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The Nature of Law Newsletter, September 2009

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PROVIDING NEWS & PERSPECTIVES ON ENVIRONMENTAL, SOCIAL & INTERNATIONAL LAW PRACTICE

Issue 9, September 2009

Message from the Chief Counsel


I am pleased to forward to you the 9th Edition of the LEGEN newsletter. We continue to focus on developments in law that may be of interest to the sustainable development community. This edition highlights China's new law on Strategic Environmental Assessment, the granting of precautionary measures to stop dam construction in favor of the Ngobe Tribe of Panama by the Inter-American Human Rights Commission, the current draft US Climate legislation, and a brief summary by the World Bank's water law advisor of the events that took place at this summer's 5th World Water Forum.

As always, if you have questions on any of these or related matters, please contact us at LEGEN.

Charles E. Di Leva
Chief Counsel, Environment and International Law Unit
Legal Vice Presidency - The World Bank

Viewpoint


China Adopts New Law on Strategic Environmental Assessment
By Yuan Tao

The Inter-American Commission on Human Rights Grants Precautionary Measures in Favor of Panama’s Ngöbe Indians 
By Salman M. A. Salman & Yuan Tao

The American Clean Energy and Security Act – a Historical Step by the US Government
By Sachiko Morita

The Fifth World Water Forum
By Salman M. A. Salman



China Adopts New Law on Strategic Environmental Assessment
By Yuan Tao

China’s State Council issued on August 17, 2009 the long-anticipated Regulations on Environmental Impact Assessment of Plans and Programs, more commonly known as China’s strategic environmental assessment law (China SEAL), which will take effect as of October 1, 2009.

China SEAL was passed in an effort to fill the gap between development planning and environmental scrutiny, attempting to avoid environmental harms being discovered and corrected only ex post. To that end, China SEAL is intended to guide and evaluate policy and planning activities, at both national and local levels, and to strengthen the capacity of sectoral institutions to integrate environmental and sustainability implications of development in their planning and implementation.

As early as 2002, China introduced the Environmental Impact Assessment Law (the EIA Law), a milestone step towards more effective environmental governance. The EIA Law can be loosely likened to the U.S. National Environmental Policy Act 1970 (NEPA), which requires federal agencies to consider environmental impact in their decision-making. Unlike NEPA, however, China’s EIA Law directly targets individual projects and business facilities. The project-oriented process under the EIA Law was seen as deficient in many ways, as it only dealt with specific effects incurred by a particular project whereas many environmentally damaging decisions had already been made at a more strategic level. Although certain provisions in the EIA Law allude to strategic environmental assessment, those provisions have never been put into effect.

Under China SEAL, for the first time, the responsible authority will be mandated to conduct an environmental assessment during the preparation of a plan or program and before its adoption or implementation. The legal requirement for an environmental assessment is triggered if a plan or program is prepared for land use, coastal and regional development, river basin, industry, agriculture, animal husbandry, forestry, energy, water conservation, transportation, urban construction, tourism, or natural resources development. The assessment must analyze, anticipate and evaluate a contemplated plan’s (1) macro impact on the ecological system in the relevant river basin and regional and coastal area; (2) long-term effects on human health; and (3) both short-term and long-term economic, social and environmental costs and benefits.

As a strategic environment assessment is conducted before a corresponding project-based environmental assessment is undertaken, information on the environmental impact of a plan will be able to cascade down through the tiers of decision making and be used in an environmental assessment at a later stage. This should alleviate the concern of duplication of efforts or insufficient resources to handle the volume of environmental assessment reports.

Recognizing that transparency and quality of information are key to the success of environmental assessment, China SEAL requires an information sharing mechanism be established among government agencies at county level and above. As a result, information germane to an informed policy decision can be gathered expeditiously at little or no cost and can then be factored into an agency’s decision-making process.

One classic critique of the EIA Law is that the law falls well short of what is considered meaningful public participation in the process of environmental assessment. China SEAL seems to have taken a step forward in this regard. If significant controversy remains after the initial round of public involvement, the public will be offered more opportunities to voice their opinions and concerns.

Another encouraging development under China SEAL is that it places great emphasis on the monitoring of plans and programs after their implementation, in order to evaluate the actual impact of a plan vis-à-vis the anticipated impact depicted in the original assessment report.

