Ten principles of quality in environmental impact assessment

Environmental and Planning Law Journal

Volumn 14, Issue 3, 1997, Pages 207-221

  Raff, Murray ^a  

^a UNIVERSITY OF MELBOURNE   (Australia)

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EID: 84871563799     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (149)

1. Referred to here as the NEPA model, established in the USA by the National Environmental Policy Act 1969, 42 USC 4321. I have discussed the derivation of Australian environmental impact assessment (EIA) from the NEPA model in M J Raff, "The Renewed Prominence of Environmental Impact Assessment: A Tale of Two Cities" (1994) 12 EPLJ 241. With respect to New South Wales see Bailey v Forestry Commission of New South Wales (1989)
2. LGRA 200 at 209-210. See also M Squillace, "An American Perspective on Environmental Impact Assessment in Australia" (1995) 20 Columbia Journal of Environmental Law 43.
3. N A Robinson, "International Trends in Environmental Impact Assessment" (1992) 19 Boston College Environmental Affairs Law Review 591 at 597ff.
4. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
5. This is supported by the adoption of this model by the European Union. Directive on the Assessment of the Effects of Certain Public and Private Projects on the Environment of 27 June 1985 (85/337/EEC). That the relevant model to be adopted appears so adamantly left open in the Economic Council of Europe's Convention on Environmental Impact Assessment (UN Doc A/CN 4/428 (1990) and the OECD Recommendation on the Assessment of Projects with Significant Impact on the Environment of 8 May 1979 (C(79)116) can be seen as an accommodation of other countries which have other (often better) systems. This suggests perhaps that an international document which does not leave the choice of model open could well be interpreted to intend at least the NEPA model.
6. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
7. In Victoria called an Environment Effects Statement (EES). The term "Environmental Impact Statement" is used below to denote this form of primary evaluation of environmental impacts common in jurisdictions which have adopted the NEPA model.
8. In contrast, see B J Preston, "Adequacy of Environmental Impact Statements in New South Wales" (1986) 3 EPLJ 194; G D Meyers, "Divining Common Law Standards for Environmental Protection: Application of the Public Trust Doctrine in the Context of Reforming NEPA and the Commonwealth Environment Protection Act" (1994)
9. EPLJ 289; and G M Bates, Environmental Law in Australia (4th ed, Butterworths, 1995), pp 169-179.
10. Environmental Defence Society Inc v South Pacific Aluminium (No 4) [1981] 1 NZLR 530 at 535.
11. Environmental Planning and Assessment Act 1979 (NSW).
12. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
13. See Scurr v Brisbane City Council (1973) 133 CLR 242.
14. See Environmental Planning and Assessment Act 1979 (NSW) and Regulations.
15. The Victorian Guidelines are reproduced in Morris, Barker & Bryant, Planning & Environment-Victoria (Butterworths, Melbourne, 1989) (Looseleaf), p 31,501 fF. See also Is an EIS required? Best Practice Guidelines for Part 5 of the Environmental Planning and Assessment Act 1979 NSW (1995).
16. Impact Assessment in Queensland: Policies and Administrative Arrangements (1988).
17. Guide to the Assessment of Projects of Major Significance South Austral ia (1992).
18. A Guide to Environmental Impact Assessment in Western Australia (1993).
19. Environmental Assessment Administrative Procedures (1984) NT; and A Guide to the Environmental Impact Assessment Process in the Northern Territory (1996).
20. They do not appear to be Statutory Rules for the purposes of the Subordinate Legislation Act 1962 (Vic), but probably are a Subordinate Instrument under the Interpretation Of Legislation Act 1984 (Vic). The Minister is by s 10 empowered to "lay down" the Guidelines. In this respect the Minister is constituted as a direct delegate of Parliament, and comparison could be made to other delegates of legislative capacity. On this view Guidelines must, at least, be considerations which may not be disregarded according to Administrative Law principles. Note the attempt in s 22, Interpretation of Legislation Act 1984 (Vic) to minimise the effects of contravening the principle of simple ultra vires.
21. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
22. "Environment Protection (Impact of Proposals) Administrative Procedures 1987" (Commonwealth Government Gazette, 29 May 1987) later amended by "Environment Protection (Impact of Proposals) Administrative Procedures (Amendment) 1995" (Commonwealth Government Gazette, 5 May 1995).
23. (1996) 90 LGERA 106.
24. The same conclusion was reached on the status of Guidelines issued and Regulations made under NEPA in the case of Committee to Stop Route 7 v Voìpe 346 F Supp 731 at 736737 and 741 (1972).
25. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
26. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
27. Environmental Defense Fund Inc v Corp of Engineers of the US Army 325 F Supp 749 at 759 (1971).
28. 427 US 390 (1976).
29. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
30. [1981] 1 NZLR 530 at 534-535. See also the US case of Hawthorn Environmental Preservation Association v Coleman 417 F Supp 1091 (1976), which has not been doubted in the ensuing 20 years.
31. (1995) 85 LGERA 296 at 323-325. Interestingly, the listing of an endangered species since EIA of a forestry area was completed also justified re-opening the issue in Headwaters Inc v Bureau of Land Management F 2d 435 at 436 (1991).
32. This point is implicit in virtually all US cases on the point. See, eg, Appalachian Mountain Club v Brinegar 394 F Supp
33. (1983) 48 LGRA 266 at 269-270. This case was a suit for judicial review.
34. (1982) 47 LGRA 38.
35. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
36. Section 112, Environmental Planning and Assessment Act 1979 (NSW).
37. (1990) 71 LGRA 79 (handed down 4 March 1988).
38. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
39. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
40. (1989) 67 LGRA 200 (handed down 31 March 1989).
41. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
42. Silva v Lynn F 2d 1282 at 1286 (1973). The court included in the wider issues for consideration, in the context of a housing project, noise, disposal of solid waste, water supply, shortage of school facilities requiring out-of-town busing of children, and traffic implications, at 1287, note 6.
43. Daly v Volpe 350 F Supp 252 at 258 (1972).
44. City of Los Angeles v National Highway Traffic Safety Administration 912 F 2d 478 at 495 (1990).
45. National Wildlife Federation v Federal Energy Regulatory Commission 912 F 2d 1471 at 1477 (1990). Sierra Club v Watkins 808 F Supp 852 at 863 (1991)-cumulative or synergistic effects of continuing action leads to EIA of the entire program. See also Atchison, Topeka and Sante Fe Railway Co v Callaway 382 F Supp 610 at 618 (1974).
46. 808 F Supp 852 at 863-864 (1991).
47. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
48. Clauses 3 (ii), (iv), (v), (vi) and (vii).
49. Natural Resources Defense Council v Morton 458 F 2d 827 at 834 (1972).
50. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
51. Montgomery v Ellis'364 F Supp 517 at 526 (1973).
52. Wright v Inman and Independence Mining Co Inc 923 F Supp 1295 at 1303 (1996)-applying the standards of quality to an assessment made prior to grant of mining permission to a private company and requiring consideration of the "no action" alternative.
53. (1990) 71 LGRA 79 (handed down 4 March 1988).
54. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
55. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
56. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
57. Clauses 51 (1)(b) and 84(1)(b).
58. Jarasius v Forestry Commission (1987) 71 LGRA 79 at 96.
59. (S1PI Case) 481 F 2d 1079 at 1093 (1973). This case has been doubted only once in the 23 years since it was decided-in National Wildlife Federation v FERC 912 F 2d 1471 at 1478 (1990), its import with respect to future unproposed projects was doubted in view of Kleppe v Sierra Club 427 US 390 (1976). As discussed below in text at note 79 this has been considered an issue of triggering EIA in other cases, rather than an issue of the standard to be attained. In Sierra Club v Sigler 695 F 2d 957 at 979 (1983), there was considered to be a sufficiently concrete "proposal" of a project for NEPA when the agency started to trumpet the project's benefits because it was required also to be in a position to know its costs. See also Chelsea Neighbourhood Association v US Postal Service 389 F Supp 1171 at 1181 (1975).
60. Natural Resources Defense Council v US Nuclear Regulatory Commission 539 F 2d 824 (1976), esp at 842 and American Public Transport Association v Goldschmidt 485 F Supp 811 at 833 (1980).
61. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
62. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
63. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
64. 527 F2-d 786 at 795 (1975).
65. J A Henderson and R N Pearson, in "Implementing Federal Environmental Policies: The Limits Of Aspirational Commands" (1978) 78 Columbia Law Review 1429 at 1460.
66. (1990) 71 LGRA 79 (handed down 4 March 1988).
67. Environmental Planning and Assessment Act 1979 (NSW).
68. (1990) 71 LGRA 79 at 96 (handed down 4 March 1988).
69. (1989) 67 LGRA 200 at 210 (handed down 31 March 1989).
70. (1996) 90 LGERA 106 at 119-120.
71. (1995) 85 LGERA 296 at 333.
72. (1996) 90 LGERA 106 at 120.
73. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
74. Environment Protection Agency, Review of Commonwealth Environmental [sic] Impact Assessment-Assessment of Cumulative Impacts and Strategic Assessment in Environmental Impact Assessment, May 1994.
75. Environment Protection Agency, Public Review of the Commonwealth Environment Impact A ssessment Process-Discussion Paper, November 1994, p 54.
76. See Coalition on Sensible Transportation v Dole 826 F 2d
77. at 68 (1987), adopted in Preserve Endangered Areas v US Army Corps 916 F Supp 1557 at 1566 (1995). See also Public Service Co of Colorado v Andrus 825 F Supp 1483 at 1501 (1993) (an agency attempting to segment the scale of the plan it had "quietly" adopted by assessing each shipment of spent fuel rods alone had to submit a comprehensive EIS considering cumulative effects), and Shoshone-Paiute Tribe v USA 889 Fed Supp 1297 at 1308 (1993) (related actions must be considered in a single EIS
78. 346 F Supp 731 (1972).
79. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
80. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
81. 458 F 2d 827 at 835 (1972).
82. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
83. 427 US 390 (1976).
84. The test had been developed in Cady v Morton 527 F 2d 786 (1975) and Sierra Club v Morton SHF 2d 856 at 880(1975).
85. Kleppe v Sierra Club 427 US 390 (1976) majority at 404405, minority at 418.
86. See Agenda 21, Ch 10 for example.
87. 427 US 390 (1976).
88. 480 F Supp 980 (1979).
89. 695 F 2d 957 at 979 (1983). In some other cases it has been pointed out that EIA had already been conducted at two levels (national and local) and the issue was whether it should also be conducted at a regional level: see Atlanta Coalition on the Transportation Crisis v Atlanta Regional Commission 599 F 2d 1333 at 1342(1979).
90. See D 'Agnillo v US Department of Housing and Urban Development 738 F Supp 1454 at 1462-3 (1990). Many other "segmentation cases" have been unsuccessful on United States federal-State issues: see, eg, Daly v Volpe 514 F 2d 1106 (1975), and City of Boston v Volpe 464 F 2d 254 (1972).
91. 458 F 2d 827 at 834 (1972).
92. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
93. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
94. (SIPI Case) 481 F 2d 1079 at 1093 (1973). Quoted with express approval in Rhode Island Committee on Energy v General Services Administration 397 F Supp 41 at 55 (1975).
95. See Natural Resources Defense Council Inc v Morton 458 F 2d 827 at 834 (1972).
96. City of Romulus v County of Wayne 392 F Supp 578 at 588 (1975) for the view that remote and speculative alternatives not available in the project's time frame need not be examined in detail (crystal ball inquiry principle), and also, American Public Transport Association v Goldschmidt 485 F Supp 811 at 834 (1980) for further support of the proposition that EIA is also concerned with effects that might be largely unknown, and such issues are not to be dismissed as "crystal ball inquiries. " See further below at n 111.
97. Environmental Defense Fund v Corp of Engineers of the US Army 325 F Supp 749 at 761 (1971). In a recent case on this point an EIS was upheld partly because it did analyse the "no action" alternative, even if that alternative ultimately was not adopted in view of competing considerations: Seattle Audubon Society v Moseley 80 F 3d 1401 at 1404 (1996).
