A Citizen-Centric Approach to Evidence-Based Decision-Making under the European Green Deal

• A Introduction

  The European Green Deal (EGD) is an ambitious plan that envisions a profound transformation of the European Union (EU) economy to achieve climate and sustainability objectives. It has a goal of achieving net zero emissions of greenhouse gases by 2050 and a decoupling of economic growth from resource use.¹x European Commission, ‘Communication from the Commission to the European Parliament, The European Council, The Council, The European Economic and Social Committee and the Committee of the Regions: The European Green Deal’ (Brussels, COM(2019) 640 final, 11 December 2019) 2 (‘EC Communication EGD 2019’). This growth strategy seeks to transform the EU into a fair and prosperous society that protects the EU’s natural capital and the health and well-being of its people from risk of environmental harm. The ‘deeply transformative policies’ contemplated will have widespread impacts on communities and industries across Europe, from energy supply, industry, production and consumption, to large-scale infrastructure, transport, food and agriculture, construction, taxation and social benefits.²x Ibid., 4. As a result, it promises to affect the lives of just about everyone in the EU.
  The EGD has already been met with fierce criticism, ranging from concern over whether it can meet its environmental and economic objectives to allegations that it externalizes environmental impacts, prioritizes private investment over the public interest, places blind faith in technology and facilitates greenwashing.³x Alfons Pérez, Green Deals in a Time of Pandemics: The Future will be Contested Now (Libros en Acción, 2021) 39, 54, 120; Fiona Harvey and Jennifer Rankin, ‘What is the European Green Deal and will it really cost € 1tn?’, The Guardian (Web page, 9 March 2020), www.theguardian.com/world/2020/mar/09/what-is-the-european-green-deal-and-will-it-really-cost-1tn; Alfons Pérez, ‘A Green New Deal for whom?’, openDemocracy (Web page, 23 April 2021), www.opendemocracy.net/en/oureconomy/green-new-deal-whom/. Because of the diversity of the European economy, the EGD necessitates more drastic changes in some nations than others, leading to concern over disparities in its application and increasing regional inequality.⁴x Ibid. The broad mandate is likely to exacerbate pre-existing and underlying societal tensions, and will likely result in deep conflicts with communities that are impacted. At a minimum, we may find that the process by which science, technology and society constantly shape one other, i.e. ‘a co-constitutive process’,⁵x Susana Borrás and Jakob Edler, ‘Introduction: on governance, systems and change’ in Susana Borrás (ed), The Governance of Socio-Technical Systems: Explaining Change (Edward Elgar, 2014) 1. will be reflected in its implementation.
  The EGD recognizes that the transition envisioned must be ‘just and inclusive’, putting people first and paying attention to the regions, industries and workers who will face the greatest challenges.⁶x EC Communication EGD (n 1). It sees active public participation and confidence in the transition as essential to its success. Furthermore, the EGD highlights the need for careful attention to the potential trade-offs between economic, environmental and social objectives, stating that it will be guided by the European Pillar of Social Rights in ensuring that “no one is left behind”.⁷x Ibid., 4. However, this raises important questions about how policymakers will strike the appropriate balance. How will the social and human rights impacts of these sweeping new laws be taken into account in the decision-making process? With the emphasis of the EGD on climate and economic data, what other types of evidence must be considered to ensure that policymakers do not place undue reliance on exclusive, ‘authoritative’ sources? In other words, how can we avoid technocratic⁸x For an interesting discussion of how technocratic politics may undermine democratic legitimacy, see Eri Bertsou and Daniele Caramani, The Technocratic Challenge to Democracy (Routledge, 2020). styles of decision-making that risk jeopardizing the democratic ideals of the EU and the environmental objectives of the EGD?
  This article takes a legal-doctrinal approach to assess the evidentiary basis of EGD decision-making and recommend that evidentiary requirements be re-framed and broadened to mandate comprehensive social impact assessment (SIA) and human rights impact assessment (HRIA). This is necessary to ensure that EU institutions properly assess and weigh the impacts of these sweeping changes upon public stakeholders when implementing the plan. Section B begins by discussing the process by which key decisions are made to implement the EGD, including the role contemplated for public stakeholders, and the sources of evidence that are considered legitimate or authoritative within the decision-making process. Section C provides an overview of SIA and HRIA practices, forming the basis for a critical discussion in Section D of the evidentiary gaps that have been a persistent feature of EGD decision-making to date. This section concludes with a recommendation that comprehensive SIA and HRIA be incorporated into the rollout of the EGD. Inclusion of civil society and the incorporation of local knowledge through meaningful public consultation will be critical to addressing some of the potential shortcomings of the EGD. However, stakeholder consultation alone may fail to account for impacts in a systematic way. Instead, the complex scientific data relating to environmental and economic aspects of the EGD must be counterbalanced with comprehensive assessment of its social and human rights impacts, if we are to come close to achieving a ‘just transition’ and ensure that the pursuit of environmental objectives does not lead to other kinds of injustice.

