Abstract
Unbalanced exploitation of renewable and non-renewable resources by industrial, agricultural, and other economic sectors are depleting these resources across the world. Environmental pollution and degradation are adversely affecting socio-economic conditions. Thus, an urgent and ambitious action is required to rehabilitate nature by striking a balance between environmental quality and human uses of natural resources. To relieve the unsustainable practices, decoupling nature from growing demands for economic exploitation has been proposed. However, a feasible procedure is required to decouple unsustainable economic practices from the environment. This article illustrates the complexity of applying decoupling in the context of discharging hazardous chemicals in transboundary water resources, and more specifically in the Great Lakes, between Canada and the United States. Furthermore, the article argues that “environmental impact assessment” should be reinforced in regulatory measures to apply the decoupling idea practically.
Keywords
Worldwide trends in environmental degradation are harming socio-economic conditions. Industrial, agricultural and other economic sectors pollute nature, exploit living, renewable resources beyond their capacity for sustaining their yield and deplete non-renewable resources. To restore a balance between environmental quality and human uses of nature and natural resources, it is necessary to decouple nature from today’s increasing demands for economic exploitation of nature. But a practical way to decouple unsustainable economic demand from nature itself is needed. Nations have already adopted a procedure that would implement decoupling. This essay examines the complexity of implementing decoupling in the Great Lakes, between Canada and the US, and proposes strengthening environmental impact assessment (EIA) procedures to implement decoupling more smoothly.
Considering the call on urgent and ambitious actions for nature, this analysis takes our whole planet as an interrelated system and evaluates the effectiveness of regulatory approaches based on decreasing the environmental harms to its ecosystems. This case study examines the concept and policy of decoupling in the context of discharging hazardous chemicals into transboundary water resources, and illustrates the complexity of applying decoupling in the Great Lakes Water Quality Agreements (GLWQA). However, the discussions can be applicable to other shared natural resources to some extent. The conclusion provides some recommendations on how to practically apply the decoupling idea in EIA regulations.
Moving Down the Path of Destruction
The most comprehensive report on the global environment since 2012 – UNEP’s Global Environmental Outlook 6 (GEO-6) 1 – has just been published and it shows the environmental situation is deteriorating and we are not on track to achieve our agreed environmental goals, such as the Sustainable Development Goals (SDGs) by 2030, nor to reach desired long-term sustainability by 2050. 2 , 3 Natural resources are often over-exploited, poorly managed and polluted, and unsustainable production and consumption patterns and trends, coupled with population growth, have increased resource use and exposed human lives to severe health threats. Our planet is deteriorating and “increasingly serious consequences” are arising. GEO-6 found current actions too slow – or sometimes in the wrong direction – to achieve our common environmental targets. It warns that “the window for action is closing” and calls for urgent and strengthened international cooperation to reverse negative trends and restore the planet’s and human health, as continuing failure is leading to on-going and further potentially irreversible adverse impacts. 4
Scholars and scientists emphasise the urgent need to use all our resources and power to halt the current, progressively worsening trends and restore the deteriorating environment. In the few opportunities still remaining, policy-makers are unwilling to take fundamental steps and to make ambitious decisions, instead minimising the required actions as much as possible. Among the progressive proposals for the conservation and revitalisation of natural resources is “decoupling” economic growth from environmental degradation, discussed in detail in a report prepared in 2011 by the International Resource Panel Working Group on Decoupling (the IRP Decoupling Report). 5 Currently, economic growth has a significant impact on the quality and quantity of natural resources, to an extent which is considered unsustainable, especially taking into account population growth and climate change. In the “decoupling” scenario, the interlinkage between economic growth and extracting natural resources would be limited and fewer resources would be used per unit of economic output, leading to a more sustainable economy.
However, simply decoupling economic growth from environmental degradation in one region or sector will not necessarily increase the protection of nature, in the broadest sense. A country or region may decouple its economic development from extracting natural resources in that particular area, but if the economy itself relies on some type of environmental extraction, natural degradation could be transmitted to another less developed location, where probably unsustainable economic growth is pursued. As mentioned in GEO-6, even though moves to implement the circular economy can help preserve raw materials and decouple economic growth from resource use and associated environmental externalities, 6 “in some cases the appearance of growth decoupling in one sector or territory can mask a continued environmental and social impact somewhere else ... and [shift] the cost somewhere else”, like in the case of importing resource-intensive consumer goods from developing countries. 7 This trading is a very critical element in analysing decoupling, as the destruction of nature may shift to areas and countries where environmental liability is poorly developed 8 and where its costs are often being borne by the poorest and most vulnerable in society, including indigenous and local communities, particularly in developing countries. 9 Thereby, absolute or relative decoupling could conserve the natural resources in a territory, but it may not reduce the overall environmental degradation on the planet.
Furthermore, concerning conservation and protection of shared natural resources between jurisdictions, implementation of decoupling would be even more complex. As the number of stakeholders and sources of destruction increases, each tries to adhere to the applicable domestic policies and rules. Due to the costs involved in that adherence they are resistant to responsibilities on a broader scale. Regulators may resist the need to expand their view as broadly as might be necessary to decouple the entire affected area. Still however, it is necessary to adopt a more practical, fact-based approach, with a focus on segregating the planet’s environment and economic growth, especially in the more complex platforms.
