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Responsible Business Conduct and Impact Assessment Law: Origins of a Project and Reflections

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Responsible Business Conduct and Impact Assessment Law: Origins of a Project and Reflections

written by Prof Sara Seck 

Environmental lawyers and environmental law professors spend a lot of time thinking about how to prevent environmental harms and the key role that environmental assessment legislation can play to that end. My late colleague Meinhard Doelle, founder of this blog, was a preeminent example of this. His expertise in environmental assessment (EA) law in all its diverse forms – including its potential to tackle challenges such as climate change – is well known and involved collaborations with many (see 2016 blog on next generation EA with John Sinclair and Robert Gibson). Meinhard passed along his knowledge and passion for EA – and by extension, the more expansive impact assessment (IA) – to numerous undergraduate and graduate students, including Dr. Adebayo Majekolagbe, who defended his PhD thesis on just transition and impact assessment law in December 2022 (see 2023 blog reflecting on Meinhard’s contributions to Bayo’s thinking).

While Meinhard was musing about how to prevent harm through legislative EA tools, I was thinking about how developments in the new field of business and human rights (BHR) might be used to prevent harms using a human rights and environment lens (see blog co-authored with Meg Williams). I was also collaborating with University of Ottawa colleague Penelope Simons on the human rights concerns arising from extractive industries with a particular focus on Indigenous rights and gender justice (see co-edited special issue of CJWL and book chapter).

Meinhard and I would sometimes reflect upon our different approaches to similar problems, and in 2019 an opportunity arose to seek research funding through a SSHRC Knowledge Synthesis Grant: Informing Best Practices in Environmental and Impact Assessments. The context was the recent passage of new federal impact assessment legislation, and, greatly assisted by Bayo, a team was assembled including our Dalhousie colleague Naiomi Metallic, Chancellor’s Chair in Aboriginal Law and Policy, and a successful application submitted.

Details about this project and its outcomes are available on the Schulich Law Scholars digital commons (herehttps://digitalcommons.schulichlaw.dal.ca/ialawrbc/). We described the project as follows:

Extractive companies play a major role in the Canadian economy, and their actions have multi-faceted effects on the communities in which they operate, whether within or outside of Canada. Currently a wide range of Responsible Business Conduct (RBC) guidance tools, often embedding human rights due diligence, are promoted to extractive companies. At the same time, companies must comply with Impact Assessment (IA) laws in the jurisdiction in which they operate. While the legal framework of IA and the various RBC tools have some obvious overlaps, their interrelationship has been understudied. This project aims to illuminate the interrelationship and to encourage further research with the aim of facilitating an effective and human rights respecting approach to the integration of IAA and RBC in Canadian law and policy. This research is funded by a SSHRC Knowledge Synthesis Grant: Informing Best Practices in Environmental and Impact Assessments led by Professors Sara Seck and Penelope Simons (Ottawa) with collaborators Professors Meinhard Doelle and Naiomi Metallic and doctoral candidate Bayo Majekolagbe as lead graduate researcher.

A team of JD and graduate student researchers were assembled at both Dalhousie and Ottawa, and in 2020 (updated in 2021) we completed an overview report described as follows:

This report aims to identify RBC tools referenced in the literature as relevant and/or promoted to Canadian extractive companies operating within and outside Canada. While not appraising or pronouncing on the quality of RBC tools, we consider the different actors that promote these diverse tools and whether there is a coherent framework for the efficient and effective application of current and future tools. We focus on RBC tools on human rights, stakeholder engagement, the rights of Indigenous peoples, and the rights of women and girls. Further, we review the position of scholars on the relationship between RBC and IA.

We also completed an evidence brief that was shared with others as part of the Impact Assessment Agency of Canada (IAAC) and SSHRC’s aim to “inform best practices for environmental and impact assessments” (see all evidence briefs here).

At the time, Meinhard and John Sinclair were in the process of editing a new book reflecting on diverse aspects of the new Impact Assessment Act. Entitled The Next Generation of Impact Assessment: A Critical Review of the Canadian Impact Assessment Act, this book project provided us (lead author Bayo Majekolagbe) with an opportunity to draft a chapter reflecting on the IAA RBC relationship (pre-print posted here). We describe our aims in this chapter in part as to:

highlight the role of proponents and their consultants as human rights duty bearers and recommend the integration of human rights approaches into impact assessment processes under the IAA.

