Marine Pollution and controls – Need for a Comprehensive Environmental Impact Assessment Laws

 “In the development process it is better to minimize environmental damage rather than to fund expensive clean-up or rehabilitation actions after damage has occurred.”

The marine environment is a vast, diverse, dynamic, complex area with major environmental issues. There is continuing pressure on the marine environment from conflicting activities including aquaculture, agriculture, fisheries, urbanisation, industrial developments, shipping, conservation and tourism. The scale and public opinion on individual development projects is unprecedented and there are increasing legal challenges.

Management in the marine environment is generally fragmented, complex and poorly understood. A review of scientific and popular literature found examples of excellent, controversial and inadequate EIA projects in marine and coastal areas. Examples of excellent or best practice EIA all involve planning, prediction, monitoring, consultation and management.

Article 1 (4) of the 1982 United Nations Convention on the Law of the Seas (UNCLOS) defines pollution of the Marine Environment to mean “the introduction by man directly or indirectly of substances or energy into the marine environment, which is likely to result in living resources, hazards to human health, hindrance to marine activities including fishing and other legitimate use of the sea, impairment of quality for the uses of the sea water and reduction of amenities”. Before this definition by UNCLOS, the group of experts on the Scientific Aspects of Marine Pollution (GESAMP), in 1969 defined ‘Pollution’ as “the introduction by man, directly or indirectly, of substances or energy to the marine environment which resulted in deleterious effects on marine activities, such as fishing and other living resources, the impairment of the quality and the use of seawater, and the reduction of amenities”. From this definition, it can be deduced that the UNCLOS adopts a modified version of the GESAMP definition.

The main sources of marine pollution are shipping, dumping, land activities and sea-bed activities. This work however, is confined to pollution arising from the exploration and exploitation of various minerals particularly from offshore drilling and allied activities, although pollution may occur in an area of the seabed and the ocean floor as well as the subsoil thereof, beyond the limits of national jurisdiction.

Basically, EIA is a means of identifying, predicting and evaluating the environmental impacts of a proposed development action, and its alternatives, before a decision is made to implement it. The aim is to integrate EIA into the standard, pre-feasibility, feasibility, appraisal and design activities which are carried out to test whether a proposal will meet its objectives. By undertaking EIA work in parallel with these studies, it should be possible to identify significant adverse impacts (and those which are beneficial) and to “design out”, as far as possible, the harmful impacts. Additionally, benefits can be enhanced. The outcome of any EIA should be a proposal, which, in its location, design and method of construction or operation, is “environmental friendly” in so far as its environmental implications are acceptable and any environmental deterioration is unlikely to cause difficulties. EIA is, therefore, a preventive tool and medicine which provides an appropriate analogy. In the field of community medicine, it is better and economically cheaper, to prevent illness rather than cure it.

An Environmental Impact Assessment (EIA) is an assessment of the likely positive and/or negative influence of a project which may have on the environment. EIA can be defined as: “The process of identifying, predicting, evaluating and mitigating the biophysical, social and other relevant effects of development proposals prior to major decisions being taken and commitments made”.

The basic principles of best practice EIA is that, it should be purposive, rigorous, practical, cost-effective, efficient, focused, adaptive, participative, interdisciplinary, credible, integrated, transparent and systematic (International Association for Impact Assessment, 1999). The process of best practice EIA should include (IAIA 1999):

– Screening – to determine whether or not a proposal should be subject to EIA and if so, at what level of detail.
– Scoping – to identify the issues and impacts that are important and to establish terms of reference for EIA.
– Examination of alternatives – to establish the preferred or most environmentally sound option for achieving the objectives of a proposal.
– Impact analysis – to identify and predict the likely environmental, social and other related effects.
– Mitigation and impact management – to establish the measures that are necessary to avoid, minimise or offset predicted adverse impacts and, where appropriate, to incorporate these into an environmental management plan or system.
– Evaluation of significance – to determine the importance of residual impacts that cannot be mitigated.
– Preparation of environmental impact statement (EIS) or report – to document the impacts of the proposal, significance of effects, concerns of the interested public and the communities affected by the proposal.
– Review of the EIS – to determine whether the report meets its terms of reference, provides a satisfactory assessment of the proposal(s) and contains the information required for decision-making.
– Decision-making – to approve or reject the proposal and to establish conditions for its implementation.
– Follow up – to ensure compliance with the terms and conditions of approval; to monitor the impacts of development and the effectiveness of mitigation measures; and, where required, to undertake environmental audit and process evaluation to strengthen future EIA applications and mitigation measures and to optimise environmental management.