Decoupling as a Prerequisite for Sustainable Development
When it was issued in 1987, the Brundtland Commission’s Report first postulated the purpose of sustainable development in the environmental context as follows: “to ensure that [humanity] meets the needs of the present without compromising the ability of future generations to meet their own needs”. 10 While the consumption of natural resources is still rising rapidly, with the growth of the world’s population, the rising level of consumption is projected to triple resource use by 2050. Material resource extraction and modification to create economic value are still seen as “reliable companion[s] of economic prosperity”. In some developed countries, the resource consumption ratio to the economic growth (GDP) has stabilised or even shown a modest decline; however, the resource consumption rate is still on the rise or the resource intensity is exported somewhere else. 11 In developing countries, even though the level of resource used by each person is still well below that in the developed nations, the ratio of GDP to resource extraction is now higher. 12
Energy, materials, water and land are natural assets extracted deliberately and their quantity or quality deteriorate to grow the economy. Among them, water is a prerequisite for the health and wellbeing of humans, and the conservation of nature and ecosystem services. At present, however, the function of water bodies as sinks and sources is severely constrained. Unlike energy, water is not subject to price volatility and its extraction and modification are not expensive. 13 Although climate change has already impacted the hydrological cycle, water withdrawal and pollution by human activities are still the largest factors in reducing water resources. Agricultural activities contribute the largest quantity of water pollution in many places, followed by untreated industrial waste dumped into waters, mining activities, energy production, landfills, and urban wastewater effluents. 14 According to the UNEP report, with the current trends in water management, half of the world’s population will face severe water stress by 2030. 15
In 2015, the UN General Assembly adopted the following as its sixth SDG: “Ensure availability and sustainable management of water and sanitation for all”. 16 Reliable access to clean water for a range of purposes (e.g., as a source of energy, for agriculture, as a component of some industrial processes, and as a basis for transportation systems) is essential in sustainable development. A large amount of income is spent on access to water, and in water-stress situations people should spend more to get or transfer the water. 17 Accordingly, significant constraints on the availability of fresh water beside increasing pollution loads are becoming a limiting factor to development in many regions. 18
Increase in demand, as a result of the world’s population growth, will lead to extra pressure on natural resources, which are already under stress, both in terms of quantity and quality. Considering the limitation of natural resources and the interrelationship between ecosystems, some experts suggest that the only possible scenario to meet the needs of the world’s growing population, eradicate poverty and pursue economic development without threatening future life on earth, would be to substantially reduce the dependency on natural resources associated with economic activities. This scenario is referred to as “decoupling”. 19
In this sense, “decoupling” means “using less resource per unit of economic output and reducing the environmental impact of any resources that are used or economic activities that are undertaken”. 20 At the World Summit on Sustainable Development in 2002, States agreed that “the interdependent and mutually reinforcing pillars of sustainable development” are “economic development, social development, and environmental protection”. 21 Based on this three-dimensional concept of sustainability, the decoupling idea would support the Green Economy, in which human welfare is enhanced while sustaining environmental resources. 22
Decoupling can be applied by all governments, private and civil society sectors and toward different resources such as water, land, soil and metals. It can increase resource productivity 23 to reduce the rate of use of primary resource per unit of economic activity or it can increase eco-efficiency in increasing economic output to mitigate negative environmental impacts. 24 The IRP Decoupling Report distinguishes between relative and absolute decoupling. 25 Although relative decoupling (reduction in per-unit resource impact) is easier to achieve and fairly common, absolute decoupling (reduction in the total amount of resource used) is clearly more effective in conserving natural resources. As the report notes, “Absolute reductions in resource use are rare; they can occur only when the growth rate of resource productivity exceeds the growth rate of the economy”. As UNEP noted in its summary of the Working Group’s four country studies (China, South Africa, Germany and Japan), “developing countries pursue no strategies of absolute decoupling and ... industrialized countries may have policies but very modest success in absolute decoupling”. 26
SDG 6 states that improving water quality by 2030 is achievable through “reducing pollution, eliminating dumping and minimizing the release of hazardous chemicals and materials, halving the proportion of untreated wastewater and substantially increasing recycling and safe reuse”. 27 Globally, the rate of water resource use increase is lower than that of economic growth. This example of relative decoupling was more significant in the 1990s, when the global economy expanded thirty-fold while global water consumption only increased six-fold, mostly in developed countries. 28 In developing countries such as China and Singapore, relative decoupling also happened through reducing demand and improving efficiency programmes. 29 Companies could also reduce water pollution significantly by enhancing water efficiency in production processes, mostly as an adaptation measure to the probable upcoming shortage of resources. 30
However, UNEP’s published summary and analysis of the IRP Decoupling Report (the UNEP Decoupling Report) notes that the UN Food and Agriculture Organization projects that global food production will increase by 40 percent by 2050. It also notes that irrigated agriculture currently provides 40 percent of the world’s food. 31 Non-renewable groundwater resources are still being extracted in many parts as primary sources and, in developed countries, up to 59 percent of the water used by industry is extracted fresh water. 32 Water quality challenges would also impact the physical scarcity of water resources and would exacerbate water stress in many river basins. 33 If the current system of water development and management continues, there will be a 40 percent gap between water supply and demand. 34 The depletion of non-renewable water resources and changes to water ecosystems, and their effect on human welfare and health, and on economic systems makes it imperative to decouple water from economic activities, beyond “business as usual” as the current trend. Improving efficiency in water harvesting, more effective water storage, more comprehensive and fairer approaches to water sharing, greatly enhanced water recycling and reducing demand are all measures suggested in the two Decoupling Reports. 35
Case Study: The Great Lakes Water Quality Agreements
The Great Lakes, consisting of five connected lakes, form the largest fresh surface-water ecosystem on earth. They are shared between the US and Canada. They are the source of drinking water for more than 48 million people, and of irrigation in nearly 25 percent of Canadian agricultural production and 7 percent of US farm production. 36 They have a significant direct impact on the regional economy, generate more than US$ 52 billion annually, and form a habitat for more than 3,500 plant and animal species. 37
However, with massive population growth in the Great Lakes basin, expanding human settlements, urbanisation and industrialisation have exposed the environment of the lakes to multiple threats, from disappearing native species to invasive species, from shoreline development and cargo ship channels to water withdrawal. But the biggest challenge is water pollution. 38 The pollution comes from air pollution deposition, dumped liquid waste, pesticide use, manure management practices on agricultural lands and solid waste disposed of in landfills which leaches into the lakes, carried by rainfall and snowmelt, or directly by soil erosion. 39 In some areas, pollution hotspots have been created, major aquatic habitats and wetlands lost and high levels of persistent toxic substances detected, causing concern. 40
As a response to rising public and scientific concern about the pollution problem of the Great Lakes basin, using the advisory capacity of the International Joint Commission (IJC) 41 established in the Boundary Waters Treaty (1909), 42 the two countries entered into the first international water quality agreement 43 in 1972 “to prohibit discharge of toxic substances in toxic amounts and eliminate the discharge of persistent toxic substances, to provide financial aid to waste treatment works and to develop and implement practices that control all sources of pollution”. This treaty initially focused on “pollution control” 44 to improve water quality, measuring phosphorus levels as a primary metric. In 1978, the Parties adopted the 1978 Protocol to cover the entire Great Lakes ecosystem, aimed at the “virtual elimination” of toxic pollutants and addressing other environmental problems beyond phosphorus levels. 45 The agreement was modified again by the 1987 Protocol which introduced new programmes to restore and protect the waters of the Great Lakes. Also, the power and responsibilities shifted from the IJC to the governments to make them more accountable and engaged in the processes. 46 In an additional annex to the 1987 revision, the Parties recognised “the need for strengthened efforts to address the continuing contamination of the Great Lakes Basin Ecosystem, particularly by persistent toxic substances”. 47
Together, the agreement and its various subsidiary instruments and plan have come to be known as the “Great Lakes Water Quality Agreements”. They provide a framework for identifying binational priorities and implementing actions to improve water quality. As they have evolved over time, the GLWQA indicate the Parties’ interest in applying an “ecosystem approach to pollution”, 48 recognising that the restoration and enhancement of the waters are linked directly to “the restoration and enhancement of those parts of the Great Lakes basin ecosystem with which the waters interact”. 49 The Parties laid out general and specific objectives jointly, based on available information on cause-and-effect relationships between pollutants and receptor points that are considered to protect most sensitive uses in all waters and are required to use their “best efforts” to implement them. They are also required to aim to achieve target levels annexed to the agreement.