However, our work was not – and is not – complete. The conversation about EA and IA laws and RBC that integrates human rights due diligence (HRDD) is still new and ever evolving. For example, one set of RBC guidance that we examine are the OECD Guidelines for Multinational Enterprises, which in 2011 were updated to include a human rights chapter. Currently, the OECD MNE Guidelines are undergoing a ‘targeted update’ which it is anticipated will do a better job of addressing some of the challenges we examined in this project. (An online public consultation on the proposed targeted updates is taking place until February 10, 2023).

Beyond improvements to RBC guidance tools and better law and policy frameworks to facilitate the integration of RBC and IAA in the interests of ecological, environmental and social justice through respect for human rights, there is a need for educational tools that explore and explain these relationships to governments, businesses, lawyers and communities (among others). From 2021 to 2022, with the assistance of Charlotte Connolly and Erin Dobbelsteyn, we embarked upon the development of two such instruments:

Both are works in progress. We invite feedback on these educational tools which will be updated over the course of 2023. Please send comments to: KSG.IA.RBC@gmail.com

The Just Transition Impact Assessment Framework: A Doelle Lens

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The Just Transition Impact Assessment Framework: A Doelle Lens

 Written by: Adebayo Majekolagbe, PhD – Fellow, the African Sovereign Debt Justice Network, and the Marine and Environmental Law Institute, Dalhousie University

 (This blog is dedicated to the memory of Meinhard Doelle who co-supervised my PhD thesis on just transition and impact assessment.)

“Be careful not to present sustainability transition and climate transition as the same thing.” – Meinhard Doelle (Feedback on PhD thesis on Just Transition Impact Assessment)

Meinhard Doelle’s body of work on international climate change law, environmental law, shipping and maritime law, climate policies in Canada, and impact assessment is embedded in an ambitious yet pragmatic outcome-oriented and applied vision of sustainability. From his doctoral thesis published as a monograph on climate change and international environmental law in 2005 to the 2021 co-edited work on the Next Generation of Impact Assessment, the importance of the integration of relevant regimes for sustainability is manifest in Meinhard’s scholarship. His more recent project on the incorporation of climate change into impact assessment (IA) brings the emphasis on integration further to the fore. It was within this project on climate change and impact assessment that my work on the just transition impact assessment (JTIA) framework found an intellectual home with Meinhard as PhD supervisor. In its design, the JTIA framework immensely benefited from the inputs of Meinhard (and Sara Seck who served as co-supervisor). In this blog, using several marked-up drafts of the JTIA framework, I highlight Meinhard’s key contributions to and criticisms of the framework.

The Just Transition Impact Assessment Framework

Climate change is fundamentally a justice issue. It impacts communities least responsible most, and measures to mitigate and adapt to climate change, at times, create or worsen socio-ecological vulnerabilities. Recent developments in climate change and IA scholarship and policies have primarily focused on how to effectively assess the impacts of projects on climate change. As in the case of Canada, this emphasis is often interpreted as the emission potential of projects and how that impacts on a country’s nationally determined contribution under the Paris Agreement. Such narrow framing, however, often results in a technocentric, and expert-focused approach to climate change and impact assessment, which leaves out the issues of justice implicated in climate change-oriented decision making. The JTIA Framework is for the explicit consideration of justice in the incorporation of climate change into IA. Central to developing the framework is the adoption of a wellbeing-centric understanding of just transition, consideration of how just transition can be operationalized through conventional IA, and the specific principles for explicit consideration of justice in IA. Each of these components are reflected on below in the light of Meinhard’s feedback.

  1. A Wellbeing Focused Just Transition

Within climate change discourse, various emphases of justice are addressed through diverse concepts including climate justice, energy justice, and the Common but Differentiated Responsibilities (CBDR) principle. Comparatively, just transition is a more recent concept, most relevant in the consideration of the adverse impacts of response measures in mitigating or adapting to climate change. The transformative potential of just transition has been stressed by several scholars; however, just transition is, in practice, mostly operationalized as ‘jobs transition’. The emphasis on ‘jobs’ is a testament to the historical rootedness of just transition in the labour movement. Also, this narrow understanding of just transition primarily aims to ‘redistribute’ the ‘losses’ and ‘benefits’ of the transition. The evidence that this narrow framing of just transition leads to actual just outcomes is, however, almost non-existent. In fact, evidence is beginning to emerge that a jobs-centric understanding of just transition often leaves socio-ecological injustices unaddressed and at times create new ones. In addition, jobs-centric just transition is primarily domestically scoped, and emphasises the allocation of resources (e.g., to compensate, retrain, or relocate workers) and trilateral social dialogue (between the State, employers, and employees).