China SEAL marks a new significant step in the nation’s progress towards a greener economy. Slowly but surely, it will transform China’s conventional model of policy making and development planning. Of equal importance is for the executing agencies to ensure that the goal of the law will not be eviscerated by weak enforcement.



 
The Inter-American Commission on Human Rights Grants Precautionary Measures in Favor of Panama’s Ngöbe Indians
By Salman M. A. Salman & Yuan Tao

On June 18, 2009, the Inter-American Commission on Human Rights (the Commission) granted precautionary measures in favor of the indigenous Ngöbe communities. The precautionary measures called on the government of Republic of Panama (Panama) to suspend all work on a hydroelectric dam that threatens the Changuinola River in Bocas del Toro, a long-standing homeland for the Ngöbe people.

Background

According to the request for precautionary measures, in May 2007, a 20-year concession was approved for a company to build hydroelectric dams along the Changuinola River. One of the dams authorized to be built, the Chan-75, will likely flood the area where four Ngöbe indigenous communities of about 1,000 people have been established. Another 4,000 Ngöbe people may also be affected by the construction of the dam. The Ngöbe community contended that the lands affected by the dam are part of their ancestral territory and are used to carry out their traditional hunting and fishing activities.

The Commission decided to grant precautionary measures in order to avoid irreparable harm to the right to property and security of the Ngöbe indigenous peoples. The Commission requested that Panama suspend construction and other activities related to the concession until the bodies of the Inter-American human rights system can adopt a final decision on whether there have occurred violations of certain rights protected under the American Convention on Human Rights (the Convention).

The Commission’s role in the Inter-American human rights system 

Pursuant to the Convention, there are two bodies responsible for overseeing compliance with the Convention: the Commission and the Inter-American Court of Human Rights (the Court).

The mandate of the Commission is to promote the observance and defense of human rights in member States. Accordingly, the Commission can, among other things, (1) hear a petition and, after deliberating the merits of the case, issue a report (i.e., a decision) (Report); (2) grant precautionary measures, with or without a petition for a full-blown adjudication; and (3) refer cases to the Court and litigate those same cases before the Court.

Unlike the Commission, the Court is a judicial institution that rules on cases brought before it. When ratifying the Convention, a State party must voluntarily submit to the Court’s jurisdiction for it to be competent to hear a case involving that State. Acceptance of contentious jurisdiction can be given on a blanket basis. Panama has given its blanket acceptance of the Court’s jurisdiction.

The interplay between the Commission and the Court

According to the Convention, cases can only be referred to the Court by either the Commission or a State party. Individual citizens of member States cannot take cases directly to the Court. Instead, they must first lodge a complaint with the Commission and have the Commission rule on the admissibility of the claim. If the case is ruled admissible and the State deemed at fault, the Commission will generally serve the State with a Report which contains a list of recommendations to make amends for the violation. If the Commission considers that the State has not complied with the recommendations of the Report, it must refer the case to the Court, unless there is a valid reason for not doing so.

Whether a State party can submit a case to the Court is not as clear. However, Article 51 seems to imply that, within a period of three months from the date of the transmittal of the Report of the Commission to the States concerned, the matter can be submitted by the State concerned to the Court.

The Commission's precautionary measures

In serious and urgent cases, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm. Precautionary measures can be granted on a stand-alone basis. Moreover, the granting of such measures and their adoption by the State would not constitute a prejudgment on the merits of a case. In that sense, precautionary measures could be loosely likened to injunctions in judicial proceedings, though their enforcement would by and large hinge upon the goodwill of the member States.

Appeals

The question that follows is whether a member State in question can appeal. Based on the foregoing, there would be three types of appeals under the Convention: (1) appeals of precautionary measures; (2) appeals of Reports by the Commission; and (3) appeals of judgments by the Court.

Appeals of precautionary measures - Neither the Convention nor the Commission’s Rules of Procedure (CRPs) provides for appeal mechanisms for precautionary measures. Therefore, a textual interpretation would yield that such appeals do not really exist under the Convention or the CRPs.

Appeals of Commission Reports - The CRPs are silent on whether the Commission Reports can be appealed. However, Article 51 of the Convention implies that a matter can be submitted to the Court by the State concerned, within three months of the transmittal of the Report to that State. Article 51, read in conjunction with Article 61 of the Convention (which says a State has the right to submit a case to the Court), seems to provide the respondent State with a window to appeal, because the only logical reason for the State to submit the case to the Court during the three-month period would be because the State disagrees with the Commission's findings in its Report.