The 1987 Protocol sets out procedures to identify and improve waters with advanced contamination and identified 43 of the most polluted areas as Areas of Concern (AOCs), based on the “Beneficial Use Impairment” 50 of those locations. To restore each of these areas, the two federal governments (including their related state and local governments) jointly developed Remedial Action Plans. Each of these plans outlines the relevant impairment and its causes; the actions needed for restoration; the agencies and organisations responsible; the timeline to complete them; the criteria to measure all restoration; and the requirements enabling areas to be taken off the list. Parties also agreed to implement Lakewide Management Plans to restore and protect open lake waters. 51 IJC retained its responsibility to collect, analyse and disseminate information and data, give recommendations and investigate issues on the Great Lakes and their pollution levels, 52 and therefore it could have a role in identifying AOCs and designing the specific remedial action plans as well as the broader Lakeside Management Plans.
The GLWQA was successful in decreasing water pollution, especially in areas with fewer interdependencies, more stakeholder involvement, or for RAPs formed with more consensus. However, in more complex restoration plans, when several jurisdictions or ecosystems were engaged, the performance was weaker. 53 The standards and objectives were not clear enough to create accountability and not assigning definite roles for related governments made it easy for them to avoid including the restoration costs in their budgets. 54 In implementing the commitments in the agreement, no jurisdictions had the enforcement power. The IJC had only an analytical and advisory role and no adjudicative or enforcement power. For its effectiveness in pollution control, it largely relied on the appropriation of funds, legislative enactment, and cooperation between states and provincial governments. In the US, the GLWQA was considered an executive agreement. The US Environmental Protection Agency successfully argued that it should be integrated into domestic law to gain enforcement power. 55
In addition, the disparity in the two Parties’ approaches presented significant challenges for the effectiveness of the GLWQA. US environmental policies are more consistently dominated by federal legislation, built upon the judicial interpretation of the US Constitution (specifically, the Commerce Clause). 56 With regard to geographically focused efforts, those policies more often focus on the preservation of biodiversity and restoration of habitats. 57 With the US Environmental Protection Agency in charge of implementing the GLWQA, however, it was required to refocus – to establish water quality guidance, designate limits on pollutants in the waters of the lakes and set minimum water quality standards, anti-degradation policies and implementation procedures. At the state level, legislatures and agencies are required to adopt the same standards, policies and procedures for the Great Lakes water and to implement them in a manner consistent with that guidance. 58
In Canada, on the other hand, restoration programmes are subject to more discretion on the part of institutions and agencies, and apply on a discharge-based or site-based basis. Canadian restoration plans rely on provincial regulations and management resources as well as on federal regulations. 59 The focus of their environmental protection plans is on the elimination of pollution. The federal government’s compliance is reflected in the framework of the Canadian Federal Great Lakes Program, through the Great Lakes Action Plan for providing financial support for the restoration. With regard to the restoration of degraded areas, habitat protection, and prevention and control of pollution in the Great Lakes, the federal and provincial government of Ontario work together through a non-binding instrument known as the Canada-Ontario Agreement Respecting the Great Lakes Basin Ecosystem (1971). 60
Revisions to Enhance Water Quality Restoration
In 2012, the Parties again revised the GLWQA, adopting a new Protocol designed to “address new and continuing threats to the quality of the waters of the Great Lakes”. 61 The Parties agreed to action-oriented measures that should be based on the best available science, to address old threats such as pollution and to respond to emerging ones like climate change and invasive species, and to consider issues of sustainability. The revisions were recommended by the IJC, in order to make the agreement more accountable and enforceable by focusing on end results, to update the goals, to endow the IJC with more powers 62 and to increase public participation. 63 Non-governmental organisations also indicated their support for precautionary and prevention principles such as green engineering, 64 in the promotion of binational programmes. 65 The 2012 revision was one step towards a renewal of commitment by the Parties to their original promise and obligations to improve the water quality of the Great Lakes. An important objective of this revision is delisting AOCs. 66
In its 15th Biennial Report, the IJC recommended extending ecosystem management to include near shore areas, as well as the deep waters of the central lakes. 67 They found that “the dynamic nature of the near shore zone increases the uncertainty of achieving optimal results from applied management actions”. Accordingly, in the Protocol, the ecosystem concept has been widened to “integrate the interacting components of air, land, water and living organisms, including humans”. Instead of addressing individual threats in isolation, the Parties agreed on an ecosystem approach to the management of water quality that “addresses individually and cumulatively all sources of stress to the Great Lakes Basin Ecosystem”. 68
Another major shift agreed under the 2012 Protocol related to the way the GLWQA addresses pollutants. Instead of specifying long lists of hazardous and potentially hazardous polluting substances, Parties decided to focus their coordinated restoration action on a more open-ended process of pollutant risk analysis by which they would designate “Chemicals of Mutual Concern” (CMCs). To minimise risks and the environmental impacts of those chemicals and products containing them, the Parties recognised the importance of life-cycle management, 69 under which the Parties will develop and implement binational strategies according to principles set out in the agreement. 70 The IJC suggested that strategies must be developed, aimed at maximum protection of the lakes from persistent toxic CMCs. 71
