The Access Initiative

Topics: Environmental Impact Assessment

President Trump’s First Week: Is Environmental Democracy in Jeopardy?

During the new president’s first week in office, the Trump administration took actions that could threaten inclusive decision-making on environmental issues—what we refer to as “environmental democracy”—in the United States:

  • On Monday, the administration instituted a “media blackout” at the Environmental Protection Agency (EPA), prohibiting staffers from publishing news releases, blogs, social media posts and new web content.
  • Similar actions were taken at other agencies, including curtailing of communications at the Department of Agriculture, Department of Interior, Department of Health and Human Services and with the National Parks Service.
  • On the same day, the president stated that he plans to “cut regulations by 75 percent, maybe more” to make it faster for businesses to move projects forward.
  • On Tuesday, he issued an executive order to revive the Keystone XL and Dakota Access pipelines, without consulting with the State Department and bypassing further public consultations.
  • On Wednesday, after proposing and then rescinding a directive to remove EPA’s climate change webpage, a spokesperson for the EPA transition team announced that political appointees must review scientific findings on a “case-by-case basis” before releasing them to the public, including routine pollution monitoring data.
  • These actions could not only undermine the government’s ability to protect the environment and public health, but they also erode the foundations of good governance: transparency, public participation and accountability.

Transparency

Citizens can neither understand nor participate in environmental decision-making without having access to objective, scientific information and data. Sound and effective policymaking within government should be based on the best possible information and evidence. Further, the free flow of information is essential for allowing people to reveal wrongdoing and hold officials to account. As a public institution, the EPA is legally required to provide access to critical environmental information, such as air and water pollution monitoring reports, Environmental Impact Assessments, compliance and enforcement data and climate data. Doing so ensures that Americans “have access to accurate information sufficient to effectively participate in managing human health and environmental risk.”

Beyond communications, it is problematic to require that political appointees review the agency’s scientific data—including regarding climate change—before releasing it to the public. This will be the first time that an administration’s appointees will screen such studies.

This directive undermines the EPA’s established Scientific Integrity Policy, which “prohibits all EPA employees, including scientists, managers, and other Agency leadership, from suppressing, altering, or otherwise impeding the timely release of scientific findings or conclusions.”

The administration’s actions also obstruct an integral component of democratic policymaking. To meaningfully engage in political processes, citizens must have access to accurate information that has not been editorialized or modified. Only with unbiased facts can they understand and shape key decisions that impact their local environments.

Public Participation and Accountability

Public participation is the bedrock of environmental democracy; yet the new administration’s plans may undercut this pillar of good governance. While meeting with business leaders during his first day in office, President Trump declared that the government must eliminate regulations and expedite permitting processes for large development projects. Effective, efficient rule-making should be a goal for policymakers, but it must not come at the cost of public participation.

Many of the EPA’s and other agencies’ procedures—such as air and water discharge permits, waste cleanup plans and Environmental Impact Assessments—require a public consultation process. Soliciting public participation allows policymakers to consider the needs of all stakeholders who may be affected by projects like oil and gas extraction and mining and road construction, and enables them to better identify unintended consequences. Long-term, policies developed with community input often get more public support and less resistance because citizens perceive these decisions as fair and legitimate.

The Dakota Access pipeline project showcases the importance of public participation. In July 2016, the Standing Rock Tribe filed a complaint against the U.S. Army Corps of Engineers, the agency that grants permits needed to construct the pipeline. They claimed that, by crossing under the Missouri River, the pipeline posed a serious threat to the community’s clean water and sacred burial grounds. Their complaint further alleged a breach of the National Environmental Policy Act and the National Historic Preservation Act on the grounds of failure to consult with affected parties, adverse effects on water health and failure to assess scared sites.

In December, following weeks of public protests, the Corps decided it would delay the project in order to conduct an Environmental Impact Statement, which would explore alternative routes for the pipeline. This result shows the power and necessity of public participation—people’s involvement is critical for protecting communities and for finding the safest, most appropriate options for infrastructure projects.

But on his second day in office, Trump ordered the Corps to “review and approve [the pipeline] in an expedited manner,” without considering alternative routes or conducting a public consultation. His directive effectively thwarts the public participation process to resolve what has become the biggest joint protest of Native American Indian tribes in decades.

The Way Forward

The United States has long been recognized as a global leader in establishing rights to environmental information, to accurate and objective scientific resources, and to public participation in decision-making processes. It currently holds the third-highest ranking on WRI’s Environmental Democracy Index, which scores countries on their ability to provide these fundamental rights.

The EPA and other government agencies’ mandate to use science to inform policies, to conduct extensive public consultations, and communicate openly with people plays a foundational role in protecting people’s health and the environment. Pursuing and sharing scientific data and evidence is integral to this process. The Trump administration, its agencies and their staff have an obligation to protect and continue America’s strong leadership on environmental democracy.

#GreenAlert

#GreenAlert encourages active citizenry, by providing the public with actionable information about development plans, along with tools for citizens to formally engage with the public review and policy formation processes and to connect with citizen or watchdog groups to lobby for citizen inclusion in decision-making processes.

