Improving Regulation of Deep-Sea Mining Environmental Impact Assessments

In recent years, deep-sea mining in the Area, “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction” (UNCLOS, 1982, art. 1 ¶ 1(1)), has garnered increasing attention as a potential method of obtaining scarce minerals needed for clean technologies. However, as interest has grown, so have concerns about the environmental impacts that will result from the development of an extractive industry within sensitive deep-sea environments. Environmental impact assessments (EIAs) have emerged as key tools for identifying, evaluating, and minimizing environmental impacts from deep-sea mining activities. International best practice identifies a general framework for conducting effective EIAs. First, a proposed activity undergoes screening to determine whether an EIA must be conducted. If an EIA is required, the scoping stage identifies the range and extent of environmental impacts that will be addressed in the assessment. Once scoping is complete, the project proponent conducts an environmental analysis, often with reference to threshold values that identify limits on the amount of environmental harm a project may cause, and documents its analysis in a draft environmental impact statement (EIS). Baseline studies, which identify the environmental conditions that exist in a project area before the project’s start, are essential for informing this report. Next, the draft EIS undergoes expert review. Draft EISs are also subject to a stakeholder consultation process, which may occur at the scoping stage, after the draft EIS is submitted, or after expert review. Once the expert review and stakeholder consultation are complete, the regulator makes a final decision about whether the activity may proceed. After an EIS’s approval, the regulator performs follow-up measures to ensure compliance with the EIA. Additionally, many regulators provide an opportunity to appeal decisions made during the EIA process and on final EISs. Notably, an EIA process requires a relatively high level of institutional capacity to be effective, as it relies heavily on experts, and benefits from high levels of transparency. The International Seabed Authority (ISA) is currently developing a Mining Code to govern exploration and exploitation of deep-sea minerals in the Area. Within the code, EIAs are essential tools for the ISA to fulfill its explicit responsibility under the Law of the Sea (UNCLOS) to effectively protect the marine environment. As such, both the exploration and exploitation regimes include provisions either requiring or recommending the conduct of EIAs, with the Legal and Technical Commission reviewing EISs prepared under both regimes. Even so, these provisions have been subject to critique, particularly in light of recent ISA approvals of EISs under the exploration regime. This study identifies a range of disparate recommendations to improve the EIA process under the ISA’s Mining Code and outlines areas of consensus among them. To conduct this research, I first completed a literature review of existing scholarship on the ISA’s EIA process. I then conducted semi-structured interviews with scientific, regulatory, and legal experts who have expertise related to the deep-sea environment and/or deep-sea mining. The literature review and interviews outlined many recommendations to improve the EIA process for deep-sea mining under the ISA’s exploration and exploitation regimes. These recommendations were divided into the following categories:

1. Legal and Technical Commission: (a) LTC composition and capacity, (b) Expert consultation by the LTC, (c) Relationship between the LTC and the proponent, (d) Additional factors impacting the capacity of the LTC, and (e) LTC decision-making and transparency;
2. Environmental information and threshold values: (a) General environmental policy, (b) Baseline studies, and (c) Threshold values;
3. Stakeholder consultation: (a) Defining stakeholders, (b) Adequacy of consultation, (c) Timing of consultation within the process, (d) Response to comments; and
4. Additional factors influencing the EIA process: (a) Monitoring and adaptive management, (b) Opportunity to appeal.

While the recommendations touch each part of the EIA process, they center around four central themes: (1) addressing uncertainty regarding the nature and operations of the developing deep-sea mining industry and its potential impacts on the environment, (2) increasing transparency about the EIA process and the substance of EISs, (3) increasing LTC capacity to review and evaluate EISs, and (4) strengthening the roles of the regulator and external stakeholders in the EIA process. Additionally, the recommendations illustrate similarities in the ways to bolster the EIA process under both the exploration and exploitation regimes.