Environmental Impact Assessment under the Biodiversity Beyond National Jurisdiction Agreement and the Equivalence Exception

A key consideration for the implementation of the Biodiversity Beyond National Jurisdiction (BBNJ) Agreement is managing the relationship between overlapping international frameworks and institutions. Parties to the BBNJ Agreement are required to apply and interpret the BBNJ Agreement in a manner that does not undermine other legal instrument and frameworks and that promotes coherence and coordination between the BBNJ Agreement and other legal instruments. In relation to environmental impact assessment (EIA), this requirement for coherence finds expression in article 29(4 , which provides an exception to the general obligation to conduct an EIA where the planned activity has been assessed in accordance with the requirements of another relevant legal instrument that is equivalent to the EIA provisions of the BBNJ Agreement. The equivalence exception is, however, ambiguous in the sense that equivalence is a matter of degree. Interpreting equivalence too narrowly risks redundancy and conflicting outcomes, while interpreting equivalence too broadly may render the BBNJ Agreement EIA provisions superfluous.

Understanding how EIA processes differ and determining the legal and practical implications of these differences for equivalence determinations will be an important early step in defining the role of the BBNJ Agreement’s EIA processes. This paper seeks to contribute to this understanding by conducting a comparative analysis of four EIA process that have potential to overlap with the BBNJ Agreement’s EIA process. Specifically, we examine the EIA processes under the Antarctic Environmental Protocol; the proposed EIA rules for deep seabed mining in the International Seabed Authority’s Exploitation Regulations; the environmental assessment process for marine geoengineering under the London Protocol, and fisheries assessment processes required by regional fisheries management organizations. Each process is examined with reference to the specific EIA requirements under the BBNJ Agreement to assess the degree of equivalence.  This approach allows us to develop a clearer picture of the contours of equivalence for EIA processes that apply to high seas activities and to identify areas of divergence that may require further attention by the Parties to these agreements.

We conclude the paper by commenting on the potential pathways for developing coherence and coordination of EIA processes in the high seas.