Threatened Pacific Island Nation makes legal history by challenging European carbon emitter

Press release - May 23, 2011
New York, 23 May 2011 -- The Federated States of Micronesia (FSM) has made legal history by challenging the development of one of Europe’s largest coal-fired power stations, opening the door for climate-stricken nations to use international law to take action against major carbon emitters that pose a significant risk to their survival.

The landmark legal paper, written by FSM, Greenpeace and the Environmental Law Service, and presented today at the Threatened Island Nations Climate Conference in New York’s Columbia University, offers hope to vulnerable countries on the frontline of climate impacts. FSM is one of many nation states experiencing environmental disasters, such as flooding, tidal surges and destruction of food crops, which are already exacerbated by climate change.

“The very real impacts of climate change are happening on our disappearing shores,” said Maketo Robert, Secretary of the Department of Justice and the Attorney General of the Federated States of Micronesia: “This legal tool demonstrates that nations on the frontline of climate change are now supported by, and must prepare to invoke, the international law in making meaningful and more effective inputs into energy decisions.”

“This move by Federated States of Micronesia is a first for climate litigation and the first time a vulnerable nation has established itself as a stakeholder in a dirty energy project on the other side of the planet.” said Jasper Teulings, General Counsel at Greenpeace International. “Vulnerable nations have long been the moral voice on climate change, now they have a legal one too. Governments and corporations need to accept that it is indefensible to pursue dirty energy, when a clean and secure future powered by renewable energy is achievable now.”

Jan Srytr of the Environmental Law Service said: “The idea that the responsibility of a state’s decisions extends beyond its borders is not a new concept. However, by accepting this responsibility in relation to impacts of climate change - especially in the context of a specific project– creates a new legal precedent."

The legal intervention centres around FSM’s request for a transboundary environmental impact assessment (TEIA) of a proposed expansion and life-extension of the Prunéřov II brown coal-fired power plant. Although TEIA’s are often triggered by neighbouring states based on physical pollution concerns, this was the first ever use of a ‘transregional’ impact assessment concerning climate change. FSM’s pioneering challenge provides a new legal hook for other threatened island nations to call major polluters to account.

In April 2011, the Czech Ministry of Environment issued a positive environmental impact statement that cleared the way for the construction of the Prunéřov II brown coal-fired power plant. However, FSM was recognized by the Czech Ministry as an “affected state” and required CEZ Group to provide a compensation plan that would offset the additional CO2 emissions. This was clear recognition of the objections to the project’s insufficient energy efficiency measures, raised by FSM and other participants.

ENDS

CONTACTS

Internationally: Caroline Chisholm on +31 646 16 2018

Greenpeace International Press Desk Hotline +31 (0) 20718 2470

In the Pacific: Josephine Prasad on +679 992 2098

In the Czech Republic: Lucie Jakešová on +420 603 443 140

 

Notes to editors:

About the Federated States of Micronesia (FSM): FSM is a grouping of six hundred small islands in the Western Pacific, lying just above the equator. While the country’s entire land area amounts to just over 270 square miles, it occupies more than one million square miles of the Pacific Ocean and ranges 1,700 miles from east to west.

About the Environmental Law Service (ELS): The ELS is a non governmental, non profit and non political public interest law organization working to defend the rights of citizens and the environment. For further information contact Jan Srytr or Jiri Nezhyba Tel: 00 420 775 154 073.

About Greenpeace: Greenpeace is an independent global campaigning organisation that acts to change attitudes and behaviour, to protect and conserve the environment and to promote peace. It comprises 28 independent national/regional offices in over 40 countries across Europe, the Americas, Africa, Asia and the Pacific, as well as a co-ordinating body, Greenpeace International.

 

The legal precedent Q&A:

1. What is happening in New York?

The Federated States of Micronesia, Greenpeace and Environmental Law Service will be presenting the legal theory behind the world’s first transboundary environmental impact assessment of CO2 emissions and climate change concerns between two countries located on other sides of the planet. The presentation consists of a poster at the Threatened Island Nations: Legal Implications of Rising Seas and a Changing Climate conference and submission of an article for inclusion in a peer-reviewed journal. The conference is hosted by the Columbia School of Law with the Republic of the Marshall Islands. The event will cover a wide range of issues related to legal options available to countries most vulnerable to climate change.

 

2. What is a Transboundary Environmental Impact Assessment (TEIA)?

TEIA is a consultative process to scientifically identify and mitigate environmental impacts in one country of human activities in another. Environmental Impact Assessment (EIA) is a well-established tool of environmental law that aims to ensure that adverse environmental problems are assessed before decisions on them are made. However, environmental impacts are not always confined within national borders. Sometimes, activities in one state can negatively affect and have some foreseeable impacts upon the territory of another state, as exemplified by the Trail Smelter Case and the Case Concerning Pulp Mills on the River Uruguay. In this case, a Transboundary EIA should assess the impact the project will have on affected states, so that measures designed to reduce the harmful environmental impacts of an activity can be included in the final decision.