Under the revision, the Parties progressed to accelerating the clean-up of contaminated AOCs. They were able to set new targets for the amount of phosphorus entering Lake Erie and also to establish the working group and processes needed to implement the agreement. 72 The revision was a step forward, especially by incorporating precautionary 73 and prevention principles, 74 even though it did not explicitly reference green chemistry in the revision. The development of procedures and processes to nominate and scientifically review CMCs was also valuable. 75
But, enforcement of the revision still relies on domestic determinations and the IJC remains an advisory authority, submitting triennial reports to the federal, state and provincial governments on the progress and effectiveness of the objectives and programmes. 76 Many AOCs have both federal and state coordinators, and therefore accountability remains a challenge. In addition, implementation of the agreement still relies largely upon domestic environmental legislation as does funding the programmes for pollution control, which can become problematic as Great Lakes pollution comes to be more serious. In the US, the restoration efforts primarily rely on federal programmes like the Clean Water Act which is based on the polluter-pays principle, does not address all relevant sources of pollution, does not mandate the elimination of toxic substance discharges into the Great Lakes system, and, in short, does not create comprehensively integrated controls. This approach is not in line with the GLWQA which takes a “reduction-elimination” approach to achieve zero discharge of persistent toxic substances. 77
The progress of Parties in addressing toxic chemical releases under the revision has been disappointingly slow. The status of overall toxic chemicals and the atmospheric deposition of toxic chemicals and toxic chemicals in sediment was fair and improving slowly in the first three years of the agreement implementation. 78 Although levels of legacy toxic chemicals have declined, several new toxic chemicals challenges are emerging, primarily involving chemicals whose use substitutes for former uses of listed or phased-out chemicals. 79
As noted above, as required by the revision, the governments developed a binational process for the designation of CMCs and identified eight chemicals in May 2016. Since then, however, no other chemical has been added to this list and no binational management strategies for the newly listed chemicals have been completed. 80 This means that there are no new binational programmes, and each country continues its individual efforts. For the future, the IJC has recommended that governments accelerate work on binational strategies based on the valuable principle of zero discharge and virtual elimination. 81
Overall, the success of the Great Lakes agreements is open to question. Since 1987, Parties have identified 43 AOCs: 26 in the US, 12 in Canada and five binational. To date, only seven of these have recovered their non-concern status and been delisted: four in the US and three in Canada. No shared AOC has been recovered. 82
Decoupling Outcomes
It is clear from the text of the GLWQA instruments that their core objective has always been eliminating pollution to enhance the water quality of the lakes and restore the ecosystem, rather than decoupling the economy from the activities threatening the sustainability of the Great Lakes basin ecosystem in a broader context. This is understandable, since the concept of decoupling has arisen so recently. However, it is certainly possible to analyse the GLWQA framework and its implementation from the decoupling perspective.
The Parties’ objective has been very broad: to free the waters of the Great Lakes from pollutants in quantities or concentrations that either directly by direct exposure or indirectly through the food chain can threaten human health, wildlife or aquatic organisms. 83 This objective seems to be achievable only through a progressive and ambitious approach while addressing all relevant factors that somehow influence the pollution in the lakes. In that context, its decoupling impacts can be analysed in three stages.
First, it seems that the GLWQA could decouple the water quality of the lakes from the economy, based on the evidence showing that the level of PCBs and dioxins as legacy toxic chemicals, as well as mercury, have generally declined since it was initially agreed. However, these chemicals have been replaced by others and the Parties have generally failed in their goal of reducing sources of toxic chemicals enabling them to delist the AOCs.
Second, then, we should consider whether the framework of the GLWQA has the potential for decoupling at all. To effectively address the possible source of chemicals entering the lakes, the 1978 agreement declared that the restoration and enhancement of boundary waters are not achievable “independently of the restoration and enhancement of those parts of the Great Lakes basin ecosystem with which the water interacts”. 84 The Parties acknowledged that pollutants may enter the water from “air, surface water, groundwater, sediment, runoff from non-point sources, [and] direct discharges”. 85 At the outset, it seems difficult to define the term of “ecosystem” broadly enough to encompass all the interacting components, physical and biological, with some degree of internal linkage and an implied boundary. However, improving and sustaining the water quality of the Great Lakes is directly related to such conceptual development and to the linkage within the ecosystem, as viewed inside and outside of the basin. Arguments continue about the scope of the Great Lakes ecosystem, 86 as chemicals from sources outside of the basin have contributed to the pollution of the lakes. 87 Although the Parties have tried to consider all of the interacting elements in the Great Lakes as an ecosystem, the sources of some chemicals still fall beyond this scope, making it impossible for the GLWQA to address them effectively.
The GLWQA recognises the transboundary nature of the problem, but does not interfere with the sovereignty and supremacy of governments to manage their own affairs. It imposes collective, but locally defined standards and does not specify mandatory measures of implementation. Given the different implementation methods and the fact that some contamination originates outside AOCs, it is possible that joint regulation of water quality by both countries outside of Remedial Action Plans in the agreement’s framework could have a better ultimate effect. Even with full implementation and the GLWQA’s incorporation of a zero-discharge principle, the current framework would not decouple the environment of some areas from the increasing levels of designated chemicals – particularly because many of them bioaccumulate in species grown or caught in those areas and break down slowly in the environment. Chemicals released or discharged far away often have a chance of entering the water of the Great Lakes. Hence, achieving zero discharge may be impossible.
