A technological and science-based civilization has the capacity – and the imperatives – to mount large-scale initiatives that impact the environment. A rational program to protect the environment is one which anticipates the impacts that such initiatives will have; if the initiatives do not promise to be environmentally neutral, their costs and benefits can be weighed in advance and alternatives may be invented. Because the environment is a common resource on which all members of the community depend, procedures for deciding on projects which may impact the environment should be as democratic as possible, for public participation, while a value in itself, also enables the mobilization of sectors of the public for the defense of the environment. And in as much as the environment knows no boundaries, procedures should allow for transnational participation.
Among the repertory of techniques for making rational decisions about those initiatives, the environmental impact assessment or eia is the most widespread. The forerunner of eia practice was the United States’ National Environmental Policy Act of 1970. It has been followed by comparable legislation in almost all members of the United Nations and, because of the transboundary effects of many initiatives, its place in international law has been confirmed by the International Court of Justice.
That said, there is a world of difference between the prescription of policy and its actual application. Legal systems have no shortage of lex imperfecta and lex simulata: legislative exercises which look effective and pay lip service to the common interest but are actually intended to be virtually hollow, containing only the seeds of their own ineffectiveness. Viviane Meunier-Rubel, an international legal scholar committed to procedures enhancing sound environmental decisions in a public order of human dignity, insists on asking whether the eias really are mere “paper tigers” or whether they can play a “significant determinative role in environmental protection and international law making”. She traces the history, diffusion and practice of eias transnationally before focusing, in granular detail, on three transnational cases: the Vuotos dam and reservoir project for hydropower in Finland; an extra-high voltage power line between France and Spain as part of the development of the European power grid; and the Upper Mekong Navigation Improvement project.
Sir Henry Maine famously said of the Common Law that it seems to secrete substantive law in the “interstices of procedure”. So too eias. Though the outcomes of these cases vary, Ms. Meunier-Rubel shows that the eia has emerged as a common procedural experience which can empower individuals to
Readers of this brilliantly written and ground-breaking book will find that Meunier-Rubel’s guarded optimism is warranted and one hopes that many will be inspired to apply her methodology and her insights for the benefit of the earth’s environment.
Michael Reisman
Yale Law School
New Haven, Connecticut – U.S.A.
July 6, 2021