 

3. What is the legal article all about?

The article describes the use of TEIA legislation as a legal option that empowers climate-vulnerable countries to employ a more proactive stance and diligent attitude in the consultation process. It also provides the opportunity to input on decision-making processes of dirty energy projects in industrialized countries.

 

The paper examines the evolutionary nature of TEIA law, and its present status as customary international law, as supported by the recent International Court of Justice judgment in the Case Concerning Pulp Mills on the River Uruguay. A case study of FSM’s request for a TEIA of the Prunéřov II brown coal (lignite)-fired power plant in the Czech Republic using existing principles of international law as legal bases is provided, followed by a discussion of the technical legal obstacles to conducting TEIAs based on climate change concerns. It also evaluates the practical use of TEIA by sovereign island nations as supported by international law and the opportunities for further refinement.

 

4. What interest do island nations have in in participating in TEIAs of coal projects in industrialized countries?

As sovereigns, island nations owe a legal obligation to their people to ensure the continued survival of their nation, cultures, and traditions. All of these are exposed to an unprecedented threat of vanishing. Island nations, such as FSM, are already facing environmental threats – such as submersion of islands and tidal surges – that are likely to be exacerbated by climate change. One key source of emissions fueling the climate change problem is coal. The burning of coal is the largest single source of CO2 emissions in the world. International transboundary law is a means to highlight potential climate impacts of dirty energy projects and improve related policies and decisions. Ultimately, TEIA may help these states to fulfill the obligation owed to its citizens and save these nations from disaster.

 

5. What was the reaction of the government of the Czech Republic to FSM’s TEIA participation?<

Initially, the Czech government reacted very favorably. They welcomed the TEIA request, inviting FSM to send its Viewpoint on the project, and commissioning the independent analysis that confirmed FSM’s substantive objections. The Czech Ministry awarded FSM the status of an ‘affected state’ under Czech law, raising the legitimate expectation of being formally notified by the Czech government about the final outcome of the EIA procedure, as well as being granted standing for subsequent administrative proceedings. The Ministry of the Environment’s requirement for CEZ to offset CO2 emissions was an attempt at mitigating the climate impacts of the plan, which was the reaction FSM and other participants were hoping to achieve.

 

6. How was the TEIA successful?

The TEIA allowed for an important exchange of information and input into the decision making process of the largest Czech source of CO2 in order to mitigate its emissions and enforce the use of the best available techniques (BAT). And it has been shown that a TEIA can be a very useful tool in analyzing industrial projects through climate change perspectives. Although it is clear that complete cancellation of the life-extension and phase out of Prunéřov would be the best mitigation for the climate, the securing of over 5 million tonnes of CO2 off-sets should definitely be seen as a success.

 

7. What makes the Prunéřov TEIA significant in international environmental law?

FSM’s participation in the Prunéřov EIA process was the first time a country, particularly vulnerable to climate change, has used TEIA legislation to raise concerns about a proposed industrial project’s greenhouse gas emissions’ contribution to climate change. This step creates a new precedent, extending the previous practice of TEIA in accordance with the Espoo Convention, EU EIA Directive and the Protocol on Strategic Environmental Assessment. Other countries can now build on this pioneering approach and request participation in the decision-making processes for dirty energy projects in other industrialized nations.

 

8. What are the next steps in the TEIA?

The Government of the Czech Republic has still not sent official notification of the final EIA statement to FSM. This should take the form of an English translation of the original Czech language statement that was published in April 2010. Ideally the Czech authorities should send this immediately to FSM’s Office of Environment and Emergency Management, but they have still not yet fulfilled this obligation. As the ICJ stated in its decision in the Case Concerning Pulp Mills on the River Uruguay, once operations have started and, where necessary throughout the life of the project, continuous monitoring of its effects on the environment shall be undertaken.

 

9. How can another TEIA of contributions to climate change happen?

If a project, plan, or program will result in excessive emissions of greenhouse gases, then the country overseeing the project should notify potentially affected countries. An “affected country” also has the option to request that the transboundary environmental impact assessment is undertaken. Practical application of international law will enable activities with a link to climate impacts to be subject to a TEIA. It is important to note that the best possible way to tackle the problem of climate change is the UNFCCC process. However, as negotiations on a fair ambitious and legally binding treaty continue to stall, countries most vulnerable to climate change will surely look for alternative ways to secure emissions reductions.