Third, a true decoupling plan would not only detach the Great Lakes from the release of chemicals but in a broader sense would generally reduce the release of chemicals into nature. The GLWQA does not deal with removing chemicals from the economy and efforts in restored areas have not necessarily resulted in decoupling the economy in general from using harmful chemicals. So long as the economy still relies on those chemicals, their use (or the use of pollution-causing substitutes) would not decrease. We cannot, therefore, claim that the economy is decoupled from the use or discharge of harmful chemicals. They just move from one more restricted place to another or enter nature in other forms.
Initially, the approach of Parties was to control the discharge from individual pollutant sources – specific “point sources” or more diffuse “non-point sources” – into the Great Lakes. Subsequent protocols to the GLWQA replaced this approach with an alternative perspective, which seeks to address all stressors within a hydrologically-defined drainage basin. Now is the time to go one step further – to eliminate pollution throughout the whole ecosystem, and to designate larger AOCs with wider restoration plans. Chemicals originating from various sources in each country can move across the boundary and degrade the quality of the water in the other country, causing mutual transboundary pollution. Chemicals may be decoupled from a single AOC, but they may enter other parts of the lakes’ ecosystem. Even if all pollution of the Great Lakes as a whole is curtailed, decoupling won’t happen as long as we fail to address the economy as the source of pollution. The activities emitting/discharging harmful chemicals can simply move somewhere else and affect those locations. Only by considering the ecosystem on a planetary scale and incorporating the zero-discharge and pollution-prevention approach on that scale 88 could GLWQA implementation efforts truly attempt to decouple the economy from the pollution of the Great Lakes and the planet’s environment.
In addition to the GLWQA, there is another legal instrument of relevance – a binding agreement between the Great Lakes states in the US known as the Great Lakes Compact. 89 This instrument focuses on the volume of water of the lakes and is accompanied by a non-binding Agreement tying the Canadian provinces of Ontario and Quebec into its decision-making processes. 90 These agreements are designed to prevent any human removal of any tributary surface and ground waters from the Great Lakes. 91
The Compact contains more specific and much clearer standards and enforcement mechanisms. In prohibiting the diversion of Great Lakes waters to areas outside of the basin, 92 it imposed precise restrictions on intra-basin withdrawals. 93 It applies “decision-making standards” for water use and withdrawals, to be administered primarily by states and provinces, and creates a governance balance between state sovereignty and regional management. 94 Additionally, the Compact Council, 95 as the executive agency of the agreement, can bring court actions to enforce the Compact’s provisions. Any aggrieved person can bring a civil enforcement action against a user withdrawing without a permit or making prohibited withdrawals in the relevant court. 96 State actions can be challenged by any person, including other states or provinces, pursuant to state administrative law. 97
The Compact appears to have decoupled economic demand for water from the waters of all the Great Lakes. Among other measures, it requires periodic reports on environmental conditions in all the Great Lakes at all scales – including each lake, the watershed and the entire basin – to be used, inter alia, in the review of its decision-making standards and their application. 98 The Compact appears to have sustained the volume of water in the lakes, therefore it promises to be more effective in terms of decoupling than the GLWQA, as the latter only partially and gradually decouples pollution from the Great Lakes tributaries and shores.
EIA as a Platform for Decoupling
Current environmental policies and regulations are essential but not sufficient to decouple the global economy from the unsustainable extraction or despoliation of natural resources and to overcome challenges in the way of sustainable development. Partial decoupling can be observed for some impacts and resources in some areas of the world but there is still a need to scale up existing sustainable practices as well as more fundamental transitions in production, consumption, and disposal of goods and materials across the globe. 99
According to the GEO-6 report, solutions with a more holistic approach are necessary to address systemic ecological problems of this kind. 100 It mentions the need for “urgent cross-sectoral policy action, through a whole-of-society approach” to address environmental challenges at the national level. 101 The same type of transformative change is necessary in the international environmental context, to consider a cross-sectoral and broader concept of ecosystems in long-term analyses and be able to change the current downward trend in extracting natural resources throughout the world and follow a sustainable form of economy, separate from environmental destruction.
Decoupling, even though it cannot serve alone as a full solution to the complex environmental challenges, would make a positive contribution in the analysis of every policy and regulation. The transition to this approach would encourage reliance on long-term, comprehensive, science-based targets as the objective bases for future directions and actions promoting decoupling. Successful examples of environmental improvements are found where problems have been well identified and managed, and where regulatory and technological solutions have been readily available. 102
EIA, “an analytical process or procedure that systematically examines the possible environmental consequences of a given activity or project ... to ensure that the environmental implications are taken into account before the decisions are made” 103 is one regulatory system that could incorporate a decoupling objective. In fact, it can serve as an anchor, from which to pursue decoupling of environmental degradation and resource use from economic growth and its associated environmental externalities. Originally designed in the National Environmental Policy Act (NEPA) in the US, the EIA process requires federal agencies to prepare an EIA (although NEPA calls it an “Environmental Impact Statement” or EIS) whenever it appears that a proposed major federal action will significantly affect environmental quality. 104 The process uses information exchange and public participation to impose a standard of environmental accountability on agencies that are not otherwise directly held accountable. Its information disclosure requirement forces decision-makers to identify and confront the environmental impacts of their actions and to expose their decisions to a theretofore unprecedented level of public scrutiny. 105
The concept of EIA spread relatively quickly into the laws of the US states 106 and those of over a hundred other countries. 107 The underlying principle remains the same: that before taking an action with environmental consequences, the proponent and decision-makers must assess associated impacts and discuss them with the affected public. Many of these laws offer improvements over the original model incorporated in NEPA. Many require EIA for all projects (not limited to those requiring a federal permit); 108 make local governments also responsible; 109 and/or extend the EIA mandate to more impacts. 110 These reforms exhibit EIA as an evolving regulatory approach.