#GreenAlert encourages greater transparency among governments and corporations by reducing secrecy in the decisions that are made about the use of natural resources.

#GreenAlert encourages greater public discourse and greater public participation in development issues, by creating demand-driven platforms for public comments and sharing of expert research or opinions on development by the general public, experts, civil society, media and community members.

Citizen Enforcements of Procedural Rights in the Environmental Impact Assessment Process in Belize and Jamaica         

Published: 2011

The inclusion of procedural rights of access to information, public participationand access to justice in environmental decision-making are recognized in international treaties and soft law agreements as central to the sustainable development agenda. Since the 1990s, a number of Caribbean countries have enacted environmental legislation requiring the preparation of an Environmental Impact Assessment (EIA) prior to permitting significant developments . The extent to which procedural rights have been included within EIA provisions however is varied. There has been little analysis of the impact of the use by citizens of procedural rights in these EIA processes.

This paper examines the legislative framework for EIAs and citizen enforcement of procedural rights in the decision-making process for proposed developments in Jamaica and Belize. The legislative frameworks adopted by Belize and Jamaica are significantly different; with the former enacting comparatively comprehensive regulations to guide the EIA process and the latter dependent on internal guidelines. In both countries there has been documented failure in law and practice to deliver effective procedural rights. A review of recent court decisions in Belize and Jamaica illustrates the value of citizen enforcement as a means of safeguarding procedural rights in the conduct and review of EIAs as well as demonstrating the failure in compliance.

ACCES A L’INFORMATION : CAS DE L’EXPLOITATION MINIERE DE Qit Madagascar Minerals (QMM) DANS LA REGION ANOSY (Fort Dauphin)

Published: 2011

Les industries minières sont considérées par le Gouvernement malagasy d’être des industries stratégiques pour le développement de Madagascar. Elles sont aussi sources d’impacts sociaux et environnementaux non négligeables. QIT Madagascar Minerals (QMM), détenue à hauteur de 80% par Rio Tinto et de 20% par l’Etat malgache représenté par l’Office des Mines National et des Industries Stratégiques (OMNIS), a mis en chantier une opération d’extraction de sables minéralisés, à Mandena, Taolagnaro dans la Région Anosy pour une durée de 20 à 25 ans. Le projet minier est localisé dans un environnement naturel très sensible avec un taux d’endémisme élevé et un écosystème littoral unique. L’étude de ce cas relatif à l’exploitation des sables minéraux (ilménite et zircon) à Fort-Dauphin se base alors sur les problématiques suivantes : y a-t-il une (des) initiative(s) du Gouvernement et de la compagnie minière pour l’accès du public à l’information sur le projet? Quelles sont les portées de celles-ci au niveau de la population ? L’objectif est d’identifier les lacunes juridiques, institutionnelles et les pratiques sur l’accès à l’information par rapport à l’environnement, la biodiversité et fournir des recommandations afin de combler ces lacunes.

Environmental and Social Assessment Memos

Published: 2008

The objective of these memos is to provide helpful informational research to further populate the available materials on access rights issues.

The information memos are commissioned by the TAI Secretariat. They represent the ideas and thoughts of their respective authors and do not represent the official position of the Access Initiative or the TAI Secretariat. While the secretariat does its best to ensure the quality of these memos they are essentially the work of their respective authors who take full responsibility for their content. Please contact the TAI Secretariat if you have ideas for topics which are not covered in the current research.

Canadians Debating to Lower Environmental Safeguards

By David Heller (Posted: February 13, 2009) 

Canada, like many of its neighbors, is struggling to balance the competing needs of economic improvement and environmental protection during this global depression. Included in Canada’s 2009 federal budget, recently presented to Parliament, are suspicious provisions that encourage “regulatory efficiency” in infrastructure projects designed to jump start their lagging economy. Leaked documents suggest that this expediency might come at the cost of weakening the Canadian Environmental Assessment Act (CEAA), a price that many Canadian environmentalists are not willing to pay.

Under the current CEAA, federal departments, agencies, and crown corporations must conduct environmental impact assessments (EIA) for proposed projects where the federal government is the proponent, or where the project involves federal funding, permit, or license. These EIAs, though frequently ridiculed for causing delays in the construction process, are often the only means people have to participate in assessing government projects and intervening when such projects are perceived to have unwarranted environmental costs.

The budget that Canadian Prime Minister Stephen Harper introduced to Parliament on January 27th devoted more than $2 billion towards transforming the Canadian economy into a sustainable and environmentally friendly one, but also included provisions that might undermine this process by making certain projects exempt from EIA oversight.

Authors of the 2009 budget claim that full compliance with CEAA impedes Canada’s economic recovery. “Currently,” the budget states, “infrastructure approval processes are subject to duplication and inefficiencies in administration, leading to unnecessary project delays.”

In order to address this perceived flaw, the budget says that “…regulatory efficiencies will be pursued for projects subject to the Canadian Environmental Assessment Act.” [Emphasis added].