The basic principles advocated by IAIA (1999) are subjective and difficult to measure. The process steps of best practice EIA advocated by IAIA (1999) can be evaluated by reviewing EISs and other documents. The process advocated by IAIA (1999) is generally followed in EU, USA and Australia, but there are huge differences in EIA systems throughout the world. The current best practice is to have a framework of legislation, policy and guidelines, risk based approach, longer-term simple permits, issue-based monitoring and a partnership approach.

The above description of principles, process, best practice and major criticism leads to the question “What is an excellent, adequate or inadequate EIA project?”

Most EIA projects in the marine environment register very little community interest, and there are a lot of them.  A recent World Wide Web search indicated 28 potentially significant marine referrals under the Environmental Protection and Biodiversity Conservation Act to date in 2008 and a total of 60 for marine referrals in Australian waters for 2007. The Great Barrier Reef Marine Park Authority manages a small area of Australia and it has assessed approximately 700 marine proposals in 2007. As States and local councils also undertake EIA and make decisions that impact the marine environment, it is highly likely that there are 100 major decisions and possibly 10,000 or more minor EIA decisions made each year that impact the marine environment in Australia. It is likely that there may be similar or more marine EIA decisions in Europe, Asia and America.

Virtually all project-related EIAs focus on the external environment, that is, the environment outside the site boundary. This reflects the history of EIA. As noted above, it had its origins in the developed world. In these countries, there is a strong legal framework for occupational health protection and it was inappropriate for EIA to focus on the internal working environment as well as the external environment, as this would be a duplication of effort and misuse of scarce resources.

A. United Nations Convention on the Law of Sea (UNCLOS), 1982.
Under the 1982 United Nations Convention on the Law of the Sea (UNCLOS), two maritime zones lie beyond national jurisdiction, namely the high seas and the international seabed area (“Area”). Their legal regimes differ substantially from those of the areas under national jurisdiction, as outlined below. Part VII of the UNCLOS also recognizes that freedom of the high seas is exercised under the conditions laid down by it and by other rules of international law, and with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under UNCLOS with respect to activities in the Area.

The legal regime for the Area, which comprises the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction, is contained in Part XI and the 1994 Agreement relating to the implementation of Part XI of UNCLOS, which provide that the Area and its resources are the common heritage of mankind. This means that their exploration and exploitation shall be carried out for the benefit of mankind as a whole, irrespective of the geographical location of States. Part XI of the UNCLOS, the International Seabed Authority (ISA) must adopt appropriate rules, regulations and procedures for, inter alia, the prevention, reduction and control of pollution and other hazards to the marine environment, including the coastline and of interference with the ecological balance of the marine environment, particular attention being paid to the need for protection from harmful effects of such activities as drilling, dredging, excavation, disposal of waste, construction and operation or maintenance of installations, pipelines and other devices related to such activities; and for the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment.

International cooperation with respect to activities in the high seas is effectuated through a number of global and regional organizations, under the global policy guidance of the General Assembly of the United Nations. Part VII of the UNCLOS, together with other global and regional instruments on marine environmental protection, creates a framework within which States must effectively exercise their jurisdiction and control over vessels flying their flag on the high seas. These instruments specify certain rights and obligations which States must comply with in relation to their flag vessels.

Part XI of the UNCLOS, together with Part XII on the protection and preservation of the marine environment, provide the overarching framework for the protection and preservation of the marine environment from the harmful effects which may arise from activities in the Area. Article 192 provides for the general obligation of States to protect and preserve the marine environment. With respect to activities in the Area, Article 209 further provides that international rules, regulations and procedures shall be established in accordance with Part XI to prevent, reduce and control pollution of the marine environment from activities in the Area. Under that Article, States shall adopt laws and regulations to prevent, reduce and control pollution of the marine environment from activities in the Area undertaken by vessels, installations, structures and other devices flying their flag, or of their registry, or operating under their authority, as the case may be. In addition, it must be noted that Article 194 also provides that States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights. Under Article 195, in taking measures to prevent, reduce and control pollution of the marine environment, States shall act so as not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another.