The EIA model is essentially procedural. EIA does not determine the decision-makers’ choice or require specific substantive measures to prevent environmental harms. Some scholars have criticised the use of procedural standards without some connection to the prevention of environmental harm as substantive requirements. 111 As a result, some EIA models now specify outcomes and mandate “mitigation of environmental impacts”. 112
This evolution can be a proper setting for incorporating decoupling into decision-making. Now that we are well-informed about how the current economic trends are leading us to an adverse environmental future, it is time to insert decoupling at the core of assessments. In each and every EIA, decoupling effects should be identified, studied, evaluated, analysed and provided to the public. EIA should be trying to break down the link between economic growth and environmental degradation as much as possible. This approach to resolving the environmental problems, following the idea of decoupling, rather than simply describing the issue or shifting the problem to another place or sector, would give a practical form to the concept of decoupling.
In integrating the concept of decoupling as a substantive mandate, EIA laws should also expand their scope – to consider, for example, environmental impacts outside of the borders of the jurisdiction in which the EIA is being undertaken. The legal duty to perform EIA arises from domestic laws; however, it can take one step forward by following a long-standing global trend of requiring decision-makers to consider and address transboundary environmental harms. This expansive rule for EIA should be codified in domestic law and better clarified under international law. This approach is found in the US in the form of a guidance issued by the Council on Environmental Quality, which has an advisory role under NEPA. 113 This document “requires agencies to include analyses of reasonably foreseeable transboundary effects” of projects analysed in EIAs. This guidance recognises as a policy matter that NEPA should apply the process to projects within the US that have externalised impacts on other countries. 114 Numerous federal courts’ interpretations have ruled that NEPA applies to actions within the jurisdiction of the agency involved, requiring them to take environmental impacts beyond those boundaries and beyond national boundaries into account. 115
In the international law context, the concept of Transboundary Environmental Impact Assessment (TEIA) is rooted in Principle 21 of the 1972 Stockholm Declaration, 116 and repeated in the Rio Declaration of 1992. 117 There are also regional agreements 118 that require Parties to take into account the extra-territorial effects of certain projects, and instruct them to allow affected States and individuals to participate in EIA procedures, regardless of national origin or residence. These models, however, do not prohibit significant transboundary environmental harms, requiring only that they be considered in the decisions relating to the project. 119 Financial institutions, including the World Bank, also often insist on EIA for the projects they want to finance. 120 However, there is at present no global treaty mandating TEIA, and the enforceability of TEIA has been under debate. 121
Conclusion
In order for the policy of decoupling to have effective consequences on detaching the global economy from environmental extraction, it would be useful to incorporate it into the EIA process. In turn, the scope of EIA requirements should be expanded to cover every decision that might have some environmental effects. EIA should also move from merely procedural models to more substantive mandates, which can have more direct, faster and greater results on decoupling. EIA, as a domestic popular regulatory approach, should consider transboundary environmental harms and effects on communities outside of jurisdictional borders, by which decoupling can have a base to reform the global economy.
Footnotes
UNEP. 2019. Global Environment Outlook – GEO-6: Healthy Planet, Healthy People. Cambridge: Cambridge University Press.
UNEP. 2019. Global Environment Outlook – GEO-6: Summary for Policymakers. Cambridge: Cambridge University Press.
Ibid., § 4.1.
Ibid.
Decoupling simply means reducing the amount of resources such as water, soil or fossil fuels used to produce economic growth and delinking economic development from environmental deterioration. See Fischer-Kowalski, M., Swilling, M. et al. 2011. Decoupling Natural Resource Use and Environmental Impacts from Economic Growth, at xi. International Resource Panel.
The circular economy is an approach to achieve sustainable development through reducing, reusing, remanufacturing and refurbishing products. It is an industrial system that “replaces the ‘end-of-life’ concept with restoration, shifts towards the use of renewable energy, eliminates the use of toxic chemicals, which impair reuse, and aims for the elimination of waste through the superior design of materials, products, systems, and, within this, business models”. Ellen MacArthur Foundation. 2013. Towards the Circular Economy Vol.1: Economic and business rationale for an accelerated transition, at 7.
Supra, note 1, § 11.3.2; policy innovation increasingly happening in developing countries, including market-based and regulatory approaches that provide environmental improvements while also providing access to natural resources and income for the poor, such as the provision of free water in South Africa and sustainable fisheries policies in Chile. Supra, note 2, § 3.
UN Environment Assembly of UNEP, “GEO-6 Key Messages (Developed by the Bureau members of the Summary for Policymakers meeting)”. UN Doc. UNEP/EA.4/INF.18, 12 February 2019.
Report of the World Commission on Environment and Development, “Development and International Economic Co-operation: Environment”, at 27. UN Doc. A/42/427, 4 August 1987; see also Blowfield, M. 2013. Business and Sustainability, at 5. Oxford: Oxford University Press.
E.g., Germany and Japan. Supra, note 5, at ix.
E.g., India and South Africa. Ibid.
Ibid., at xiv.
World Water Assessment Programme. 2009. The United Nations World Water Development Report 3: Water in a Changing World. Paris and London: UNESCO and Earthscan.
Supra, note 5, § 3.3.1, at 25.
UNGA. 25 September 2015. Resolution 70/1. “Transforming our World: the 2030 Agenda for Sustainable Development”. UN Doc. A/Res/70/1.
UNEP. 2015. Options for Decoupling Economic Growth from Water Use and Water Pollution. Report of the International Resource Panel Working Group on Sustainable Water Management, § 3.3.1.
Ibid.
Decoupling has been discussed earlier by WBCSD through the term “eco-efficiency” by “competitively priced goods and services to satisfy human needs and increasing quality of life while progressively reducing environmental impacts of goods and resource intensity in the entire life-cycle”. OECD then put the idea of “breaking the link between environmental bads and economic goods” as one of the objectives in its paper “Environmental strategy for the first decade of the 21st century”. The EU referred to reducing the negative environmental impacts while ensuring economic growth, and the United Nations Economic Commission for Latin America and the Caribbean recommended “non-material economic growth” to achieve sustainable development in developing economies. Supra, note 5, § 1.2.
Ibid., at xiii (Executive Summary).
World Summit on Sustainable Development, Johannesburg Declaration on Sustainable Development, para. 5, UN Doc. A/conf.199/20, 4 September 2002.
Supra, note 5, at xix.
