3.3.2. Deontological Analysis
The deontological analysis first specifies the rules, guidelines, and general principles relevant for the choice of an EIA and then assesses the extent to which a minimalist EIA would comply with each of them (see summary Table 2
). For the sake of clarity, we group the different rules and principles as legal rules, standards of financing institutions, international good practice guidelines, voluntary corporate principles, and general principles.
Compliance of a “minimalist” EIA with relevant rules and principles.
Compliance of a “minimalist” EIA with relevant rules and principles.
|Rule or Principle||Compliance||Unclear||Non-Compliance|
|Legal rules|| || || |
|Present Peruvian law||x|| || |
|Future Peruvian law|| || ||x|
|Brazilian legal standards|| || ||x|
|Standards of financing institutions|
|Brazilian National Bank for Economic and Social Development (BNDES)||x|| || |
|Equator Principles|| || ||x|
|International guidelines for good practice|
|UNEP Dams and Development Project (DDP)|| || ||x|
|UN Convention on Biological Diversity (CBD) || || ||x|
|Academic state-of-the-art tools|| || ||x|
|Voluntary corporate principles of|| || || |
|Eletrobrás || ||x|| |
|Precautionary Principle|| || ||x|
|Polluter Pays and Full Cost Recovery|| || ||x|
|Universality|| || ||x|Legal rules
: Peruvian legislation since 1990 requires an EIA in order to obtain a concession for large infrastructure projects. The company that is granted the temporal concession is responsible for choosing a registered environmental consulting company and for monitoring its work. The EIA shall “identify and evaluate direct and indirect environmental impacts (physical, biological, socio-economic, and cultural) of the different alternatives and for the different stages of the project” [37
]. Moreover, it shall specify how to avoid, minimize, and/or compensate negative impacts, as well as lay out a contingency plan for potential risks. Since 2004, civil society and the local population have to be informed in a series of informational meetings [38
]. The minimalist EIA will meet these legal requirements as they are necessary for receiving the final concession.
In May 2008, an environmental ministry (MINAM) was created and, in recent years, the Peruvian government has approved general legal guidelines for an integrative environmental legislation: The National System for Evaluation of Environmental Impacts (SEIA). Although MINAM’s influence remains limited to consultations during the process and commenting on the study results, future EIAs have to meet a number of additional requirements, for instance, the economic valuation of environmental impacts and a plan for environmental monitoring [39
]. A minimalist EIA will not meet more advanced standards which were not yet legally required at the time when the EIA was conducted.
The actions of Brazilian companies could also be evaluated according to the legal standards in their home country. Legislation in Brazil already incorporated the EIA in 1982 [34
] and has evolved toward requirements that are considerably stricter than the ones currently applied in Peru. For instance, the EIA in Brazil is evaluated by an entity that is independent from the energy sector (Brazilian Institute of Environment and Renewable Natural Resources, IBAMA), an environmental compensation fund was created, and three different licenses have to be obtained at different stages of the project. Moreover, the technological and location-related alternatives have to be considered, including a non-implementation (“No-Go”) hypothesis, and compensation costs for biodiversity conservation have to be at least 0.5% of the total investment [40
]. A minimalist EIA will not meet Brazilian standards if they imply additional costs.
Standards of financing institutions: For large investment projects, companies typically need financing from big national or international institutions. Many of these institutions require compliance with social and environmental standards, which may be stricter than the requirements of national legislation. In the Inambari case, the Brazilian National Bank for Economic and Social Development (BNDES) will provide a credit of 2.5 billion dollars US. BNDES requirements evoke a set of environmental principles and guidelines, including compliance with national environmental law, the use of clean technologies, and appropriate preventive actions. In order to obtain the BNDES credit, a minimalist EIA will meet these requirements.
The Equator Principles are a prominent benchmark for the financial industry. Equator Principles Financial Institutions (EPFIs) have adopted these principles in order to ensure that the projects they finance are developed in a manner that is socially responsible and reflects sound environmental management practices. For Category A “projects with potential significant adverse social or environmental impacts that are diverse, irreversible or unprecedented”, Principle 7 demands an independent review by a “social or environmental expert not directly associated with the borrower” in order to assess Equator Principle compliance [41
]. BNDES has currently not adopted the Equator Principles [42
]. Since this may involve higher costs and since an independent reviewer may object to potential undervaluation, a minimalist EIA will not follow the Equator Principles.