UNCLOS provides in Article 206 that where States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable assess the potential effects of such activities on the marine environment. In addition, Articles 205 and 206 include a duty to communicate reports of the results of such assessments by publishing them or providing them, at appropriate intervals to the competent international organizations, which should make them available to all States. It can be inferred that this duty encompasses planned activities under the jurisdiction or control of States which may cause significant and harmful changes to the marine environment beyond national jurisdiction.

B. Global and regional instruments relevant to EIAs in marine and coastal areas
Binding and detailed provisions for the conduct of EIAs exist under national legislation in respect of most areas within national jurisdiction. In marine areas beyond national jurisdiction, relevant global and regional conventions may contain obligations related to EIA but these tend to be more general and rely on flag State implementation, leading to variable standards of compliance.

(a)     Introduce appropriate procedures requiring environmental impact assessment of its 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 procedures;
(d)     In the case of imminent or grave danger or damage, originating under its jurisdiction or control, to biological diversity within the area under jurisdiction of other States or in areas beyond the limits of national jurisdiction, notify immediately the potentially affected States of such danger or damage, as well as initiate action to prevent or minimize such danger or damage.

D. 1987 United Nations Environmental Programme Goals and Principles of Environmental Impact Assessment (UNEP EIA Principles)
The 1987 UNEP EIA Principles provide that States should not undertake or authorize activities without prior consideration at an early stage of their environmental effects. This principle is intended to apply to all components of the global environment, including marine and coastal areas.

E. Regional Seas Convention
Most of the regional seas conventions contain obligations to conduct EIAs for activities under the jurisdiction or control of State parties with the potential for “significant and harmful changes” to the marine environment within the convention’s area of responsibility. In most cases, however, responsibility for developing EIA guidelines, legislation and processes which prevent or minimize harmful effects to the convention area is devolved to State Parties with the assistance of competent global, regional and sub-regional organizations. In most cases this will limit the EIA obligations of State Parties to activities which have an impact on marine areas within national jurisdiction and to trans-boundary effects among the State Parties, although some regional seas conventions, such as the Barcelona Convention and the OSPAR Convention, include areas beyond national jurisdiction in their geographic scope of application.

F. 1991 Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol)
Activities in the Antarctic Treaty area (i.e., south of 60 degrees south latitude) are subject to more complex and multi-layered environmental assessments under the Madrid Protocol than in most other marine areas. There are three assessment levels – the preliminary assessment level, the initial environmental evaluation level and the comprehensive environmental evaluation level. A preliminary assessment is carried out at the national level for all activities subject to the Protocol with less than a minor or transitory impact. If an activity has no more than a minor or transitory impact, an initial environmental evaluation must be carried out, and if it has more than a minor or transitory impact, a comprehensive environmental evaluation must be carried out. All activities, both governmental and non governmental, in the Antarctic Treaty area are subject to these provisions except for fishing, sealing, whaling and emergency operations, as these are covered by other international instruments.

G. 1997 Guidelines for Environmental Impact Assessment in the Arctic (Arctic EIA Guidelines)
The Arctic EIA Guidelines, although not legally binding, specify that EIA should be applied to activities in the Arctic associated with the exploitation of both renewable and non-renewable natural resources, public use, military activities and the development of infrastructure for different purposes and that may cause significant environmental impacts. The guidelines also note that the sensitivity of Arctic areas may justify the application of lower threshold levels for EIA which recognize the sensitivity of Arctic areas and the potential for cumulative impacts. Sensitivity criteria in the marine context can be based on factors such as the duration of the project, the status of marine species, habitats and ecosystems in particular marine areas, the level of production or quantities of emissions involved in a particular project, and the scientific and cultural significance of particular marine areas.

