3.2 Environmental Impact Assessment in the Exploitation
Regulations
These EIS and EMMP templates do appear to plug a gap identified under the
exploration regime (above) i.e. the fact that contractors are currently required to
conduct scientific research for EIA purposes, without knowing precisely what data
the ISA requires of them.
53 There is a timing issue also. Provisions related to the
preparation of EIAs are most pertinent to the exploration phase: either because an
EIA-triggering activity (e.g. in situ technology tests/test mining) will be conducted
under exploration, or in order to prepare an exploitation application. If an EIS must
be submitted at the exploitation application stage, then it stands to reason that the
EIA must have already been conducted under the exploration contract. Yet the
relevant regulatory detail is contained in the draft Exploitation Regulations, which
are not yet in force, and which are not designed to apply to exploration contractors.
This could give rise to a situation in which a current exploration contractor compiles
15-years’ worth of historic data and research into an EIS for an exploitation
application, only to be told after the event that it had failed to collect a key data
type that is required by the new Exploitation Regulations. Further, the Exploitation
Regulations do not address specific requirements for the process of conducting an
EIA, and so this significant topic remains entirely absent from the ISA’s rules.
Other aspects of the usual 6-stage EIA process (referenced above) are missing.
In particular, the regime does not give the ISA a distinct environmental permitting
approval or disapproval function, as one might expect. An EIA is performed and
presented by the contractor to the ISA in an EIS at the point of applying for
Exploitation only. There is no capacity for a subsequent EIA to be conducted during
the currency of an Exploitation contract, to take into account a proposed change in
the plan of work or mining method, or new science and learning, for example. In
considering an application for exploitation, the ISA’s LTC is required to consider
whether the plan of work will afford ‘effective protection of the marine environment’, but there is no express provision in the Regulations to prohibit the LTC from
recommending approval of an application where there is a finding of harm to the
environment, such as where the ‘serious harm’ threshold may be breached.
55
53 BGR EIA Report supra n. 41 (addressing the draft Exploitation Regulations) “. . .for most
procedural steps more detailed requirements still need to be developed, . . . Furthermore, the
draft exploitation regulations lack [. . .] specific requirements regarding environmental data to
be provided and common standards for environmental surveys and monitoring plans.”
55 “Serious harm to the marine environment [arising out of activities in the Area]” is indicated as the
threshold for environmental impacts that should be prohibited and prevented by the ISA. See Art.
165(2)(l), UNCLOS.
18 Regulating the Common Heritage of Mankind: Challenges in Developing a Mining. . . 345
Regulations
These EIS and EMMP templates do appear to plug a gap identified under the
exploration regime (above) i.e. the fact that contractors are currently required to
conduct scientific research for EIA purposes, without knowing precisely what data
the ISA requires of them.
53 There is a timing issue also. Provisions related to the
preparation of EIAs are most pertinent to the exploration phase: either because an
EIA-triggering activity (e.g. in situ technology tests/test mining) will be conducted
under exploration, or in order to prepare an exploitation application. If an EIS must
be submitted at the exploitation application stage, then it stands to reason that the
EIA must have already been conducted under the exploration contract. Yet the
relevant regulatory detail is contained in the draft Exploitation Regulations, which
are not yet in force, and which are not designed to apply to exploration contractors.
This could give rise to a situation in which a current exploration contractor compiles
15-years’ worth of historic data and research into an EIS for an exploitation
application, only to be told after the event that it had failed to collect a key data
type that is required by the new Exploitation Regulations. Further, the Exploitation
Regulations do not address specific requirements for the process of conducting an
EIA, and so this significant topic remains entirely absent from the ISA’s rules.
Other aspects of the usual 6-stage EIA process (referenced above) are missing.
In particular, the regime does not give the ISA a distinct environmental permitting
approval or disapproval function, as one might expect. An EIA is performed and
presented by the contractor to the ISA in an EIS at the point of applying for
Exploitation only. There is no capacity for a subsequent EIA to be conducted during
the currency of an Exploitation contract, to take into account a proposed change in
the plan of work or mining method, or new science and learning, for example. In
considering an application for exploitation, the ISA’s LTC is required to consider
whether the plan of work will afford ‘effective protection of the marine environment’, but there is no express provision in the Regulations to prohibit the LTC from
recommending approval of an application where there is a finding of harm to the
environment, such as where the ‘serious harm’ threshold may be breached.
55
53 BGR EIA Report supra n. 41 (addressing the draft Exploitation Regulations) “. . .for most
procedural steps more detailed requirements still need to be developed, . . . Furthermore, the
draft exploitation regulations lack [. . .] specific requirements regarding environmental data to
be provided and common standards for environmental surveys and monitoring plans.”
55 “Serious harm to the marine environment [arising out of activities in the Area]” is indicated as the
threshold for environmental impacts that should be prohibited and prevented by the ISA. See Art.
165(2)(l), UNCLOS.
18 Regulating the Common Heritage of Mankind: Challenges in Developing a Mining. . . 345