“You will want to make sure you articulate as clearly what needs to be included and how.  So far, the message is clear that a focus on jobs is too narrow, it is less clear what exactly you are looking for and how this can/should be achieved.”  –  Meinhard Doelle

Generally, Meinhard agreed that a narrow jobs-centric understanding of just transition is problematic. He, however, noted the need for clarity on what just transition should focus on if not ‘jobs.’ Amartya Sen provides an alternative to the resource allocation based distributive theory of justice which underpins the dominant narrow rendering of just transition. Sen argues that it matters if we focus on the means rather than the outcome of justice. The primary outcome of justice is the attainment of capabilities for human (and ecological) wellbeing. My rethinking of just transition is, at its core, inspired my Sen’s reasoning. It does matter if we are merely focusing on the means of justice (replacement jobs, compensations, relocation, etc.), rather than the end of justice (what do the various interventions mean for actual socio-ecological wellbeing – the wellbeing of humans, communities, and nature). This basic rethinking fundamentally alters where just transition analysis starts from. The operative question is not – what does a transition decision mean for jobs and workers? Such narrowly scoped question does not only confer pre-eminence on jobs over other non-job justice concerns implicated by the transition, but often gives paramountcy to certain types of jobs (mostly workers in the fossil fuel sector) and balkanizes and selectively reifies the identity of individuals as ‘workers’ neglecting other vital ‘identities’ that make the individual (see Sara Seck on the flawed prevalence of the bounded autonomous individual in legal analysis).

The important question when thinking about justice in transition decision-making, is – what does the decision mean for socio-ecological wellbeing (the wellbeing of humans, communities, and nature). The principle is straight-forward: transition decisions should result in improved wellbeing. Martha Nussbaum’s combined basic capabilities (e.g., life, bodily health, integrity, imagination and thought, affiliation, emotion, practical reason, relationship with other species, play, and control over one’s (political and material) environment) are useful in concretely describing the vital constituents of wellbeing that the transition must ensure. The languages of human rights and sustainable development goals are also helpful in establishing the contours of a wellbeing-outcome oriented notion of just transition. Focusing on wellbeing also expands the bracket of the potential beneficiaries of just transition interventions. The question moves from being ‘which workers are impacted’ to ‘whose wellbeing is adversely impacted by a transition decision’? While a subject-scoping analysis based on the latter question might yield ‘workers’ as an answer, it will not always be so, or at least, jobs-related needs of the ‘worker’ will not always be the automatic priority of just transition. Vulnerability, therefore, becomes a key determinant of whose and what interest is prioritised when justice is factored into transition decision making.

“I think I may have mentioned this before, but the UN climate regime did make an effort to get agreement on equity principles at some point.  My recollection was that it all centered around a series of workshops in Bonn around 2008, but I could be wrong.  Ultimately, neither OECD nor OPEC was willing to come to the table in a meaningful way.” – Meinhard Doelle

Wellbeing-focused just transition is also not constrained by artificial geographical delineation. It is the wellbeing of ‘whoever’ (or ‘whatever’ as in the case of nature) regardless of where they are domiciled. Meinhard shared the view that climate change measures have the potential of resulting in unjust outcomes in third States. He, however, appeared less sold on addressing these unjust impacts through the UN climate regime, more so as previous efforts had failed. Despite recent developments, the possibility of an effective and equitable fossil fuel non-proliferation agreement is limited. As Meinhard suggested, neither the global south nor north has an appetite for such regime. My argument simply is that a deliberate and broadly scoped interpretation and application of the common but differentiated responsibilities (CBDR) principle when crafting transition decisions could go a long way in ensuring that such initiatives are just to third countries, particularly countries most vulnerable to the impacts of climate change and response measures. For example, paying attention to responsibility, capability, and circumstance in designing a carbon border adjustment policy could, in theory, result in a fundamentally more just policy as against what is currently obtainable under the EU Carbon Border Adjustment Mechanism.

