Environmental Review and Decision Making

• Author: Edward (Ted) Boling
• Pages: 217-233

CHAPTER 13

Environmental Review and Decision

Making

EDWARD (TED) BOLING

I. Introduction

Environmental impact assessment (EIA) has been described as a legally

binding “process for institutionalizing foresight.”1 This description focuses on

the end result of the EIA process: decisions that are better than they might

have been had they not undergone a public process of scrutiny into their

environmental consequences. However, an equally important aspect of the

EIA process may be its support for “environmental democracy.”2 By inform-

ing and facilitating public involvement in government decisions on actions

that affect communities, EIA processes can help establish community sup-

port necessary to ensure that development decisions are both politically and

environmentally sustainable. As such, EIA has been shown to provide a pro-

cedural framework that, where necessary, has strengthened substantive laws

for sustainable development.

Requirements for environmental impact assessment take myriad forms,

but generally have elements in common with the U.S. National Environmen-

tal Policy Act of 1969 (NEPA). NEPA was enacted with sweeping and trans-

formative goals: to “declare a national policy which will encourage productive

and enjoyable harmony between man and his environment; to promote

efforts which will prevent or eliminate damage to the environment and bio-

sphere and stimulate the health and welfare of man; to enrich the under-

standing of the ecological systems and natural resources important to the

Nation; and to establish a Council on Environmental Quality.”3 Since the U.S.

Congress enacted NEPA, more than 75 nations4 have enacted some form of

EIA law. EIA has also been adopted by multilateral development banks and

international organizations, and as part of international agreements to ensure

deliberate and transparent analysis of the consequences of their decision

making. The European Union (EU) required that its members enact legisla-

tion for EIA in 19855 and Principle 17 of the 1992 Rio Declaration on Environ-

ment and Development provided that “Environmental impact assessment, as

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a national instrument, shall be undertaken for proposed activities that are

likely to have a significant adverse impact on the environment and are sub-

ject to a decision of a competent national authority.”6

In the course of adoption and application of EIA principles, EIA has been

adapted to a wide variety of legal, social, political, and cultural traditions.

While EIA is typically focused upon site-specific projects—particularly proj-

ect compliance with environmental standards and mitigation of projects’

adverse impacts—programmatic approaches, described as strategic environ-

mental assessment (SEA), have been employed to advance sustainability

goals as an objective of development programs. SEA refers to a range of

“analytical and participatory approaches that aim to integrate environmental

considerations into policies, plans and programmes and evaluate the inter-

linkages with economic and social considerations.”7 SEA has been used to

address changes in policies, institutions, laws, and regulations required to

achieve reform of economic sectors in a manner that is sensitive to political

processes often driven by economic interests.

This chapter discusses the development, variations, and current trends in

EIA and SEA. National EIA requirements are addressed in subsequent chap-

ters, though notable trends are addressed in this chapter as well.

II. The Development of EIA

As its title indicates, the EIA procedures of NEPA were enacted to implement

a general statement of the environmental policy of the United States:

[I]t is the continuing policy of the Federal Government, in cooperation

with State and local governments, and other concerned public and pri-

vate organizations, to use all practicable means and measures, including

financial and technical assistance, in a manner calculated to foster and

promote the general welfare, to create and maintain conditions under

which man and nature can exist in productive harmony, and fulfill the

social, economic, and other requirements of present and future genera-

tions of Americans.8

This policy statement codified, for the United States, what became dur-

ing the 1970s and 1980s an international trend to adopt EIA mandates

designed to address a wide range of development effects, such as biophysi-

cal, biodiversity, social, economic, and human health risks and uncertainties.

The trend also expanded its focus from NEPA’s policy of cooperation with

affected interests and jurisdictions to a broader “environmental democracy”

movement that seeks to open up decisions that affect the environment by

“widening the range of voices heard and improving the quantity and quality

of policy choices available to society.”9 While these EIA processes seek to

legitimize government decisions by grounding them in public review, EIA

processes can also provide the basis for partnerships with affected communi-

ties that facilitate implementation of decisions with the specialized knowl-

edge of local conditions and capacities for mitigating impacts.10 Thus, EIA

218 INTERNATIONAL ENVIRONMENTAL LAW