Appeals of Court Judgments - The Convention makes it clear that “the judgment of the Court shall be final and not subject to appeal.” The only exception is when there is disagreement as to the meaning or scope of the Judgment, in which case the Court must interpret it at the request of any of the parties.

The Ngöbe people won this victory, symbolic or otherwise, at the heels of two recent landmark cases. On the very same day, Peruvian Congress voted to repeal two controversial laws, in an attempt to drop criminal charges against indigenous leaders and allow independent investigation into violent incidents in Bagua, Peru; and several months ago, in December 2008, the indigenous Awas Tingni community in Nicaragua recouped the title to its traditional lands from the Nicaraguan government and thus gained recognition and protection of its ancestral territory. These events have been viewed by some to signal an emerging trend towards fuller recognition of rights of indigenous peoples through both legal and political processes, particularly in Latin America.


 
The American Clean Energy and Security Act – a Historical Step by the US Government
By Sachiko Morita

The American Clean Energy and Security Act ("ACES" or the Waxman-Markey Energy Bill) passed the US House of Representatives by a vote of 219-212 on June 26, 2009. The legislation, introduced by the Energy and Commerce Committee Chairman Henry A. Waxman and the Environment and Energy Subcommittee Chairman Edward J. Markey, provides a comprehensive approach to America’s energy policy. Totaling over 1400 pages, the legislation would impose limits, for the first time, on CO2 and other greenhouse gases (GHGs) from power plants, factories and refineries to reduce these emissions in the US. The bill comprises five titles as follows.

Title I – Clean Energy: a nationwide renewable electricity standard (RES) would be established, whereby each electricity provider who supplies over 4 million MWh would be required to produce 6 % of total electricity from renewable sources (Eligible renewable sources are: wind, solar, geothermal, renewable biomass, biogas derived exclusively from renewable biomass, biofuels, qualified hydropower commissioned after 1992 and marine and hydrokinetic sources.) by 2012 and 20% by 2020. The bill would also require coal-fired electricity generators to meet strict emission performance standards. These standards would effectively make the implementation of carbon capture and sequestration (CCS) technology mandatory at new coal-fired power stations. New coal-fired power stations that implement CCS technologies would be eligible to receive federal financial assistance in the form of freely allocated emission allowances, under certain conditions. The bill also provides for expanded production of electric vehicles.

Title II – Energy Efficiency: new energy efficiency standards would be mandated for appliances, buildings, transport and industry. The Government would provide funds to support energy efficiency projects and technologies. The bill would, for example, require State governments to update building codes, which would require new buildings to be 30% more energy efficient by 2012 and 50% more efficient by 2015.

Title III – Reducing Global Warming Pollution: a national cap-and-trade scheme is established that aims to reduce GHG emissions from major sources (electricity generators, oil refiners, natural gas suppliers, and energy intensive industries) by 17% by 2020 and 83% by 2050 relative to 2005 levels. This proposed scheme would commence in 2012. At the start of the scheme, approximately 85% of emission allowances would be allocated gratis to reduce the impact of the scheme on key sectors.

The bill would permit parties to use up to 2 billion emission offsets to meet their obligations under the scheme in any given year. Up to half of these offsets can be obtained from domestic sources and the other half from international sources (with trading programs that are at least as stringent as the US program). The penalty for failure to comply with the emission cap will be a fine of two times the ‘fair market value’ of the missing allowances.

The bill would require that pre-existing state and regional emissions trading schemes be suspended between 2012 and 2017. Allowances issued under these schemes before December 31, 2011 would be redeemed or exchanged for federal allowances.

Title IV – Transitioning to a Clean Energy Economy: includes a number of measures intended to reduce the impacts of the Bill on industries and persons likely to be affected by the transition to a clean economy. These measures include: increased funding for the Energy Worker Training Program; entitlements for workers displaced as a result of the Bill; and college and university grants to prepare students for careers in the renewable energy and energy efficiency fields. One provision that has attracted particular attention is the “border adjustment” provision designed to safeguard the competitiveness of US manufacturing industries facing foreign competitors who are not subject to comparable emissions regulation. Under Part F of this Title, the President could, as of 2020, impose a requirement to submit emissions allowances on certain imports from countries that do not meet the specified emission reduction criteria.