• B Current Evidentiary Approach within European Green Deal Decision-Making

  I Structure and Pathways to Implementation

  The EGD is an overarching EU strategy communicated by the European Commission (EC) as an ambition. The EGD started with a Communication of the EC in 2019, wherein the Commission stated its aims and set out a roadmap to achieving them. This included several policies and strategies, including the Sustainable Europe Investment Plan, the investment pillar of the EGD.⁹x European Commission, ‘Communication from the Commission to the European Parliament, The European Council, The Council, The European Economic and Social Committee and the Committee of the Regions: Sustainable Europe Investment Plan, European Green Deal Investment Plan’ (Brussels, COM(2020) 21 final, 14 January 2021) (‘EC Communication Investment’). The EGD is implemented through different EU law instruments proposed by the EC, encompassing not only new legislative proposals but also the mainstreaming of green policies throughout all policy areas.¹⁰x Ibid., 3. The EGD is, therefore, a huge endeavour that will require many legislative and non-legislative actions over the coming years to effectuate.
  While the EGD itself is not a binding legislative instrument, the first legally binding instrument was adopted in 2021 in the form of a regulation, the European Climate Law, which set a binding goal of neutrality within the EU by 2050 and developed a framework for achieving it.¹¹x Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 (‘European Climate Law’). Since regulations are directly applicable and binding in Member States, no transposition of this obligation was needed within national legal orders. The obligation applies at national and local levels, which makes the European Climate Law a powerful instrument for implementing the EGD.¹²x Matters arising out of the European Climate Law may be adjudicated before the Court of Justice of the European Union.
  That same year, the Commission adopted a new package of legislative proposals under the Fit for 55 package,¹³x European Commission, ‘European Green Deal: Commission proposes transformation of EU economy and society to meet climate ambitions’ (Press Release, 14 July 2021). Proposals within this package include: revision of the EU Emissions Trading System (ETS), including maritime, aviation and CORSIA as well as a proposal for ETS as own resource Carbon Border Adjustment Mechanism (CBAM) and a proposal for CBAM as own resource Effort Sharing Regulation (ESR); revision of the Energy Tax Directive; amendment to the Renewable Energy Directive to implement the ambition of the new 2030 climate target (RED); amendment of the Energy Efficiency Directive to implement the ambition of the new 2030 climate target (EED); revision of the Regulation on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry (LULUCF); revision of the Directive on deployment of alternative fuels infrastructure; and revision of the Regulation setting CO₂ emission performance standards for new passenger cars and for new light commercial vehicles: European Commission, ‘Communication from the Commission to the European Parliament, The European Council, The Council, The European Economic and Social Committee and the Committee of the Regions Empty: “Fit for 55”: delivering the EU’s 2030 Climate Target on the way to climate neutrality’ (Brussels, COM(2021) 550 final, 14 July 2021). to reduce net emissions by at least 55 percent by 2030 compared to 1990, with the intention of becoming the first climate-neutral continent by 2050. Many legislative proposals were tabled within the package, including the introduction of a Social Climate Fund to provide income support to vulnerable households and support Member States with emissions reduction measures and investments. At the time of writing, these proposals were still working their way through the legislative process, and are currently under debate before the Council of Ministers.¹⁴x See, e.g., the debate in March 2022: Fit for 55 package a) Revision of Directive (EU) 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading to implement the ambition of the new 2030 climate target and related proposals (ETS) b) Revision of Regulation (EU) 2018/842 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 (ESR) c) Revision of Regulation (EU) 2018/841 on greenhouse gas emissions and removals from land use, land use change and forestry (LULUCF) d) Revision of Regulation (EU) 2019/631 setting CO2 emission performance standards for new passenger cars and for new light commercial vehicles e) Regulation establishing a Social Climate Fund Policy debate.