According to the IRP Decoupling Report, resource decoupling means “reducing the rate of use of [primary] resources per unit of economic activity”. It is based on “using less material, energy, water and land resources for the same economic output”. Ibid., § 1.2.1.
The IRP Decoupling Report defined “impact decoupling” as “increasing economic output while reducing negative environmental impacts” which “arise from the extraction of required resources [such as groundwater pollution due to mining or agriculture], production [such as land degradation, wastes and emissions], the use phase of commodities [for example transport resulting in CO2 emissions], and in the post-consumption phase [again wastes and emissions]”. Impact decoupling may not necessarily mitigate impacts on resource scarcity. Sometimes it would not reduce the production costs, but even increase them. Ibid.
“Relative decoupling of resources or impacts means that the growth rate of the environmentally relevant parameter (resources used or some measure of environmental impact) is lower than the growth rate of a relevant economic indicator (for example GDP). The association is still positive ... . With absolute decoupling, in contrast, resource use declines, irrespective of the growth rate of the economic driver”. Ibid., at 5.
Ibid., at 152.
Supra, note 16, at 18, para. 6.3.
Supra, note 17, § 2.1.
UNEP. 2016. Options for Decoupling Economic Growth from Water Use and Water Pollution: Summary for Policy Makers, at 10. International Resource Panel Working Group on Sustainable Water Management.
Supra, note 5, at xvii.
Supra, note 17, § 3.2.2.
Ibid., § 3.2.3.
Ibid., § 3.3.2.
Ibid., § 2.2.
Supra, note 5, at xvii.
Supra, note 17, at 10.
“Threats to the Great Lakes”. Great Lakes Now, 25 March 2013.
Sproule-Jones, M. 2002. Restoration of the Great Lakes: Promises, Practices, Performances, at 30. East Lansing MI: Michigan State University Press.
Ibid., at 32.
Treaty Relating to Boundary Waters and Questions Arising with Canada, United States and United Kingdom, 11 January 1909, 36 U.S. Stat. 2448, U.K.T.S. 1910 No. 23.
Great Lakes Water Quality Agreement of 1972, U.S.-Can., Apr. 15, 1972, 23 U.S.T. 301; Great Lakes Water Quality Agreement of 1978, U.S.-Can., Nov. 22, 1978, 30 U.S.T. 1384; Protocol Amending the 1978 Agreement Between the United States of America and Canada on Great Lakes Water Quality, U.S.-Can., Nov. 18, 1987, T.I.A.S. 11551 [hereinafter GLWQA].
GLWQA of 1972, ibid., Article II.
Tschorke, A. 2008. “Great Lakes Water Quality Agreement: Is Honesty Without Accountability or Enforcement Still Enough?” Missouri Environmental Law & Policy Review 15(2): 273–308, at 280.
Ibid.
Hauserman, J.T. 2015. “Water, Water Everywhere, But Just How Much Is Clean: Examining Water Quality Restoration Efforts under the United States Clean Water Act and the United States-Canada Great Lakes Water Quality Agreement”. Georgia Journal of International and Comparative Law 43 : 701–725, at 709.
Supra, note 40, at 42.
Ibid.
“Beneficial Use Impairment” means any change in the “chemical, physical or biological integrity of the Great Lakes System sufficient to cause” one or more of 14 defined impairments, including restrictions on fish and wildlife consumption, restrictions on drinking water consumption, and beach closings. Protocol Amending the 1978 Agreement Between the United States of America and Canada on Great Lakes Water Quality, U.S.-Can., Annex 2(1)(c); Areas of Concern (AOCs) are geographical areas where significant impairment of beneficial uses has occurred and additional AOCs can be added based on further evaluation. Ibid., Annex 2.
Supra, note 45, at 283.
Ibid., at 280.
Supra, note 40, at 108.
For example, the terms “maximum effort”, “all reasonable and practicable measures”, and “best efforts” which Parties agreed to use to fulfil the purpose of the GLWQA, do not have clear definitions or further requirements. Supra, note 45, at 286–293.
Ibid., at 279.
U.S. Constitution, Article I, § 8, cl. 3.
According to the Clean Water Act (33 U.S.C. § 1251 (1972)), the EPA prescribes effluent discharge in US waters; the Toxic Substances Control Act (15 U.S.C. § 2601 (1976)) governs the manufacture, use and disposal of chemicals; the National Environmental Policy Act (42 U.S.C. § 4321 (1969)) requires an environmental impact assessment for any federal action that significantly affects the water quality. It also sets procedural requirements enforceable by citizens; the Safe Drinking Water Act (42 U.S.C.A. § 201 (1974)) sets standards for drinking water quality; and there is some other legislation dealing with non-point sources.
Supra, note 47, at 710.
Supra, note 40, at 56.
Supra, note 47, at 711.
Protocol Amending the Agreement Between Canada and the United States of America on Great Lakes Water Quality, U.S.-Can., Preamble, Sep. 7, 2012, TIAS 13-212. The threats to address, that Parties emphasised in the Preamble, include aquatic invasive species, nutrients, chemical substances, discharge from vessels, the climate change impacts, and the loss of habitats and species.
Ibid., at Article 7.
Supra, note 45, at 301.
Supra, note 47, at 721.
International Joint Commission. 2011. “15th Biennial Report on Great Lakes Water Quality”.
Supra, note 61, Preamble, at 3.
Ibid., Annex 3, § A(3).
Ibid., Annex 3, § A(2).
International Joint Commission. 2017. “First Triennial Assessment of Progress on Great Lakes Water Quality”, at 90.
Ibid., at 10.
Supra, note 61, Article 2(4)(i).
Ibid., Article 2(4)(j).
Ibid., Annex 3.
According to the first IJC Triennial report, the two governments have tended to use advisory references rather than adopting liability-based approaches, either because obtaining remedial actions in international law is difficult, or that claims by one part may bring counterclaims. They are also traditionally reluctant to entrust national concerns to unpredictable and inflexible outcomes of international adjudicative processes. Supra, note 72, at 49–51.
Supra, note 47, at 724.
Supra, note 71, at 161.
Ibid., at 89.
Ibid., at 161.
Ibid., at 88.
Supra, note 71, at 87.