H. 1991 Convention on Environmental Impact Assessment in a Trans-boundary Context (Espoo Convention)
Under the Espoo Convention, States Parties must take the necessary legal, administrative or other measures to conduct EIAs for proposed activities, listed in Appendix-I, that are likely to cause a significant adverse trans-boundary impact. At present, trans-boundary impact is limited to “any impact, not exclusively of a global nature, within an area under the jurisdiction of a party caused by a proposed activity the physical origin of which is situated wholly or in part within the area under the jurisdiction of another party.” Parties are required to establish an EIA procedure for activities listed in Appendix I to the Convention that are likely to cause a significant adverse trans-boundary impact. Of the activities listed in Appendix I, large-diameter oil and gas pipelines and offshore hydrocarbon production are the most relevant for marine areas. Parties are also required to enter into discussions, at the initiative of any party, on whether activities not listed in Appendix I are likely to cause adverse trans-boundary impacts and where they agree to subject those activities to the prescribed EIA procedure.

I. 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. (Aarhus Convention)
Notification and consultation with affected parties is an integral component of the EIA process in marine and coastal areas. These requirements for notification and public consultation are also consistent with domestic administrative law principles of freedom of information, public participation in government decision-making and the access of individuals to natural justice in respect of decisions affecting them. These good governance principles are recognized in international environmental law. The 1998 Aarhus Convention elaborates on these principles in the context of environmental decision-making and is explicitly recognized in the Espoo Convention.

Article 4 of the Aarhus Convention requires parties to ensure that their public authorities, in response to a request for environmental information, make such information available to the public within the framework of national legislation, including copies of the actual documentation. The definition of “environmental information” is very comprehensive and includes any information in written, visual, aural, electronic or any other material form on:

(a)     The state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components and the interaction among these elements;
(b)     Factors such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment and environmental decision-making;
(c)     The state of human health and safety, conditions of human life, cultural sites and built structures, in as much as they are or may be affected by the state of the elements of the environment.

The definition of environmental information is not limited to the environment in areas of national jurisdiction and therefore the obligations under the Aarhus Convention can be interpreted as applying to information on the state of the environment in marine areas within and beyond national jurisdiction to the extent that it is within the knowledge of public authorities of the parties to the Convention.

Parties to the Convention must be pro-active in ensuring that their public authorities possess and update environmental information which is relevant to their functions and that mandatory systems are established so that there is an adequate flow of information to public authorities about proposed and existing activities which may significantly affect the environment and that such information is transparent and effectively accessible. In addition, they must provide for public participation in decision making.

(EIA Policy prepared by Research Forum, the Highland Council and the Scottish Executive)

Prospective developers are advised to discuss their proposals with relevant planning authorities in the first instance as early as possible. The planning authority should be able to identify whether the proposal can proceed directly to formal planning application, or whether the developer should proceed to non-statutory but structured EIA pre-application consultation. There is also the possibility that the planning authority will recommend direct progression to formal Screening/Scoping, or even directly to formal Scoping. The structured pre-application consultation process, if utilised, is an opportunity for the developer to identify the main constraints and potential issues associated with a development. Key stakeholders should be involved in this process, however the extent of discussions will vary depending on the proposals.

The screening and scoping process is combined into one step to encourage an efficient approach to consultation and decision-making by Statutory Consultees. The purpose of this process can be summarised as follows:

• An opportunity to allow the planning authority to determine the need for an EIA i.e. the potential for significant effects; and
• If an EIA is required, to allow the planning authority to determine the scope, content and focus of the EIA.

The pre-application discussions, screening and scoping exercises will identify the key issues that should be addressed in the EIA. The applicant should now initiate the appropriate baseline studies and begin collation of existing data according to the outcome of these processes.

The key requirements for each aspect of the EIA process are:

i.      Confirm the nature of the proposal including any alternatives under consideration;
ii.     Identify the range of key likely effects on the environment with reference to scoping responses;
iii.    Identify the extent to which these effects need to be investigated;
iv.    Identify and agree methodologies to be employed;
v.     Define data availability and further data gathering required;
vi.    Set the indicative thresholds and significant criteria to be used in evaluation of impacts;
vii.   Identify broad mitigation measures; and
viii.  Agree the above with statutory bodies.

When considering the environmental consequences of a particular fish farm, the impact of mitigation measures, which will form an integral part of the proposal, should also be considered. Collecting the information may involve, in the first instance, desk studies of existing records. Where information does not exist or is inadequate for the purposes of making accurate predictions about potential impacts, additional field surveys may need to be undertaken. The data collected should include that which relates to the indicators selected for the scoping responses.