98. 464 F 2d 254 at 257 (1972). This passage was specifically approved in Jones v Lynn 354 F Supp 433 at 445 (1973).
99. Montgomery v Ellis 364 F Supp 517 at 528 (1973).
100. Emphasis added. Vic Roads Traffic in Melbourne Bulletin 5 even stated that a project had already started before EIA had even commenced.
101. For example, one might consider comments made by the Victorian Premier while the terms of reference of EIA were still being discussed: "we are committed to facilitating the private sector: building the Domain Tunnel before the next election and to finishing the Western Ring Road. " "We Must Dare To Succeed" in The Age (Melbourne), 18 November 1992, p 13.
102. Daly v Volpe 350 F Supp 252 at 259 (1972).
103. (SIPI Case) 481 F 2d 1079 at 1092. See also American Public Transport Association v Goldschmidt 485 F Supp 811 at 834 (1980).
104. 869 F 2d 719 at 755 (1989).
105. See D Collard, "Catastrophic Risk" in D Collard, D Pearce
106. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
107. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
108. The Intergovernmental Agreement on the Environment is now reproduced in the complementary legislation establishing the National Environment Protection Council: see National Environment Protection Council Act 1994 (Cth).
109. National Environment Protection Council (Victoria) Act 1995 (Vic).
110. National Environment Protection Council (New South Wales) Act 1995 (NSW).
111. (1993)81 LGERA 270 at 281-284.
112. Preamble: "Noting also that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat. "
113. (1993) 81 LGERA 270 at 282.
114. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
115. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
116. (1994) 84 LGERA 397 at 418-419.
117. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
118. (1995) 86 LGERA 143 at 154.
119. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
120. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
121. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
122. State of California v Bergland 483 F Supp 465 at 480 (1980).
123. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
124. 458 F 2d 827 at 838 (1972).
125. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
126. Virginia Law Review 185 at 238.
127. Prof M E Price, "Requiem For The Wired Nation: Cable Rulemaking At The FCC" (1975) 61 Virginia Law Review 541 at 564.
128. Judge H Leventhal, "Environmental Decisionmaking And The Role Of The Courts" (1974) University of Pennsylvania Law Review 509 at 528 and ProfS Estreicher, "Pragmatic Justice: The Contributions of Judge Harold Leventhal to Administrative Law" (1980) 80 Columbia Law Review 894 at 904.
129. Prof C M Rose, "Planning and Dealing: Piecemeal Land Controls as a Problem of Local Legitimacy" (1983) 71 California Law Review 837 at 876.
130. 400 F Supp 454 at 488-491 (1975).
131. 414 F Supp 99 at 112-113 (1976).
132. 547 F 2d 633 at 640 (1976).
133. 458 F 2d 827 (1972).
134. 547 F 2d 633 at 654 (1976).
135. Cripps J in Liverpool City Council v Roads and Traffic Authority (1991) 74 LGRA 265 at 278.
136. (1992) 77 LGRA 21 at 31 (emphasis added).
137. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
138. See also, Conservation Law Foundation v Department of Air Force 864 F Supp 265 at 281 (1994).
139. Cripps J, Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 at 417-418. This point was not questioned in the course of appeal (1984) 53 LGRA 160, and was followed in Farley & Lewers Qld Pty Ltd v Tweed SC [1985] ELR 0066 on that basis.
140. B J Preston, "Adequacy of Environmental Impact Statements in New South Wales" (1986) 3 EPU 194 at 203.
141. Montgomery v Ellis 364 F Supp 517 at 527-528 (1973).
142. Silva v Lynn 482 F 2d 1282 at 1285 (1973).
143. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
144. Environmental Defense Fund v Corps of Engineers 492 F 2d 1123 at 1136 (1974) adopted in Izaak Walton League of America v Marsh 655 F 2d 346 at 368-369 (1981).
145. Hughes River Watershed Conservancy v Glickman 81 F 3d 437 at 446-447 (1996).
146. Life of the Land v Brinegar 485 F 2d 460 at 468 and 473 (1973).
147. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
148. See also M J Raff, "A History of Planning Land Use Planning Legislation and Rights of Objection in Victoria" (1996)
149. Mon LR 90.