International guidelines for good practice
: The Dams and Development Project (DDP) of the United Nations Environmental Program (UNEP) provides a “Compendium of Relevant Practices for Improved Decision-Making on Dams and their Alternatives” [43
], with a set of tools for improving the decision-making, planning, and management of dams. In particular, the DDP calls for stakeholder engagement early on and throughout the project, and for a comprehensive options assessment on all scales and aspects of the project, including on alternative sources of energy or project sites.
The UN Convention for Biological Diversity (CBD) provides guidelines for including the biodiversity dimension into environmental impact assessments. These guidelines define a sequence of procedural steps characterizing good practice in EIAs and include screening and scoping, as well as review processes that assure stakeholder participation [44
]. One important aspect of these guidelines is an assessment of possible alternatives and their impacts compared to the proposed project plan.
The international academic community is providing state-of-the-art methodologies and tools, e.g., for the calculation of greenhouse gas emissions or for the economic valuation of ecosystem services. The calculation of greenhouse gas emissions from hydropower in the Amazon is discussed in a series of papers [29
] and freely accessible emission calculators can be found on the Internet [45
]. A general framework for the economic valuation of ecosystem services is presented in The Economics of Ecosystems and Biodiversity (TEEB) reports [28
]; online sources provide an overview of more specific methods and tools [47
Incorporating international good practice principles, guidelines, and methodologies involves additional effort and generates extra costs, and by potentially revealing higher impacts could decrease the chances that the project is accepted as viable. A minimalist EIA will therefore not abide by these principles.
Voluntary corporate principles
: Eletrobrás declares high ambitions with respect to sustainability [1
] and the environment [48
]. The company states as a voluntary corporate principle to “continuously act seeking the best social-environmental performance” and declares that “in partnerships with universities, research centers and experts, Eletrobrás fosters and participates in studies on critical issues: relocation of populations, strategic environmental planning methodologies, emissions of greenhouse gases in hydroelectric reservoirs, reduction of emissions provided from thermal generation” [48
]. Since 2012, the company has been listed in the Dow Jones Sustainability Index (DJSI) [49
]. Unless the environmental performance of EGASUR will be sufficiently criticized and publicly related to Eletrobrás so as to threaten the company’s reputation, a minimalist EIA is unlikely to comply with these voluntary principles.
: A prominent version of the Precautionary Principle, as formulated at the Rio Convention 1992, demands that “when there are threats of serious or irreversible damage, lack of full scientific uncertainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation” [50
]. Uncertainty is inherent to the predictive approach of EIA; hence, there is scope for the application of the principle [9
]. The Inambari project may imply uncertain large-scale risks for people and the environment (the spread of diseases, uncontrolled floods, etc.
). The EIA would need to perform a comprehensive risk analysis and incorporate uncertain large-scale risks. Since the existence of such impacts may threaten the viability of the project, however, a minimalist EIA is likely to omit or understate such risks.
The “Polluter Pays Principle” and the “Full Cost Recovery Principle” are economic principles for environmental regulation with the objective to internalize external costs and to bring private incentives in line with the interest of society at large. The applicability of these principles relies on the identification of all impacts and a correct evaluation of the costs (e.g., of pollution). The EIA is meant to provide this information, and the fact that the company has to pay for the study and for the compensation measures reflects this principle. A crucial question is whether costs are also covered ex post
, when unexpected or low-probability events such as environmental disasters occur. In some countries, compensation funds have been established for these cases [40
]. A minimalist EIA will not capture the complete range of impacts and understate the costs, thereby preventing the proper application of the principles, and it will not insure low-probability events as long as the actor is not held responsible in case they happen.
A prominent ethical principle is universality, as reflected in Kant’s categorical imperative [52
]. This principle holds that an act is right only if its maxim is desirable as a universal rule to be applied in all cases at all times. For the present project, this amounts to asking if it is desirable to perform a minimalist EIA for all investment projects on the planet. We conjecture that an EIA that disregards and undervalues impacts is certainly not desirable as a universal rule (and not in line with the spirit and intention of EIAs as regulatory tools). Hence, a minimalist EIA does not comply with the principle of universality.
To summarize, the ethical analysis has shown that the decision to perform a minimalist EIA raises ethical issues on several levels and in various dimensions, in particular by harming the local population and other stakeholder groups, and by not complying with a series of relevant rules, guidelines, and principles.