Furthermore, two EIA Reports
39 were submitted to the ISA in 2018 pertaining to
the in-situ trial of a new nodule-collecting machine, under exploration contracts.
These EIA Reports themselves noted that they were prepared in the absence of any
ISA rules for the conduct and assessment of EIAs, and development of environmental monitoring and management plans, under exploration.
40 The contractors preparing those EIA Reports indicate they have sought to follow the Recommendations,
41
although the Recommendations are not mandatory
42 (as currently drafted, the
Recommendations are to be observed by contractors only ‘as far as reasonably
practicable’).
43 In any event, the Recommendations do not inform contractors on
key factors for the preparation of an EIA, such as: what minimum information
should be covered by an EIA report, what constitutes adequate baseline data, and
whom should the contractors consult in preparing the EIA?
It is also noteworthy that no formal process has been outlined within the ISA’s
current rules, regulations and procedures for the review and evaluation of an EIA
report, and that there is no specific mandate for the ISA to take an environmental
permitting decision. This lack of structure and process raises a host of fundamental
questions: Once an EIA report is received by ISA Secretary-General, what happens
to it? Who is reviewing EIA reports on behalf of the ISA? Whose views or expertise
will be sought in that review? Who is taking a decision on the basis of the EIA
report? What is the question they are deciding, and against what criteria? What is the
timeframe for this to happen?
39 The terminology ‘EIA Report’ is taken from the ISA (see: https://www.isa.org.jm/environmentalimpact-assessments) which is perhaps used by the ISA for the outcome documents from EIAs
conducted under exploration, rather than the more usual ‘Environmental Impact Statement’
(or EIS), perhaps to differentiate from the EIS process and requirements contained in the draft
Exploitation Regulations.
40 GSR Environmental Impact Statement April 2018, https://ran-s3.s3.amazonaws.com/isa.org.jm/
s3fs-public/documents/EN/EIA/GSR/GSR-EIS.pdf and BGR Environmental Impact Assessment
Report February 2018, https://ran-s3.s3.amazonaws.com/isa.org.jm/s3fs-public/documents/EN/
EIA/BGR/EIA_BGR.pdf both state: “There are no distinct ISA regulations and guidelines for the
development of an EIA during the exploration phase”. BGR further states “There is no obligation
for public consultation at this stage of the process (communication with the Secretary-General of
the ISA), neither are there any guidelines or templates available that go beyond [LTC Recommendations] to guide contractors in developing impact assessments during the exploration phase. This
means that specific requirements regarding the environmental data to be provided and common
standards for impact-related environmental surveys and monitoring plans are not available at this
point in time.”
41 Id. p. 21 (GSR) and p. 17 (BGR).
42 Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area and related
matters, July 2013 ISBA/19/C/17, regulation 38; and Annex IV section 13(1).
43 There has been some suggestion from the ISA Secretariat that the Recommendations are seen as
having the status of ‘regulations’; see Braeger et al. (2020, authored by ISA Secretariat staff), in
which LTC Recommendations and the CCZ REMP are described as ‘regulations’ and ‘mandatory’.
A similar interpretation may explain a recent published statement by the ISA Secretary-General that
“The International Seabed Authority environmental regulations are already extensive”, in Lodge
and Verlaan (2018).
342
H. Lily and S. E. Roady
39 were submitted to the ISA in 2018 pertaining to
the in-situ trial of a new nodule-collecting machine, under exploration contracts.
These EIA Reports themselves noted that they were prepared in the absence of any
ISA rules for the conduct and assessment of EIAs, and development of environmental monitoring and management plans, under exploration.
40 The contractors preparing those EIA Reports indicate they have sought to follow the Recommendations,
41
although the Recommendations are not mandatory
42 (as currently drafted, the
Recommendations are to be observed by contractors only ‘as far as reasonably
practicable’).
43 In any event, the Recommendations do not inform contractors on
key factors for the preparation of an EIA, such as: what minimum information
should be covered by an EIA report, what constitutes adequate baseline data, and
whom should the contractors consult in preparing the EIA?
It is also noteworthy that no formal process has been outlined within the ISA’s
current rules, regulations and procedures for the review and evaluation of an EIA
report, and that there is no specific mandate for the ISA to take an environmental
permitting decision. This lack of structure and process raises a host of fundamental
questions: Once an EIA report is received by ISA Secretary-General, what happens
to it? Who is reviewing EIA reports on behalf of the ISA? Whose views or expertise
will be sought in that review? Who is taking a decision on the basis of the EIA
report? What is the question they are deciding, and against what criteria? What is the
timeframe for this to happen?
39 The terminology ‘EIA Report’ is taken from the ISA (see: https://www.isa.org.jm/environmentalimpact-assessments) which is perhaps used by the ISA for the outcome documents from EIAs
conducted under exploration, rather than the more usual ‘Environmental Impact Statement’
(or EIS), perhaps to differentiate from the EIS process and requirements contained in the draft
Exploitation Regulations.
40 GSR Environmental Impact Statement April 2018, https://ran-s3.s3.amazonaws.com/isa.org.jm/
s3fs-public/documents/EN/EIA/GSR/GSR-EIS.pdf and BGR Environmental Impact Assessment
Report February 2018, https://ran-s3.s3.amazonaws.com/isa.org.jm/s3fs-public/documents/EN/
EIA/BGR/EIA_BGR.pdf both state: “There are no distinct ISA regulations and guidelines for the
development of an EIA during the exploration phase”. BGR further states “There is no obligation
for public consultation at this stage of the process (communication with the Secretary-General of
the ISA), neither are there any guidelines or templates available that go beyond [LTC Recommendations] to guide contractors in developing impact assessments during the exploration phase. This
means that specific requirements regarding the environmental data to be provided and common
standards for impact-related environmental surveys and monitoring plans are not available at this
point in time.”
41 Id. p. 21 (GSR) and p. 17 (BGR).
42 Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area and related
matters, July 2013 ISBA/19/C/17, regulation 38; and Annex IV section 13(1).
43 There has been some suggestion from the ISA Secretariat that the Recommendations are seen as
having the status of ‘regulations’; see Braeger et al. (2020, authored by ISA Secretariat staff), in
which LTC Recommendations and the CCZ REMP are described as ‘regulations’ and ‘mandatory’.
A similar interpretation may explain a recent published statement by the ISA Secretary-General that
“The International Seabed Authority environmental regulations are already extensive”, in Lodge
and Verlaan (2018).
342
H. Lily and S. E. Roady