  1. Conventional IA as an Interstitial Space for Just Transition

Now to the second part of Meinhard’s first comment (see box 1 above) – how can a wellbeing focused understanding of just transition be achieved? Just transition scholarship is beginning to pivot towards more applied narratives. Robins, Brunsting, and Wood’s just transition guide for investors, Bright and Buhmann’s work on risk-based due diligence and just transition, and the EU’s Just Transition Mechanism are examples of how researchers and policy makers are attempting to convert just transition from theory to application. I have argued that impact assessment is an important piece of the applied just transition puzzle. Unsurprisingly, Meinhard gave his most extensive comments on this section of the work.

“I very much enjoyed reading this chapter, Bayo. Very well done … Overall, my 2 main points are these:

  1. The lines between the various different types of IA are not always clear to me … So, when you talk about how EIA differs from social, human rights, gender, … impact assessment, you might make this clear from the start, that these more specific forms of social impact assessment have to some extent been incorporated into EIA or IA.
  2. The other area I think could use more clarity is the tiering of assessments and the implications all that has for the role of impact assessment as a just sustainable transition tool. I would certainly think that the effective integration of well-done regional assessments would offer significant opportunities, but even the opportunities offered by strategic assessments could be explored more.” – Meinhard Doelle 

Meinhard’s first point, in some sense, accentuates the argument that conventional IA is only relevant to just transition to the degree that the various relevant strands of IA are holistically integrated. Meinhard correctly noted that seemingly different modes of IA – from social impact assessment to gender impact assessment – have over time been considered as valued ecosystem components (VECs) in environmental impact assessment (EIA). These VECs have, however, grown into distinct IA modes given the inadequacy of consideration when subjected under generic EIAs. The nature and underpinning assumptions that actuate these IA modes also differ. For example, while biophysical EIA is often approached as a dominantly expert-centric and technical venture; the ‘public’ is, however, deemed more central to interest and right-based IAs. Nevertheless, for conventional IA to be relevant to just transition, various modes of IAs must necessarily be ‘holistically’ integrated. Holistic integration requires not just the consideration of ‘other’ impacts, but the synthesis of fundamental principles and approaches. For example, it is not enough to simply consider human right impacts in an EIA. Key principles like a broad scoping of human rights using international instruments and the inherence of rights which makes trade-offs generally unacceptable, must be embedded in the IA process. Ecological IAs (EIA, strategic environmental assessment etc.), interest and right-based IAs (social impact assessment, human rights impact assessment, gender-based assessment plus etc.), and dimensional IAs (life cycle assessment, cumulative effects assessment, life cycle assessment, transboundary impacts assessment etc.) all address different aspects of a vision of just transition focused on socio-ecological wellbeing.

Meinhard believes that high-level assessments like strategic and regional assessment “offer significant opportunities” for just transition. His position is supported by theories of change and the scholarship, studies, and emerging anecdotal evidence on just transition policies. The most successful just transition policies are those founded on well-crafted long-term plans. The more sudden a ‘transition’, the more likely that it will be unjust. Indeed, this is one of the attractions of IA as a just transition tool. Elementarily, IA is an ex-ante predictive and planning mechanism. Strategic assessment, in theory, is a tool for articulating long-term vision for sustainability. It is, generally, unmoored from the deep-seated and vested interests that limit the sustainability-value of project assessment. Strategic assessment could be as broad as focusing on climate change and pathways for addressing it (for example, Canada’s Strategic Assessment on Climate Change (SACC) could have achieved this end except that it was crafted as a ‘Guidance’ for assessing climate change), or more narrowly to focus on a specific sector (for example, Canada’s prematurely terminated strategic assessment on thermal coal). At this strategic level, contesting visions and values could be accommodated; transformative learning can be achieved; and equity and effectiveness can be more intentionally made the essential footholds of transition decisions.

“I could be wrong about this, but my sense is that you need to consider anything that is done under the heading of ‘impact of response measures’ through the lens of how this is perceived within the UN climate regime. Essentially, this is seen by most developed countries as a money grab and/or stall tactic by Saudi Arabia and other OPEC countries opposed to climate action.” – Meinhard Doelle

More specifically, on the consideration of just transition when climate change is incorporated into IA, Meinhard did not dispute the argument that, so far, efforts to incorporate climate change into impact assessment fall short of the standard needed to address climate change effectively and equitably. He, however, was not too sold on my argument that the expectation that the ‘impact of response measures’ would be assessed under the international climate regime translate to an expected standard of conduct for countries. This is more so as the language of ‘impact of response measures’ has been coopted by fossil fuel dependent economies (FFDEs) as ‘a money grab and/or stall tactic’. However, other than the difference in nomenclature ‘just transition’ substantially focuses on similar concerns as the ‘impacts of response measures’ framework under international climate regime. The bottom line is that transition decisions are not without impacts, and for transition to be just, there is at least an expectation under international climate law that such impacts will be assessed. More importantly, for climate change and impact assessment to be truly effective it must align with key characteristics of climate change including – the global and multi-sectoral nature of the sources and impacts of climate change; climate change adaptation and loss and damage (locally and globally); delayed and cumulative nature of climate impacts and the causation challenge; and need for ambitious and immediate climate action.

