the instruments. 10. Several instruments which provide greater detail in terms of assessment criteria and procedures are non-binding. This applies in particular to the Voluntary Guidelines for the Consideration of Biodiversity in Environmental Impact Assessments and Strategic Environmental Assessments in Marine and Coastal Areas adopted under the CBD and to the FAO s International Guidelines for the Management of Deep-sea Fisheries in the High Seas. 11. Some existing instruments provide for systematic review of implementation which can generate information on whether and how relevant provisions are actually applied, and to what effect. The Implementing Agreement should also include a mechanism for assessing the effectiveness of its EIA/SEA provisions. 12. Existing legal instruments cover some but not all potentially relevant activities in ABNJ. E.g., we note the requirement for conducting EIAs under the London Convention and Protocol (dumping and marine geo-engineering activities), under the ISA deep seabed mining Regulations, and the FAO Guidelines on management of deep sea fisheries. The annex to this submission identifies key provisions in the legal regime under UNCLOS and other multilateral conventions or bodies, and it refers to sector-specific EIA processes where we have been able to identify relevant requirements. Types of environmental assessments (EIA and SEA) 13. The difference between environmental impact assessment (EIA) and strategic environmental assessment (SEA), and the value of the latter, is clarified in the aforementioned CBD Voluntary Guidelines: Strategic environmental assessment (SEA) has been defined as the formalized, systematic and comprehensive process of identifying and evaluating the environmental consequences of proposed policies, plans or programmes to ensure that they are fully included and appropriately addressed at the earliest possible stage of decision-making on a par with economic and social considerations. Since this original definition was established, the field of SEA has rapidly developed and expanded, and the number of definitions of SEA has multiplied accordingly. SEA, by its nature, covers a wider range of activities or a wider area and often over a longer time span than the EIA of projects. SEA might be applied to an entire sector (such as a national policy on energy, for example) or to a geographical area (for example, in the context of a regional development scheme). SEA does not replace or reduce the need for project-level EIA (although in some cases it can), but it can help to streamline and focus the incorporation of environmental concerns (including biodiversity) into the decision-making process, often making project-level EIA a more effective process. SEA is nowadays commonly understood as being proactive and sustainability-driven, whilst EIA is often described as being largely reactive Following from the above, the EU and its Member States consider that SEAs carried out (by States individually or collectively) at an early stage in planning relevant activities in ABNJ, in particular for areas affected by various different activities have value, for example, to facilitate the consideration of cumulative effects. Such effects may result 1 UNEP/CBD/COP/11/23, Part II, para. 7. 3

4 from more than one project or from specific projects in combination with environmental changes such as global warming and ocean acidification. The assessment of individual projects and their impact (including cumulative effects) would also benefit from building on such strategic assessments. 15. Conducting SEAs in ABNJ might in many cases require cooperation between States at regional level, either ad hoc or in the context of existing regional or global institutions (for an example of such cooperation at strategic level, cf. ISA Environmental Management Plan Clarion Clipperton Zone for deep sea mining). The Implementing Agreement should help improve such cooperation. Possible issues requiring further discussion (Appendix 3 Chair s overview PrepCom 2) 16. While not attempting to address all the bullet points in Appendix 3 of the Chair s overview, in the following paragraphs the EU and its Member States offer their thoughts on some of the issues identified as requiring further discussion. 17. As a general point of departure, the EU and its Member States consider that the Implementing Agreement should improve upon the status quo by building on existing international instruments, their procedures and processes as well as on the experience of States. 18. In order to give effect, in ABNJ, to the requirements of Articles 204, 205 and 206 of the UNCLOS to assess and report on the potential effects of scheduled plans or activities that may cause substantial pollution of or other significant and harmful changes to the marine environment, the Implementing Agreement should: establish general rules and procedures for: o the undertaking by States Parties of environmental assessments of planned projects, policies, plans and programs, as appropriate, under their jurisdiction or control; o the reporting on the outcomes of those assessments; address when and how to conduct environmental assessments: For determining the when, the Implementing Agreement should help operationalise generic formulae such as reasonable grounds for believing that planned activities [ ] may cause [ ] significant and harmful changes (Art. 206 UNCLOS), including through setting thresholds or criteria. As to the how, the Implementing Agreement should include a process for conducting environmental assessments in ABNJ. There is an emerging consensus on the usefulness of such a process consisting of screening, scoping, impact analysis, mitigation and impact management, and reporting. 2 At various stages in the process, there should be access to information (including environmental information), public notification and consultation at the global level, including the identification and participation of stakeholders and consultation with relevant States. 19. We understand that there is little experience in conducting environmental assessments in ABNJ, and that the practice within national jurisdiction may serve as an inspiration for further developing the practice in the ABNJ context. 2 For example, see the International Association for Impact Assessment's (IAIA, 1999) "Principles of Environmental Assessment Best Practice". 4