Fryefield, C.B. 2013. The Evolution of the 2012 Great Lakes Water Quality Agreement. Unpublished J.D. thesis, University of Michigan (on file with the Michigan University Library system).
Supra, note 61, Preamble, at 3.
Supra, note 40, at 42.
According to the IJC, due to the large surface area of water and multiple pathways for chemicals to enter, the Great Lakes are uniquely vulnerable to chemical contamination. Supra, note 72, at 88.
For the agreement to be more successful in addressing the emerging contaminants, the IJC in its Triennial Report recommended “Extended Producer Responsibility” (EPR), to extend a producer’s responsibility for a new product to the post-consumer stage of its lifecycle. This would shift responsibility at some levels from local governments to producers. Canada established a country-wide Action Plan for EPR which could be a potential model for collaboration with the US, to jointly identify and designate products and materials for EPR actions. Supra, note 71.
Great Lakes-St. Lawrence River Basin Water Resources Compact, Pub. L. No. 110-342, 122 Stat. 3379 (2008). The Compact is approved by Congress and signed by the President. Each state has passed legislation to implement the Compact’s language.
Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement, U.S.-Can. (Dec. 13, 2005).
Supra, note 89, § 1.2.
Ibid., § 4.9(1), 4.9(3). Diversions of water outside of the basin are generally prohibited, but subject to two exceptions. One exception is for public use of “straddling communities” i.e., any city or town with boundaries partly within the Great Lakes watershed, in which the withdrawn water minus a consumptive use allowance should be returned to the watershed. The other exception is for communities within a “straddling county”, which are located wholly outside the basin, but sit within counties that are partly in the watershed. This exception is subject to the strictest standards of all. Ibid.
New withdrawals or minor increases inside the basin are regulated by the state in which they occur. Ibid., § 4.9(2)(a). Intra-basin withdrawals are allowed only when there is no other “feasible, cost-effective, and environmentally sound water management alternative”. Ibid., § 4.9(2)(b). Withdrawals of over five million gallons per day are also subject to regional review, in which the member states and provinces evaluate proposals and determine whether they meet specific standards set forth in the Compact. Ibid., § 4.9(2)(c).
Ibid., § 4.11. States are required to “create a program for the management and regulation of New or Increased Withdrawals ... by adopting and implementing Measures consistent with the Decision-Making standard”. States must set threshold levels for regulation of water withdrawals to “ensure that uses overall are reasonable, that withdrawals overall will not result in significant impacts ... , and that all other objectives of the Compact are achieved”. Ibid., § 4.10(1). If a state fails to establish thresholds with these requirements, a default threshold of regulating all new or increased withdrawals is imposed. Ibid., § 4.10(2).
The Compact Council is made up of the Governors of the Parties. Ibid., § 2.2.
Ibid., § 7.3(1).
Ibid., § 7.3(2).
Supra, note 90, Article 209; and supra, note 89, § 4.15.
Supra, note 2, § 2.1.
Supra, note 1, § 17.1.1.
Ibid., § 11.3.1.
Ibid., § 12–17.
Ibid., at 694.
§ 102 (2) (c), 42 U.S.C. § 4321 (1970).
Hall, N.D. 2009. “Interstate Environmental Impact Assessment”. The Environmental Law Reporter 39(7): at 10667, 10668.
Ibid.
Ibid., at 10669.
Knox, J.H. 2002. “The Myth and Reality of Transboundary Environmental Impact Assessment”. American Journal of International Law 96(2): 291–319, at 300.
Supra, note 105, at 10672.
Follow-up programmes, as a form of post-decision monitoring, are incorporated in the Canadian Environmental Assessment Act. Also, in California, the Environmental Quality Act uses post-decision monitoring and reporting to verify mitigation measures. These leading approaches to EIA can be an example for building EIA covering more than one jurisdiction. Ibid.
Supra, note 109.
Supra, note 105, at 10668; see, e.g., N.Y.S. Environmental Quality Review Act (SEQRA), N.Y. Environmental Conservation Law § 8.0109 (McKinney 2006); California Environmental Quality Act (CEQA), Cal. Pub. Res. Code. § 21002.1 (West 1976).
“Council on Environmental Quality Guidance on NEPA Analyses for Transboundary Impacts. July 1, 1997”. Memorandum to Heads of Agencies on the Application of the National Environmental Policy Act to Proposed Federal Actions in the United States with Transboundary Effects.
Supra, note 105, at 10668.
Ibid.
According to Principle 21 of the Stockholm Declaration, “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”. UN Conference on the Human Environment, Stockholm Declaration, UN Doc. A/CONF.48/14, 16 June 1972.
Principle 19 of the Rio Declaration expressed that “States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith”. UN Conference on Environment and Development, Rio Declaration on Environment and Development, UN Doc. A/Conf.151/26, 12 August 1992.
See, e.g., UN Economic Commission for Europe’s Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25, 1991, 1989 U.N.T.S. 309; the Framework Convention for the Protection of the Marine Environment of the Caspian Sea (Nov. 4, 2003) which provides a vague commitment to TEIA, and Parties are discussing a more detailed protocol governing TEIA in the region; the International Law Commission of the US has tried to codify TEIA, in a relatively broad scope and strong substantive prohibitions as a corollary to Principle 21 of the Stockholm Declaration and to fill the gaps in the regional agreements; the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, with commentary, in the Report of the International Law Commission, Fifty-third Session, UN G.A.O.R., 56th Sess., Supp. No. 10, at 370–436, UN Doc. A/56/10 (2001); and the North American Commission for Environmental Cooperation’s Draft North American Agreement on Transboundary Environmental Impact Assessment. Negotiations between the US, Canada and Mexico toward an agreement on transboundary environmental impact assessment started in 1997 but have not reached a conclusion yet.
Supra, note 108, at 301.
Kersten, C.M. 2009. “Rethinking Transboundary Environmental Impact Assessment”. Yale Journal of International Law 34 : 173–206, at 180.
Knox, J.H. 2003. “Assessing the Candidates for a Global Treaty on Transboundary Environmental Impact Assessment”. NYU Environmental Law Journal 12(1): 153–168, at 154–155.