Leaked documents received by the left New Democrats Party indicate that this interest could manifest itself in several forms. The first possible route being examined is eliminating the need for EIAs on certain infrastructure projects costing less than $10 million. Another option is reducing oversight on bigger projects, which currently require separate EIA assessment at the provincial and federal levels.

In line with this first option, the Toronto Star reports that Federal Infrastructure Minister John Baird is targeting certain less costly and “environmentally friendly” projects for EIA exemption. As Baird says, “We’ve got a lot of rules in place to stop bad things from happening, but we don’t have anything to help good things happen, particularly for things like public transit and waste-water treatment that improves water quality.”

The other alternative being tinkered with by Conservatives is designed to combat the time cost associated with fulfilling the EIA mandate. Echoing the redundancy cited in Canada’s official budget proposal, Baird told several newspapers that, “There’s a real hodge-podge of environmental assessment requirements – of overlap and duplication. Many of them are just duplicating what’s done at the provincial level.”

There is legitimacy to these latter concerns given the depression and the immediate economic value that construction can bring. But the logic behind the first option, that certain projects (like water treatment plants or public transit infrastructure) ought to be exempt from an EIA because their purpose is to mitigate environmental harm, is terribly flawed.

Barring the invention of environmentally friendly bulldozers, shovels, and the like, a project’s finished product ought to not blind Canadians to the harm that the project’s construction might wreak on surrounding areas. For this reason, allprojects, regardless of their purpose and cost, must be subject to at least one EIA.

As alluded to earlier, the EIA also provides a valuable civic service to the Canadian people. Jamie Kneen of Mining Watch Canada, an environmental watchdog organization, highlighted the fact that the EIA can facilitate the exchange of information between people while allowing public concerns about certain government actions to be addressed.

“Whether it’s a small footbridge or a huge open-pit mine, if a project is badly designed or if it’s just a bad idea to begin with, the public needs a way to make sure it is fixed or stopped,” Kneen said.

Ongoing debates within governments are framed within the anachronistic concept that economic recovery must come at the expense of environmental harm. It is necessary to forego these false zero-sum boundaries, by tethering economic growth to spending that will have positive short- and long-term implications for the environment. Only EIA-approved investment that addresses climate change, taps into renewable sources of energy, and creates sustainable and healthy communities can effectively satisfy the two public goods of economic recovery and environmental protection.

Please continue checking back to see how the planet’s governments are responding to this universal challenge.

Stimulus or Environment – Must We Choose?

By Seema Kumar (Posted: February 6, 2009) 

The American Recovery and Reinvestment Act of 2009, the infamous stimulus package that is regarded as the much needed bandage to the ailing U.S. economy, is locked in Congressional tension. If passed, the Act would inject an almost $900 billion into federal programs and projects, with the explicit purpose of creating jobs, investing in infrastructure, advancing energy efficiency, and restoring credit confidence. Amendments to the bill have been aggressively tossed back and forth in the name of urgency and relevance to stimulation, and one in particular has enraged environmentalists.

U.S. Republican Senator John Barrasso of Wyoming, in a February 4, 2009 press release, depicted the National Environmental Policy Act (NEPA) as a red-tape inhibitor, which is hindering the implementation of “shovel-ready” projects that are otherwise prepared to proceed with construction, but for a NEPA mandate that requires the environmental impacts of federally-funded projects be reviewed and mitigated. Senator Barrasso’s amendment specifically seeks to “streamline” the NEPA process with a 270-day deadline to complete an environmental review for stimulus package projects. Under the current NEPA provisions, environmental reviews are not subject to such deadlines.

The U.S. Chamber of Commerce along with a band of business representatives have endorsed Barrasso’s amendment. In fact, the U.S. Chamber of Commerce has been a long-time advocate to revise NEPA, as evident from a Comment of its Initial Findings and Draft Recommendations on improving NEPA it submitted to the NEPA Task Force on February 6, 2006. The Comment characterizes NEPA as a “weapon to delay and eventually terminate, through attrition, proposed projects that some people oppose.”

According to Steven Biel, Greenpeace’s global warming campaign director, NEPA “is an absolutely essential review to ensure public involvement in public works decisions… There are more than enough shovel-ready projects out there that have already undergone NEPA reviews. There is absolutely no reason why this process needs to be waived.”

In response to Barrasso, Senate Environment and Public Works Committee Chairwoman Barbara Boxer (Democrat-California) quickly retorted with an amendment of her own, which would require that any project that is not in compliance with NEPA either finalize its review or be replaced by another project that has a final review.

As the Senate readies to vote on the stimulus package, for the sake of the economy and the environment, it is crucial that President Obama emphasizes the purpose of this bill – jobs, infrastructure, energy efficiency, and credit confidence – and asks Congress some probing questions:

How is it logical to argue whether projects that have not conducted a proper environmental assessment should violate existing law while projects that are truly “shovel-ready”, worth millions in dollars and job creation, can benefit from stimulus funds right now?

How does curbing NEPA promote to energy efficiency when the potential consequences of such actions could threaten public health and energy independence?

How can America invest in solid infrastructure without prescribing to the necessary procedures and assessments (including environmental) needed to ensure public safety and durability?