  II Scientific Evidence-Based Legislation

  The EGD’s plan for a green transition is heavily dependent upon scientific evidence and complex data. Determining which strategy will lead to ‘green’ changes and how to implement it is not an easy task, but one that is dependent on a high degree of knowledge and expertise. EGD decision-making emphasizes reliance upon scientific data from the Intergovernmental Panel on Climate Change (IPCC), the UN body for assessing complex and dynamic data related to climate change.¹⁵x See, e.g., Xavier Le Den, Sébastien Bruyère et al., Feasibility and Scoping Study for the Commission to Become Climate Neutral by 2030 (Final Report, 2 September 2020). The EGD also aligns with the Global Sustainability Goals and utilizes economic data.¹⁶x EC Communication Investment (n 9).
  To determine what actions are appropriate, the European Climate Law established the European Scientific Advisory Board on Climate Change (Advisory Board) through an amendment to the founding regulation of the European Environment Agency (EEA).¹⁷x Regulation (EC) No 401/2009 of the European Parliament and of the Council of 23 April 2009 on the European Environment Agency and the European Environment Information and Observation Network [2009] OJ L 126, 13-22. The Advisory Board is independent from Member States and EU institutions and provides independent scientific advice on EU climate measures and targets. The Board consists of 15 members who are appointed by the management of the EEA through an open procedure. The official mandate of the EEA is to support the EU to ‘make informed decisions’ on sustainability goals and actions.¹⁸x Ibid., Art. 2. The EEA is also informed from ‘the bottom up’ by a network of national focal points and interest groups. The EGD is, therefore, supported institutionally by the Advisory Board, with links to the EEA, which in turn cooperates closely with national environmental agencies and ministries.
  The complex scientific evidence underpinning EGD decision-making may be difficult to grasp from a citizen’s perspective. Moreover, given the EGD’s acknowledgement of the need for careful attention to the potential trade-offs between economic, environmental and social objectives to ensure that “no one is left behind”,¹⁹x EC Communication EGD (n 1) 4. we are left with the question of how policymakers strike the appropriate balance and what evidence will be relied upon. The legislative proposals and policies of the EGD affect many citizens, so how are the viewpoints of everyone affected accounted for and factored into decision-making? How are the social and human rights impacts of these sweeping new laws taken into account in the decision-making process? What evidence must policymakers consider, apart from economic and climate data? Taking the Oxford English Dictionary definition of ‘evidence’ as “the available body of information indicating whether an opinion or proposition is true or valid”,²⁰x OED Online, Oxford English Dictionary (Oxford University Press, 2022). all kinds of data can be considered evidence,²¹x Ross C. Brownson, Jamie F. Chriqui, and Katherine A. Stamatakis, ‘Understanding Evidence-Based Public Health Policy’ (2009) 99(9) American Journal of Public Health 1576. depending on the belief or proposition in question. For policy-relevant evidence, both quantitative data and qualitative information (e.g. narrative accounts) are important.²²x Ibid. Thus, in developing policy that is ‘just’ to ensure that ‘no one is left behind’, at a minimum, we would require evidence pertaining to what is ‘just’ and what it means not to be ‘left behind’. It is not clear at this stage whether (and how) EGD policymakers intend to obtain such evidence.

  III Citizen Involvement in the EGD

  The EGD sees active public participation and confidence in the transition as essential to its success. In fact, empirical research on perceived justice shows that citizens can better accept decisions made with citizen involvement, rather than ‘top-down’ decisions.²³x On this point, see also Josephine van Zeben, ‘The European Green Deal: the future of a polycentric Europe?’ (2022) 26(5-6) European Law Journal 300. There are a number of options for public participation in policymaking that have now been included to some extent in the EGD, so the EGD seems to take a blended approach to citizen involvement. The EGD acknowledges that citizen participation in the initial legislative stage is vital to ensuring the legitimacy of policies and public buy-in for climate measures. There is stakeholder consultation within the legislative process and citizen involvement through the creation of platforms, including the Conference on the Future of Europe citizens’ panels. In addition, the EC has developed initiatives within the EGD to include public stakeholders, such as the European Climate Pact and the New European Bauhaus.²⁴x The European Climate Pact is a platform for creating a network of engaged citizens to discuss climate-related topics, exchange ideas and collectively develop and implement climate solutions: European Union, European Climate Pact (Web page, 2022) https://europa.eu/climate-pact/index_en. The New European Bauhaus allows community partners to develop cultural and creative dimensions to the EGD: European Union, New European Bauhaus (Web page, 2022) https://europa.eu/new-european-bauhaus/index_en.
  Other forms of citizen participation are provided for by local projects, e.g. the German Coal Commission’s creation of opportunities for regional and local participation to share experiences about local transition projects. Localized initiatives can be beneficial as they are much more inclusive and have the potential to incorporate local knowledge of environmental and other impacts. How the output of these participatory initiatives will be taken into account in the drafting of legislation and subsequent EGD decision-making, though, remains a question. It is yet to be seen how citizens’ involvement in the implementation phase of all the different instruments will be ensured. What strength of voice will be given to citizens and within what kind of framework? Citizen involvement in the EGD has already been criticized on the basis that non-governmental organizations (NGOs), businesses and well-informed groups are more likely to provide feedback in the consultations, thus begging the question of whether there is true citizen involvement and public debate.²⁵x Francesca Colli, ‘A just transition for the citizens? Ensuring public participation in the European Green Deal’ (2021) 68 European Policy Brief 2. Moreover, despite the involvement of civil society in the early stages of development of the EGD, the specific and localized effects for citizens will perhaps only be experienced once the new instruments are adopted and implemented. To compensate for negative effects upon citizens, the EGD seems to prioritize financial support over other types of solutions.

