Environmental Impact Assessment

What is an environmental impact assessment?

In the BBNJ Treaty, an environmental impact assessment (EIA) is defined as:

a process to identify and evaluate the potential impacts of an activity to inform decision-making.

Ref. BBNJ Treaty Art. 1.7.

Why is environmental impact assessment a part of the BBNJ Treaty?

Environmental impact assessment is one of the four substantive elements that countries decided is an essential part of fostering conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. Other three substantive elements are: marine genetic resources, including the fair and equitable sharing of benefits, area-based managment tools, including marine protected areas, and capacity-building and the transfer of marine technology.

Ref. United Nations General Assembly Resolution A/RES/72/249

What are the specific objectives of environmental impact assessments?

Below is a summary of the specific objectives associated with EIAs:

  • Establish processes, thresholds, and other requirements for conducting and reporting EIAs;
  • Ensure that relevant activities are assessed and conducted to prevent, mitigate and manage significant adverse impacts for the purpose of protecting and preserving the marine environment;
  • Support the consideration of cumulative impacts (i.e., the combines and incremental impacts resulting from different activities, including known past and present and reasonably foreseeable activities, or from the repetition of similar activities over time, and the consequences of climate change, ocean acidification and related impacts) and impacts in areas within national jurisdiction;
  • Provide for strategic environmental assessments;
  • Achieve a coherent EIA framework for activities in ABNJ;
  • Build and strengthen the capacity of Parties, particularly developing States Parties to prepare, conduct and evaluate EIAs and SEAs in support of the objectives of the Treaty.

Ref. BBNJ Treaty Art. 27

What are the obligations to conduct EIAs?

There are two circumstances that give rise to an obligation for a Party to conduct an EIA. The first is a planned activity in ABNJ that may have potential impacts on the marine environment. The second is a planned activity in marine areas within national jurisdiction that may cause substantial pollution of or significant and harmful changes to the marine environment in ABNJ. In either case, an EIA must be conducted before the planned activity under a Party’s jurisdiction or control is authorized.

Ref. BBNJ Treaty Art. 28

What if an EIA has been conducted pursuant to a different mandate rather than the BBNJ Treaty?

If the the Party with jurisdiction or control over the planned activity determines that the following criteria are met, a screening or an EIA of a planned activity in ABNJ is not required:

  • potential impacts of the planned activity or category of activity have been assessed in accordance with the requirements of other relevant legal instruments or frameworks or by relevant global, regional, subregional or sectoral bodies;
  • Either one of the elements is met:
    • the assessment already undertaken for the planned activity is equivalent to the one required per the BBNJ Treaty, and the results of the assessment are taken into account; or
    • the regulations or standards of the relevant legal instruments or frameworks or relevant global, regional, subregional or sectoral bodies arising from the assessment were designed to prevent, mitigate or manage potential impacts below the threshold for conducting an EIA pursuant to the BBNJ Treaty and such requirements have been met.

Party with the jurisdiction or control over the planned activity must conduct monitoring and review, if there was no requirement to do so.

The following documents on non-BBNJ Treaty EIAs must be published through the Clearing-House Mechanism:

  • EIA report conducted pursuant to non-BBNJ Treaty requirements
  • Monitoring and review reports, if the EIA was conducted pursuant to non-BBNJ Treaty requirements and there is a lack of monitoring and review.

Ref. BBNJ Treaty Art. 29

What is the threshold and requirements on screening to determine if an EIA is required?

The threshold for screening is, when a planned activity may have more than a minor or transitory effect on the marine environment, or the effects of the activity are unknown or poorly understood.

The content of the screening must have sufficient detail for the Party to assess whether it has reasonable grounds for believing that the planned activity may cause substantial pollution of or significant and harmful changes to the marine environment. Specifically, the following information must be included:

  • Description of the planned activity, including its purpose, location, duration and intensity; and
  • Initial analysis of the potential impacts, including consideration of cumulative impacts and, as appropriate, alternatives to the planned activity.

When determining whether the planned activities meet the threshold to conduct an EIA, Parties must consider the following non-exhaustive factors:

  • Type of and technology used for the activity and the manner in which it is to be conducted
  • Duration of the activity;
  • Location of the activity;
  • Characteristics and ecosystem of the location (including areas of particular ecological or biological significance or vulnerability);
  • Potential impacts of the activity, including the potential cumulative impacts and the potential impacts in areas within national jurisdiction;
  • Extent to which the effects of the activity are unknown or poorly understood;
  • Other relevant ecological or biological criteria.

Ref. BBNJ Treaty Art. 30

What is the process of conducting an EIA?

The following are the steps for conducting an EIA:

  1. Screening
  2. Scoping
  3. Impact assessment and evaluation
  4. Prevention, mitigation, and management of potential adverse effects
  5. Public notification and consultation
  6. Preparation and publication of an EIA report

Note that Parties can conduct joint EIAs (in particular, for the small island developing States). There will also be a roster of experts under the Science and Technical Body that a Party with capacity constraints may request to obtain advice and assistance from to conduct and evaluate screenings and EIAs for a planned activity under their jurisdiction or control. Further, depending on the result of the screening process, the EIA process may conclude after that step.

Ref. BBNJ Treaty Art. 31

Public notification and consultation process

The BBNJ Treaty identifies a wide range of stakeholders for EIAs: Indigenous Peoples and local communities with relevant traditional knowledge, relevant global, regional, subregional and sectoral bodies, civil society, the scientific community and the public.