5 20. The Implementing Agreement should ensure that the outcome of the environmental assessment is duly taken into account in decisions on the authorization of activities and on any accompanying mitigation or compensation (redress) measures. It should also provide for the precautionary principle, the principle of no net loss and the mitigation hierarchy to be taken into account in such decisions. 21. The assessment should be followed by the monitoring of the effects of any permitted activities (cf. Article 204 of the UNCLOS). 22. The Implementing Agreement should address the publication of assessment reports, e.g. through a dedicated website or a registry. This aims to give effect to the obligations under Articles 205 and 206 of the UNCLOS. Various means could be used to ensure transparency of a decision authorizing the activity in ABNJ. This could include the requirement for a public statement of the reasons underlying a particular decision and of how environmental concerns have been taken into account. 23. The Implementing Agreement should facilitate the building of capacity for, and learning of lessons from the application of its environmental assessment provisions, so as to improve over time the quality of assessments carried out in the challenging ABNJ context. This can be achieved through e.g. voluntary peer review mechanisms or twinning 3 amongst State Parties. 24. In addition to enshrining relevant concepts, principles and processes, the application of the Implementing Agreement could help overcome challenges for conducting environmental assessments in ABNJ by facilitating the gradual build-up of, and access to, a globally shared body of best practices. Additional observations/comments to some specific bullet points in Appendix 3 of the Chair s overview PrepCom With regard to The stage(s) at which there should be international involvement or oversight, if any, in the EIA processes (notably who should be responsible for deciding that an EIA is required, conducting EIAs, reviewing assessment reports, deciding on the admissibility of an activity, monitoring and reviewing activities), the EU and its Member States consider that a State Party to the Implementing Agreement should be responsible for deciding, based on the thresholds or criteria included in the Agreement that an environmental assessment is required. Accordingly, a State Party should: (a) Be required to ensure that EIAs are carried out, according to the agreed criteria, prior to engaging in or authorising activities that may cause substantial pollution of or other significant and harmful changes ("harmful effects") to the marine environment in ABNJ; (b) Ensure that any such harmful effects are identified and taken into account in any decision making process and such activities are consistent with States' obligations under the UNCLOS to protect and preserve the marine environment, including through the adoption of suitable measures to prevent or mitigate any such harmful effects; (c) Following the principle of due diligence linked to the requirement of Article 204 of the UNCLOS, monitor the effects of activities (including policies, plans and programs) carried out after an environmental assessment and the compliance with any conditions (such as prevention, mitigation or compensation measures) related to their authorisation; 3 Twinning is an instrument for cooperation between the administrations of two or more partnering states with different levels of expertise. 5

6 (d) Make reports publically available on environmental assessments and on subsequent measures and monitoring results. The Implementing Agreement should provide for a follow-up procedure in order to review compliance with the agreed rules and procedures for completed EIAs and SEAs. 26. With regard to Whether the costs for conducting the EIA should be borne by the proponent of an activity, the EU and its Member States consider that addressing this issue falls within the national competence of the State Party. 27. With regard to Who should be regarded as stakeholders and how should the consultations with stakeholders be conducted, the EU and its Member States observe that, since the process of EIA should be as inclusive as possible, civil society, industry and competent international organizations are examples of possible stakeholders. Existing procedures as well as the experiences of States in conducting environmental assessments should be built upon when it comes to answering the question as to how to conduct the consultations. 28. With regard to What is the specific content of assessment reports? the EU and its Member States observe that environmental assessment reports made pursuant to the Implementing Agreement should, inter alia, include: (a) a description of the assessed activities and the likelihood that they will cause substantial pollution of, or other significant and harmful changes to, the marine environment in ABNJ and its biodiversity; (b) a description of the measures for avoiding, preventing, mitigating and, where necessary and possible, redressing any substantial pollution of, or other significant and harmful changes to, the marine environment. 6

7 Annex Human activity in ABNJ Legal regime under UNCLOS Other multilateral conventions (or bodies) Sector-specific EIA processes for the activity established under instruments other than UNCLOS (Deep-sea) fishing Article 63(2) Article 87(1e) Part VII, Sect. II UNFSA RFMOs Deep-sea fisheries: - UNGA Resolutions 61/105, 64/72, 66/68, 71/123 - FAO Guidelines on the management of deep-sea fisheries Mining Part XI UN Part XI Agreement (ISA) Recommendations for the guidance of contractors for the assessment of the possible environmental impacts arising from exploration for marine minerals in the Area (chapter IV; ISBA/19/LTC/8) Dumping of wastes and other matter (incl. carbon capture and storage) Article 210 & 216 London Convention & Protocol (LC/LP) LP Annex 1 (wastes that may be considered for dumping) and Annex 2 (assessment procedure: generic) Specific Waste Assessment Guidelines Marine geoengineering activities: ocean fertilization Article 87(1f) Article 210 & 216 Part XIII Convention on Biological Diversity (CBD) LC/LP Resolution LP.4.8 (2013) on the amendment to the LP to regulate the placement of matter for ocean fertilization and other marine geo-engineering activities Resolution LC-LP.2 (2010) on the Assessment Framework for scientific research involving ocean fertilization Marine scientific research Article 87(1f) Article 143 Part XIII LC/LP OSPAR Resolution LC-LP.2 (2010) on the Assessment Framework for scientific research involving ocean fertilization OSPAR Code of Conduct for Responsible Marine Research in the Deep Seas and High Seas of the OSPAR Maritime Area (OSPAR Agreement ) Source: inspired by OSPAR 09/22/1-E, Annex 6 OSPAR s Regulatory Regime for establishing Marine Protected Areas (MPAs) in Areas Beyond National Jurisdiction (ABNJ) of the OSPAR Maritime Area (advice given by the Group of Jurists/Linguists to OSPAR Commission in 2009). 7