  IV Financial Support to Ensure a ‘Just Transition’

  One of the tools in the EGD for correcting inequalities between citizens that might occur in the transition towards climate neutrality is the Just Transition Mechanism (JTM). The JTM is based on technical and advisory support and, importantly, consists of a Just Transition Fund (JTF) for regions that have a fossil fuel-based economy. Approximately € 150 billion of the Fund will be spent on energy access, the creation of jobs, and professional training.²⁶x European Commission, The Just Transition Fund (Web page, 2022) https://ec.europa.eu/info/strategy/priorities-2019-2024/european-green-deal/finance-and-green-deal/just-transition-mechanism/just-transition-funding-sources_en. The mechanism is the tool through which the EC strives for “a fair and just green transition […] to support the workers and citizens of the regions most impacted by the transition”.²⁷x EC Communication Investment (n 9). The Commission acknowledges that transition towards climate neutrality will have economic and social justice impacts, especially in regions that rely on fossil fuels or highly carbon-intensive industries. The JTM also provides for a Public Loan Facility through which loans will be made to local authorities to finance projects, such as infrastructure, district heating networks and renovation of buildings.
  The focus of the JTM is mainly towards socio-economic development.²⁸x Ruven C. Fleming and Romain Mauger, ‘Green and just? An update on the “European Green Deal”’ (2021) 18(1) Journal for European Environmental & Planning Law 164. The JTM seeks to ensure that ‘no one is left behind’, but may be criticized as focusing mainly on workers in the affected regions, rather than all citizens.²⁹x Ibid. These mechanisms for financial support may contribute to improving public acceptance of the EGD, but should be backed up with concrete forms of participation by (and inclusion of) citizens and other public stakeholders to ensure that investments are made in a socially acceptable and beneficial manner. While the EGD includes some aspects of deliberative democracy within its processes, coupled with compensation for vulnerable households, how allocation of this financial support will be determined and who will be able to participate in such decisions remains in question. Moreover, what tools are at the disposal of policymakers to ensure that these investments benefit the social and economic development of impacted communities? Evidence relating to social benefit will be required to complement evidence on economic benefit, in determining the appropriate investment strategies.

• C Social and Human Rights Impact Assessments for Green Transitions

  The emphasis of the EGD on climate and economic data to make decisions that are ‘fair’ and ‘just’ raises important questions about whether such data are sufficient or adequate to ensuring the implementation of the EGD in a ‘fair’ or ‘just’ manner. Beyond the issue of defining what is ‘fair’ or ‘just’ in each context, we require further evidence about impacts beyond the obvious economic ones. What about impacts to culture, community cohesion and family networks? What about human rights impacts? If relied upon exclusively, the current, authoritative sources of evidence will fall short in achieving a just transition. So how can this be rectified?