The purpose of the baseline studies are to determine and describe the environmental conditions against which any changes – in particular the proposed development that is the subject of EIA – can be measured, predicted or assessed. Without an adequate baseline, there will be an insufficient basis to determine the impacts of a proposal. It is necessary to indicate clearly, how characterisation of the baseline environment was derived for the issues that were initially identified as likely to result in a significant negative environmental effect. Consultees may be able to supply relevant information, and statutory agencies are under an obligation to do so for a reasonable charge for the purpose of EIA. Desk studies, field surveys, modelling and consultation are all relevant methods to characterise the baseline environment.

Mitigation refers to the reduction or removal of environmental effects/impacts of a project and instigation of mitigation measures is one of the major benefits of undertaking an EIA. Mitigation measures are most successful when they are considered from the outset of the project rather than as a late stage solution to an identified problem. This can allow the design of the facility to include solutions to potential environmental problems rather than finding a solution, which fits with the design. Mitigation measures should therefore be considered from the outset of the project and discussions on the appropriate mitigation measures will likely to continue after submission of the ES as planning conditions are agreed upon. An appropriate specialist who has assessed the impacts usually suggests mitigation measures.

Mitigation can take varying forms including, in order of Best Practice, first:

i.     Avoidance – this would require the project to be designed or the site selected to avoid any environmental impacts.
ii.    Reduction – this can be achieved by the addition of mitigation measures such as bunding, screening, or applying abatement technology;
iii.   Compensation – where impacts have been unavoidable this method can be used and can involve the improvement of a related environmental issue for example replanting of a deforested area in an alternative location.
iv.    Remediation – this option would involve the clean up and restoration of an area where the environmental impact is unavoidable; and
v.     Enhancement – this method involves the improvement of the site beyond the existing baseline.

Mitigation measures for a site will be highly specific for each development. It is recommended that the developer provides detailed information about each of the mitigation measures including, what is proposed, where and when it will be proposed, duration of the measure, how effective the measures will be, and responsibilities for monitoring the measure. Additionally, any uncertainty in the effectiveness of the measures should be noted in the ES. When considering mitigation, consideration should be given to ‘design’ mitigation and site specific mitigation. Compliance with the Code of Good Practice for Scottish Finfish Aquaculture is essential when considering mitigation.

Having gone through the different Enactments and the Conventions to which India is signatory, it can be suggested that,

1. The Environmental Protection Laws should have a stricter Provisions for submission of  EIA plan by Planners or Developers before they use environmental resources.
2. The Legislations should speak about trans-boundary relations and regulation of Offshore activities without causing marine pollution.
3. Licensing or Permission of Sea related activities by authorities should be subject to submission of satisfactory EIA Report.
4. Being the signatory to the International Conventions the Government should legislate the comprehensive EIA laws to hinder the Marine Pollution.
5. All the mitigation measures and plans should be taken into account before granting Environmental Projects.
6. The Best Practice method as practiced by Scotland, Ireland, UK and USA has to be adopted.
7. Basic idea of Precautionary Principle is not to allow the harmful projects, so it should be brought about strictly in evaluating EIA Environmental Standards.
8. There is a need to set up an Independent Machinery to implement EIA with an object to curb the Marine Pollutions.
9. The personnel having Scientific, Technical, Legal and Environmental Knowledge should constitute a Board or Authority to Permit & Regulate the Offshore Activities.
10. The need of Structured EIA and Pre – Application Consultation as practised in Scotland to be introduced through legislation.
11. The Structured Pre-Application consultation process is an opportunity for the developers to identify main constraints and potential issues.
12. The developers, key stake holders and the Indigenous Public must participate to bring about the EIA plan.

Initially, the stricter implementation of the available Enactments through available authorities has to be ensured. The International Seabed Authority (ISA) must adopt appropriate rules, regulations and procedures for, inter alia, the prevention, reduction and control of pollution and other hazards to the marine environment, including the coastline and of interference with the ecological balance of the marine environment. Particular attention should be paid to the need for protection from harmful effects of such activities as drilling, dredging, excavation, disposal of waste, construction and operation or maintenance of installations, pipelines and other devices related to such activities; and for the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the Marine Environment.

The current Best Practice is to have a framework of legislation, policy and guidelines, risk based approach, longer-term simple permits, issue-based monitoring and a partnership approach for the better control over the Marine Pollution.