  1. A JTIA Framework for an Explicit Consideration of Justice in Impact Assessment

Although conventional IA holds opportunities for the consideration of just transition impacts, the JTIA framework consists of principles to guide such consideration. To reiterate, socio-ecological wellbeing is at core of my conception of just transition. The first and overarching principle of the JTIA framework is, therefore, the adoption of ecological and human wellbeing as the primary objective of transition decision making. Meinhard, however, identified the anthropocentricity of just transition as a potential barrier to just transition being a useful site for the integrated consideration of ecological and human wellbeing.

Guiding Principles for Just Transition Impact Assessment

  1. Adopt ecological and human wellbeing as the objective of transition activities.
  2. Ensure that transition decisions are sensitive to vulnerability.
  3. Consider the principle of differentiation in decision making.
  4. Ensure that life cycle, cumulative, regional, and transboundary impacts are considered.
  5. Adopt a rights-based approach to social dialogue and ensure participatory parity.

While the conventional narrowly scoped understanding of just transition might very well fall under Meinhard’s criticism, the socio-ecological wellbeing emphasis of my vision of just transition is, in part, developed to address such pushback. In any case, as others have argued, human wellbeing and ecological wellbeing are fundamentally connected. Transition decisions should be considered in the broader context of their contribution to the diversity and resilience of ecosystems. This is what Meinhard meant when he cautioned that climate transition should not be conflated with sustainability transition, as the former does not always lead to the latter; but it should. As already noted, human rights and sustainable development goals, while limited, are useful proxies for considering the impacts of transition decisions on human wellbeing.

“Isn’t “just transition” also quite anthropocentric? Does JT do a better job integrating ecosystem wellbeing with human wellbeing?” – Meinhard Doelle

With wellbeing as an objective, it is essential that decision makers pay particular attention to vulnerability and apply the principle of differentiation in transition decision making. Common but differentiated responsibilities (CBDR) is a core principle of international climate change law for the equitable allocation of the obligations and benefits of the transition. There is an argument to be made for a CBDR mindset within States. It is a mindset that recognizes responsibility, capability, and circumstances in IA and eventual transition decisions. The differentiation principle also applies in the context of considering the transboundary impacts of transition decisions. In addition, as Meinhard had noted, high level assessments like regional and cumulative assessment are very important to understanding the interconnected nature of transition impacts both temporally and spatially.

“I am not sure how helpful the Strategic Assessment of Climate Change (SACC) example is, given how far removed that is from any form of shared decision making or consensus-based decision making … as a result, the example seems disconnected from the points you are trying to make.” – Meinhard Doelle

Meinhard highlighted the importance of “shared decision making or consensus-based decision making” to any meaningful application of impact assessment for just transition ends. This is one of his primary criticisms of the Canadian SACC; a critique that equally applies to Canada’s policy statement on thermal coal mining. While all just transition schools of thought accept social dialogue has a central element, standards of dialogue differ. In the JTIA context, rights-based and parity-sensitive dialogue is emphasized. Rights-based dialogue not only elevates social dialogue for transition decision to the status of a legal duty, but it also embraces the reality of dialogue as a spectrum ranging from consent to information depending on the nature of rights and potential harm. Social dialogue is parity sensitive when the issue of power is explicitly addressed, parity impeding norms are identified and revoked, and the independence and agency of parties are protected and supported.

As far as the potentials of impact assessment for real and meaningful climate action in Canada goes, only a few have contributed as much as Meinhard. He was cleareyed about the limitations of the practice of IA, yet he clearly saw the possibilities in IA and led the charge in making IA a more useful tool for sustainability. His work with John Sinclair on the next generation of impact assessment is proof. I am one of the lucky few to benefit directly from the beauty of Meinhard’s mind and heart. But many more will yet benefit from systems which have gotten better because of his contributions.

 

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