  I Ensuring a Participatory and Inclusive European Green Transition

  In determining how we may ensure that EU institutions (and the entities engaged by them in public-private partnerships to implement the EGD) properly address the social and human rights impacts of their initiatives, much can be learned from the world of impact assessments (IAs) undertaken for business, particularly within the resources sector. Major resource projects have significant impacts on local communities and economies, and the scale of impact has necessitated the development of tools and processes to effectively identify, mitigate and manage these effects, and even improve community well-being. While the results may still leave much to be desired from the perspective of communities in some cases, the tools and processes have undergone decades of development and refinement, offering significant value to this discussion.
  Years of experience with major projects has demonstrated that governments are all too eager to endorse projects, citing the national interest as justification to expedite projects that some argue ought to have been planned better, particularly with regard to the social and human rights risks.³⁰x Frank Vanclay, ‘Changes in the impact assessment family 2003-2014: implications for considering achievements, gaps and future directions’ (2015) 17(1) Journal of Environmental Assessment Policy and Management 1550003 (‘Assessment Family’); Asmaa Khadim, ‘Environmental rights and extractive industries in Canada and Argentina: a comparative constitutional analysis’ (PhD Thesis, The University of Queensland, 2021). The EGD is no different in this regard, considering the pressing demands of addressing global climate change concerns. While there is no question that we must find effective ways to reduce and, where feasible, eliminate environmentally destructive human activity, the success of the EGD in achieving its environmental objectives will depend in large measure upon whether social and human rights impacts are fully understood and mitigated. Furthermore, this cannot be achieved with a ‘top-down’, technocratic approach, but rather a citizen-centric one that includes impacted individuals and groups within a deliberative planning and decision-making process. In fact, there is increasing recognition that participation, inclusion and societal engagement are central to realizing energy transitions that are “more democratic, sustainable, socially shaped, responsible, just and responsive to public values and human needs”.³¹x Jason Chilvers, Helen Pallett and Tom Hargreaves, ‘Ecologies of participation in socio-technical change: the case of energy system transitions’ (2018) 42 Energy Research & Social Science 199.
  Apart from being a way to increase acceptance of energy transition measures where people are required to proactively change their behaviour or invest their own resources, citizen inclusion also has a strong normative democratic appeal.³²x Toyah Rodhouse et al., ‘Public agency and responsibility in energy governance: a Q study on diverse imagined publics in the Dutch heat transition’ (2021) 77 Energy Research & Social Science 102046. Granting citizens a say in decision-making might (re)establish a form of democratic legitimacy by enabling trust, transparency and accountability, especially given that responsibilities in energy transition governance are increasingly shared by diverse actors who are not publicly answerable for their actions,³³x Carolyn M. Hendricks, ‘On inclusion and network governance: the democratic disconnect of Dutch energy transitions’ (2008) 86(4) Public Administration 1009 in Rodhouse et al. (n 32). as may be the case with EGD public-private partnerships. Currently, there are diverging views on the roles, responsibilities and mandates that are appropriate for citizens in energy transitions, underlined by differing evaluations of people’s needs, values, wants, motivations, skills and capabilities.³⁴x Rodhouse et al. (n 32). For the heterogeneous perspectives of community engagement professionals, see also Elisabeth van de Grift, Eefje Cuppen and Shannon Spruit, ‘Co-creation, control or compliance? How Dutch community engagement professionals view their work’ (2020) 60 Energy Research & Social Science 101323. With regard to energy decision-making, researchers have found that governance actors often presume the public to be “unknowledgeable, ignorant, irrational, incapable, unwilling, unresponsive, or irresponsible agents who are de facto against development”.³⁵x Ibid. Assumptions and beliefs built upon simplistic and stereotypical biases can result in the imposition of barriers to people’s access to, and voice in, decision-making, and can result in ‘closed down’ public engagement design.³⁶x Ibid. These types of technocratic divides can occur when government bodies privilege the views of a technological elite over those of the general public, thus marginalizing public stakeholders without the relevant technical training within the decision-making process.³⁷x Jonathan A. Obar, ‘Closing the technocratic divide? Activist intermediaries, digital form letters, and public involvement in FCC policy making’ (2016) 10 International Journal of Communication 5865, 5868.
  Participatory processes in socio-technical change are a key issue, and while energy research has developed ‘whole system’ approaches for technically modelling energy transitions, the approach to societal and democratic engagement remains fragmented.³⁸x Chilvers et al. (n 31). Although new systemic approaches and perspectives on participation in energy transitions are beyond the scope of this article, it is important to be aware of ongoing developments within this field.³⁹x See, e.g., Eefje Cuppen et al., ‘Participatory multi-modelling as the creation of a boundary object ecology: the case of future energy infrastructures in the Rotterdam Port Industrial Cluster’ (2020) 16 Sustainability Science 901. One of the essential concepts emerging from this work is the understanding of participation as constitutive of socio-technical system change, rather than existing outside of it.⁴⁰x Chilvers et al. (n 31) 208. With this in mind, we note that the field of IA has also evolved over time to create such spaces of influence for public stakeholders. Although IA has in the past been criticized as a technocratic tool, contemporary IA practice tends to emphasize a participatory, inclusive approach that recognizes different types of knowledge and the importance of representing diverse societal views.⁴¹x Loreley Fortuny, ‘Impact assessment’, International Association for Impact Assessment (IAIA) (Web page, 2022) https://www.iaia.org/wiki-details.php?ID=4.

  II Social and Human Rights Impact Assessment: A Quick Primer

  This section and the next contain an overview of SIA and HRIA, to provide a foundation for our recommendation that such an approach be incorporated within EGD decision-making. We hope to summarize current understandings as succinctly as possible by drawing on key sources, while still doing justice to the topic and providing sufficient detail to the reader who is not familiar with IA practices.
  IA is a structured process for obtaining information about the biophysical, social, economic and/or institutional consequences of proposed actions, and considering its implications within decision-making.⁴²x Ibid. IA has been undertaken for many decades, and different forms apart from environmental impact assessment (EIA) have emerged to address different challenges (e.g. social, health, gender, cultural heritage).⁴³x Ibid.; Vanclay, ‘Assessment Family’ (n 30) 1550003-4. Among these, SIA has become the predominant means of managing the societal impacts of development.⁴⁴x Frank Vanclay, ‘International Principles for Social Impact Assessment’ (2003) 21(1) Impact Assessment and Project Appraisal 5-12 (‘International Principles’); Frank Vanclay et al., Social Impact Assessment: Guidance for Assessing and Managing the Social Impacts of Projects (International Association for Impact Assessment, April 2015) iv (‘IAIA SIA Guidance’); Ana Maria Esteves, Daniel Franks and Frank Vanclay, ‘Social impact assessment: the state of the art’ (2012) 30(10) Impact Assessment and Project Appraisal 34-35. SIA arose alongside EIA in the 1970s, but practices diverged over time as a result of recognition that social issues differ fundamentally from biophysical issues.⁴⁵x Frank Vanclay, ‘Reflections on social impact assessment in the 21st century’ (2020) 38(2) Impact Assessment and Project Appraisal 126 (‘Reflections’). However, because of the interconnectedness of issues, integrated assessments have now become standard practice in the private sector.⁴⁶x For example, in the form of environmental and social impact assessment (‘ESIA’) and environmental, social and health impact assessment (‘ESHIA’): Ibid.; IAIA SIA Guidance (n 44) iv. HRIA emerged more recently as a separate assessment process, in part due to the responsibility of businesses to respect human rights articulated in the UN Guiding Principles on Business and Human Rights.⁴⁷x Ana Maria Esteves et al., ‘Adapting social impact assessment to address a project’s human rights impacts and risks’ (2017) 67 Environmental Impact Assessment Review 73; Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, United Nations Office of the High Commissioner for Human Rights, 2011 (UN Doc HR/PUB/11/04). Human rights impacts can also be assessed in an integrated manner within an EIA or SIA.⁴⁸x Benefits of taking an integrated approach include opportunities to build on and utilize existing impact management structures, avoid stakeholder consultation fatigue and facilitate analysis of interrelated impacts; however, a stand-alone approach may avoid the sidelining of human rights issues, access to more extensive human rights expertize, and facilitate in-depth learning and capacity building amongst stakeholders: Nora Götzmann et al., Human Rights Impact Assessment: Guidance and Toolbox (The Danish Institute for Human Rights, 2016) 21.