Parties must use the Clearing-House Mechanism to provide information on EIAs and allow for comments at various stages of the process. Such notice must be inclusive, transparent, timely, targeted, and proactive, especially involving small island developing States. However, confidential, and proprietary information may be withheld, with clear indication of redacted sections.

The Treaty has specific provisions for “potentially most affected States” (determined based on the nature and potential effects of the planned activity, including coastal states with resource interests and states conducting relevant activities in the area in question. Substantive comments received, including from potentially affected States, should be considered and addressed by Parties. Emphasis should be given to comments regarding impacts within national jurisdiction, and responses should be made public.

For activities affecting areas of the high seas surrounded by exclusive economic zones, Parties should engage in targeted consultations with surrounding states, consider their views, respond to comments, and revise plans as appropriate.

Ref. BBNJ Treaty Art. 32

What needs to be included in an EIA report?

The environmental impact assessment report must include, at a minimum, the following information:

  • description of the planned activity, including its location;
  • description of the results of the scoping exercise;
  • baseline assessment of the marine environment likely to be affected;
  • description of potential impacts, including potential cumulative impacts and any impacts in areas within national jurisdiction;
  • description of potential prevention, mitigation and management measures;
  • description of uncertainties and gaps in knowledge;
  • information on the public consultation process;
  • description of the consideration of reasonable alternatives to the planned activity;
  • description of follow-up actions, including an environmental management plan; and
  • non-technical summary.

Ref. BBNJ Treaty Art. 33

Is there a process for providing drafts and finalizing it?

There is a process for EIA, in terms of a draft to a final assessment report. The process involves public consultation, and evaluation by the Scientific and Technical Body. The Clearing-House Mechanism is the platform for providing the relevant documents.

Ref. BBNJ Treaty Art. 33.3

What is the decision-making process?

A Party under whose jurisdiction or control a planned activity falls is responsible for determining if the activity may proceed.

When determining whether the planned activity may proceed, the Party must take full account of the EIA. A decision to authorize the planned activity must only be made when, taking into account mitigation or management measures, the Party has determined that it has made all reasonable efforts to ensure that the activity can be conducted in a manner consistent with the prevention of significant adverse impacts on the marine environment. Decision documents, which must be made public including via the Clearing-House Mechanism, must clearly outline any conditions of approval related to mitigation measures and follow-up requirements. At the request of a Party, the Conference of the Parties may provide advice and assistance to that Party when determining whether a planned activity under its jurisdiction or control may proceed.

Ref. BBNJ Treaty Art. 34

Are there requirements to monitor, report, and review the impacts of authorized activities?

Yes. The BBNJ Treaty provides for specific requirements to monitor, report, and review the impacts of authorized activities.

The Party must use the best available science and scientific information and, where available, the relevant traditional knowledge of Indigenous Peoples and local communities, keep under surveillance the impacts of any activities in areas beyond national jurisdiction that they permit or in which they engage to determine whether these activities are likely to pollute or have adverse impacts on the marine environment. Each Party must monitor the environmental and any associated impacts, such as economic, social, cultural and human health impacts, of an authorized activity in accordance with the conditions set out in the approval of the activity.

Ref. BBNJ Treaty Art. 35, 36, and 37

What standards and/or guidelines will be developed by the Scientific and Technical Body?

The Scientific and Technical Body (STB) will develop the following wide-range of topics for consideration and adoption by the COP:

  • Determination of whether the threshold for conducting a screening or an EIA has been reached or exceeded for the planned activities;
  • Assessment of cumulative impacts in ABNJ and how those impact should be considered for the EIA process;
  • Assessment of impacts in areas within national jurisdiction of planned activities in ABNJ and how those impacts should be considered in the EIA process;
  • Public notification and consultation process, including the determination of what constitutes confidential or proprietary information;
  • Required content of EIA reports and published information used in the screening process, including best practices;
  • Monitoring of and reporting on the impacts of authorized activities, including the identification of best practices;
  • Conduct of strategic environmental assessments.

The STB may also develop standards and guidelines for consideration and adoption by the Conference of the Parties, including on:

  • An indicative non-exhaustive list of activities that require or do not require an EIA, as well as any criteria related to those activities, which will be periodically updated;
  • The conduct of EIAs by Parties in areas identified as requiring protection or special attention.

Final EIA reports will be considered by the STB based on relevant practices, procedures and knowledge under the BBNJ Treaty, for the purpose of developing guidelines, including the identification of best practices. The STB will review a select published information used in the screening process to make decisions on whether to conduct an EIA, for the purpose of developing guidelines, including the identification of best practices.

Ref. BBNJ Treaty Art. 38

Where will I be able to find the BBNJ Treaty's EIA standards or guidelines?

Any standard or guidelines will be issued as an annex to the BBNJ Treaty. Such standards or guidelines may include an indicative non-exhaustive list of activities that require or do not require an EIA, as well as any criteria related to such activities. The standards or guidelines will be periodically updated.

Ref. BBNJ Treaty Art. 38

What is a strategic environmental assessment and how will the tool be used in ABNJ?

Strategic environmental assessment (SEA) is an assessment of the potential effects of a plan or program as well as their alternatives on the marine environment.

In the context of the BBNJ Treaty, Parties, individually or in cooperation with other Parties, must take into consideration the following (where available) in conducting an EIA:

  • results of the relevant SEA; and
  • best available information about the area or region, current and potential future impacts, and data gaps and research priorities identified by the COP.

The COP will develop guidance on the conduct of each category of SEA.

Ref. BBNJ Treaty Art. 39

Logo

The Giurgis Laboratory