Title V – Offsets from Domestic Forestry & Agriculture: These domestic agriculture and forestry offset programs are overseen by the Secretary of Agriculture (see above).

The proposed cap-and-trade system may result in a rise in energy costs. The Congressional Budget Office (CBO) estimates that the bill would increase energy costs for an average American household by US$175 a year. However, the Bill includes measures to cushion such potential increase, for example by granting low-income consumers credits and rebates.

After the summer recess, the Bill will be sent to the Senate, which has drafted a comparable bill on energy and climate change, called the American Clean Energy Leadership Act (ACELA). The Bill needs at least 60 votes to pass the Senate, and will need to be “reconciled” with the Senate’s ACELA. If this happens, the joint legislation will be sent to both chambers for a final vote, before being sent to the President for signing into law.

If the Bill does not become law, it may still be possible to regulate the CO2 emissions under the existing law, such as the Clean Air Act (CAA). In Massachusetts v. EPA, the US Supreme Court, in a 5-4 decision, found CO2 and other GHGs to be an “air pollutant” that can be regulated under the Act, and that EPA had the authority to regulate them. However, the CAA was designed to meet the immediate and direct impacts of “traditional” pollutants, with local or regional, rather than global impacts. Therefore, EPA would still need to go through the administrative process required to promulgate some regulations to adequately address the challenges posed by GHGs, even if the Agency were to regulate the GHGs under CAA.

As noted earlier, this is the first time that the US is taking a step toward limiting its GHG emissions at the federal level. It is not certain whether this Bill will become law before the UNFCCC meeting in Copenhagen this December. Regardless of the timing, the passage of the Bill will be an important step forward toward global effort to addressing climate change.


 
The Fifth World Water Forum
By Salman M. A. Salman

More than 30,000 delegates gathered in Istanbul during the period March 16 - 22, 2009, for the fifth World Water Forum. The World Water Forum is an event held every three years, organized by the World Water Council in collaboration with the host country.

The first World Water Forum was held at Marrakech, Morocco, in 1997, and led to the presentation of “A Vision for Water, Life and the Environment in the 21st Century.” The second Forum was held at The Hague, The Netherlands, in 2000, where a large number of governments and organizations attended, paving the way for wider representation at the future forums. The third Forum took place at Kyoto, Japan in 2003, and the fourth in Mexico City in 2006. Attendees at these forums range from government officials, including ministers and parliamentarians, representatives of international organizations, international financial institutions, and non-governmental organizations, as well as the private sector and academia.

A number of issues usually dominate the discussion at the Forum. The debate on dams and their costs and benefits, the role of the private sector in water management, and the issue of the right to water have been the dominant ones since the beginning. The Fifth World Water Forum built on the experience of the previous forums, and centered on the theme “Bridging Divides for Water.” The issue of climate change and its effects on water resources was debated at length, and the different regional and sectoral perspectives and experiences were presented and discussed. Other sessions dealt with water-related migration, changing land use and human settlements, ecosystems, as well as managing disasters, energy, storage and the multiple use and functions of water services. A number of sessions deliberated on basin management and transboundary cooperation generally, and with regard to some specific basins, including groundwater. Involvement of stakeholders and the private sector was also debated, and developments in water science and technology were also presented.

The Istanbul Ministerial Statement issued at the end of Forum reaffirmed the prior commitments made by national governments to achieve the internationally agreed upon goals on water and sanitation, including those in Agenda 21, and the Johannesburg Plan of Implementation, and referred to the challenges in meeting the Millennium Development Goal related to access to water. The Statement also highlighted the various problems the world is facing, including population growth, migration, urbanization, climate change, desertification, drought, degradation and land use changes, and the effects of that on water resources availability and management. It called on concerted efforts and collaboration to meet those challenges.
 

 

 

 

 

 

 

 

 

 

  


The Environment and International Law Unit of the World Bank’s Legal Vice Presidency (LEGEN) provides advice to the Bank on all environmental and international legal and policy issues related to Bank-financed, implemented and/or supported projects.

For futher information, please email us: legalhelpdesk@worldbank.org


Last updated: 2011-09-05




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