  SIA is

  the processes of analysing, monitoring and managing the intended and unintended social consequences, both positive and negative, of planned interventions (policies, programs, plans, projects) and any social change processes invoked by those interventions.⁴⁹x Vanclay, ‘International Principles’ (n 44).

  Although SIA is used as an impact prediction mechanism and decision-making tool in regulatory processes to consider social impacts in advance of regulatory decisions, it is not a process that terminates once a particular activity is approved.⁵⁰x IAIA SIA Guidance (n 44). Rather, it is meant to contribute to the ongoing management of social issues throughout the whole project development cycle, from conception to post-closure.⁵¹x Ibid. Effective engagement of impacted communities in participatory processes of identification, assessment and management of social impacts is an essential feature of SIA, and reporting back to communities is ‘implicit in every step’.⁵²x Ibid.; Esteves et al. (n 47) 77. This has been reflected in the shift away from producing statements of social impact to creating social impact management plans (SIMPs).⁵³x Daniel Franks and Frank Vanclay, ‘Social impact management plans: innovation in corporate and public policy’ (2013) 43 Environmental Impact Assessment Review 40; Vanclay, ‘Assessment Family’ (n 30) 1550003-15.
  ‘Social impact’ within the SIA paradigm is conceived as being anything linked to a project that affects or concerns impacted individuals or stakeholder groups, directly or indirectly, whether experienced or felt in a perceptual (cognitive) sense, or a corporeal (bodily, physical) sense.⁵⁴x IAIA SIA Guidance (n 44) 2. Thus, almost anything can be a social impact so long as it is of value to individuals or groups. A broad array of social impacts have been identified, ranging from culture and way of life, community cohesion and stability, and impacts upon political systems, to environmental and health concerns, impacts upon personal and property rights, cost of living, and fears, aspirations and expectations.⁵⁵x Ibid. Furthermore, many social and environmental impacts lead to human rights impacts,⁵⁶x Ibid., iv. such as deprivation of access to food, water, health, education or work; risk to life or security of person; cruel, inhuman and degrading treatment; discrimination; and restrictions of movement.⁵⁷x Frank Vanclay, ‘Principles to gain a social licence to operate for green initiatives and biodiversity projects’ (2017) 29 Current Opinion in Environmental Sustainability 48, 51.
  Given the significance of these impacts, it is essential that decision makers have access to relevant and timely data from SIAs to inform their decisions, from the earliest stages of policymaking. Because overarching human rights principles of equality, non-discrimination, participation, inclusion, accountability and the rule of law must be observed throughout project development,⁵⁸x Ibid. it is now considered best practice for an SIA to fully consider human rights issues in all circumstances, except where a separate HRIA is being undertaken.⁵⁹x IAIA SIA Guidance (n 44). International human rights standards and principles⁶⁰x At a minimum, this includes: Universal Declaration of Human Rights; International Covenant on Civil and Political Right; International Covenant on Economic, Social and Cultural Rights; Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); Right to Organise and Collective Bargaining Convention, 1949 (No. 98); Forced Labour Convention, 1930 (No. 29); Abolition of Forced Labour Convention, 1957 (No. 105); Minimum Age Convention, 1973 (No. 138); Worst Forms of Child Labour Convention, 1999 (No. 182); Equal Remuneration Convention, 1951 (No. 100); Discrimination (Employment and Occupation) Convention, 1958 (No. 111). constitute the benchmark for assessment of human rights impacts,⁶¹x Götzmann et al. (n 48) 11. and as international human rights law evolves to recognize broader rights (e.g. substantive environmental rights),⁶²x See e.g., Human Rights Council, The human right to a clean, healthy and sustainable environment, UN Doc A/HRC/RES/48/13 (18 October 2021, adopted 8 October 2021); Elisabeth Lambert, The Environment and Human Rights: Introductory Report to the High-Level Conference Environmental Protection and Human Rights (Report, Steering Committee for Human Rights (CDDH), Council of Europe, 27 February 2020). what is considered to be an ‘assessable’ human rights impact will change accordingly.

  III Key Stages in Social and Human Rights Impact Assessment

  The SIA process consists of a number of sequential phases that entail learning, ongoing consultation and reassessment in light of new information.⁶³x IAIA SIA Guidance (n 44) 7. Typical steps in SIAs that account for human rights impacts are:⁶⁴x Esteves et al. (n 47) 78-84.

  1. Community profiling

  2. Scoping

  3. Baseline indicator selection

  4. Assessment

  5. Mitigation and enhancement strategies

  6. Updates to management plans

  The first phase focuses on understanding the issues as early as possible.⁶⁵x IAIA SIA Guidance (n 44) 7-8. A community profile is prepared to identify potentially affected communities and their assets, strengths, vulnerabilities, ability to cope with change and the human rights setting.⁶⁶x Esteves et al. (n 47) 78; IAIA SIA Guidance (n 44) 8. The differing needs, interests, values and aspirations of various subgroups (including a gender analysis), and their impact history (e.g. experiences with past projects, other historical events), are also assessed.⁶⁷x Ibid. Smyth & Vanclay’s Social Framework can be used to check whether various components affecting the well-being of a community have been adequately described. These include i) people's capacities, abilities and freedoms; ii) community and political context; iii) livelihood assets and activities; iv) culture and religion; v) infrastructure and services; vi) housing and business structures; vii) land and natural resources; and the viii) living environment: Eddie Smyth and Frank Vanclay, ‘The Social Framework for Projects: a conceptual but practical model to assist in assessing, planning and managing the social impacts of projects’ (2017) 35(1) Impact Assessment and Project Appraisal 65; Esteves et al. (n 47) 78. The community is informed about the project and how to become involved in the SIA, and inclusive participatory processes are devised.⁶⁸x IAIA SIA Guidance (n 44) 8.
  Scoping of potential social and human rights issues is then undertaken in an open process to ensure all possible impacts are considered.⁶⁹x Esteves et al. (n 47) 78, 80. This involves identifying: how stakeholder groups may experience these impacts; the duty-bearer and its capacity to protect human rights; social context; and unresolved or recurrent grievances.⁷⁰x Ibid. Thereafter, relevant baseline data for key social issues is determined, by selecting indicators that enable monitoring and measurement of change attributable to the activity. Adequate baseline data provide an essential reference point against which to measure impacts over time and assess the adequacy of mitigation measures.⁷¹x Ibid. A baseline in HRIA would be an evidence-based description of human rights enjoyment in practice, at a specific point in time.⁷²x The Danish Institute for Human Rights has proposed a framework for setting benchmarks and targets: Götzmann et al. (n 48) 53.
  During the assessment stage, social impacts (direct, indirect and cumulative) likely to result from the activity, together with project alternatives, are actually analysed.⁷³x Ibid.; Esteves et al. (n 47) 81. This includes careful consideration of people’s feelings and concerns, even if not substantiated by the evidence, as these can still affect the way that people relate to a project.⁷⁴x Ibid. Strategies are then developed and implemented to mitigate negative impacts, help communities cope with change, enhance project benefits and opportunities and provide for feedback and grievance mechanisms.⁷⁵x IAIA SIA Guidance (n 44) 8. An Impacts & Benefits Agreement, SIMP⁷⁶x It has been argued that SIMPs should feed into a company’s internal management systems, or be implemented as part of its overall planning process: IAIA SIA Guidance (n 44) 1. Similarly, we argue that SIMPs should be implemented as part of EGD planning processes and corporate management systems where public-private partnerships are utilized. and related management documents are produced, outlining strategies to monitor, report, evaluate, review and proactively respond to change during each phase of the activity.⁷⁷x IAIA SIA Guidance (n 44) 1, 8; Vanclay, ‘International Principles’ (n 44); Esteves, Franks and Vanclay (n 44); Daniel Franks et al., Leading Practice Strategies for addressing the Social Impacts of Resource Developments (Centre for Social Responsibility in Mining, Sustainable Minerals Institute, The University of Queensland, 2009); Franks and Vanclay (n 53); Esteves et al. (n 47) 84. Community participation in identifying mitigation strategies is considered to be part of mitigation itself, and impacted rights holders should be involved in developing strategies to address human rights impacts.⁷⁸x IAIA SIA Guidance (n 44) 8; Esteves et al. (n 47) 81.
  Apart from mitigating negative impacts, SIAs are increasingly focused upon enhancing the benefits of projects to impacted communities, in part due to recognition that minimizing harm will not necessarily increase public acceptance.⁷⁹x IAIA SIA Guidance (n 44) iv. There is increasing emphasis on ‘sustainable social development’, i.e. a participatory process that leads to beneficial social development.⁸⁰x Ibid., 11. Social development focuses on fulfilling the basic needs of people, achieving a fair distribution of wealth gained as a result of economic growth, building human and social capital, expanding the scope of opportunities of individuals and communities, promoting social justice and equal opportunities, and eradicating poverty and illiteracy.⁸¹x Ana Maria Esteves, ‘Evaluating community investments in the mining sector using multicriteria decision analysis to integrate SIA with business planning’ (2008) 28(4-5) Environmental Impact Assessment Review 338, in Ana Maria Esteves and Frank Vanclay, ‘Social development needs analysis as a tool for SIA to guide corporate-community investment: applications in the minerals industry’ (2009) 29 Environmental Impact Assessment Review 137, 139.
  Ensuring greater benefits to communities, e.g. through infrastructure development, social investment funding, local employment, training and procurement opportunities, may increase the legitimacy of projects.⁸²x IAIA SIA Guidance (n 44) iv. A Social Development Needs Analysis (SDNA) conducted within the context of SIA can assist in allocating limited resources to community investments, and help reconcile business and community interests.⁸³x Esteves and Vanclay (n 81) 137. SDNAs ascertain the priority social issues to address in order to contribute to sustainable development of the community.⁸⁴x Ibid., 141. SDNAs may be relevant to EGD decision-making given the Social Climate Fund’s provisions to address the social and distributional challenges of the green transition.

• D A New Evidentiary Approach to European Green Deal Decision-Making

  Although the EGD is positioned as an economic growth strategy with ambitious climate targets, requirements of fairness and justice dictate the need to consider impacts beyond economic or climatic ones. The EGD does not call upon decision makers to simply balance climate targets against socio-economic impacts, although to date, these appear to be their primary focus. In evidence-based decision-making, it is crucial to rely upon the correct sources of data. Where there are questions about whether a measure is ‘fair’ or ‘just’, the data cannot be drawn from economic, environmental or public health sources alone. Evidence about other types of impacts is also required.⁸⁵x A comprehensive review of potential social and human rights impacts arising out of the EGD is a critical issue, but one that is beyond the scope of this article. For example, the EGD contemplates a transition to ‘green jobs’.⁸⁶x European Commission, ‘Communication from the Commission to the European Parliament, The European Council, The Council, The European Economic and Social Committee and the Committee of the Regions: Forging a climate-resilient Europe – the new EU Strategy on Adaptation to Climate Change’ (Brussels, COM(2021) 82 final, 24 February 2021). A ‘just’ approach would require consideration of age-based discriminatory impacts upon workers who will be unable to transition into new employment, including impacts upon their sense of dignity and purpose as contributing members of society. To give another example, the Supreme Court of Norway stripped wind farms of their operating licences in 2021 due to violations of the cultural and land use rights of the Sámi.⁸⁷x Statnett SF v. Sør-Fosen sijte, Nord-Fosen siida and Fosen Vind DA; Fosen Vind DA v. Sør-Fosen sijte and Nord-Fosen siida; Sør-Fosen sijte v. Fosen Vind DA and the State (Ministry of Petroleum and Energy, intervener) [Supreme Court of Norway] HR-2021-1975-S (case nos. 20-143891SIV-HRET, 20-143892-SIV-HRET and 20-143893SIV-HRET), 11 October 2021. Given that these groups also inhabit Finland and Sweden, how will potential impacts on Indigenous rights be assessed? The EGD also relies heavily upon minerals and other raw materials sourced from outside Europe (e.g. nearly half of the world’s solar-grade polysilicon is sourced from the Uyghur region).⁸⁸x Laura Murphy and Nyrola Elimä, ‘In broad daylight: Uyghur forced labour and global solar supply chains’, Sheffield Hallam University (Web page, 2022) www.shu.ac.uk/helena-kennedy-centre-international-justice/research-and-projects/all-projects/in-broad-daylight. How will human rights impacts (e.g. forced labour, killings, threats, intimidation, land dispossession, dangerous working conditions) in supply chains that are critical to the European green transition be rationalized? Does a ‘just’ transition include those beyond European borders?
  We argue that critical data about such impacts can be obtained through comprehensive SIA and HRIA, which ought to inform EGD decision-making. This would mean mapping out the stages of SIA and HRIA onto key decision-making stages in the rollout of the EGD, from policymaking to legislative enactment through to implementation on a sector, project or community level. The EC’s decision-making is already informed by ex ante IAs that assess policy or regulatory impacts and territorial IAs that identify potential disparities and differential spatial impacts of European policy at national, regional and local levels.⁸⁹x Vanclay, ‘Assessment Family’ (n 30). IA forms a key part of the Commission’s Better Regulation agenda to design EU policies and laws that achieve their objectives efficiently and effectively.⁹⁰x European Commission, Impact Assessments (Web page, 2022) https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/impact-assessments_en#need-for-impact-assessments. IA is required for Commission initiatives that are likely to have significant economic, environmental or social impacts or which entail significant spending. Thus, it is required for legislative and non-legislative initiatives, delegated acts and implementing measures.⁹¹x European Commission, Better Regulation Guidelines (Commission Staff Working Document, 3 November 2021) 30. See also The Evaluation Partnership (TEP) and Centre for European Policy Studies (CEPS), Study on Social Impact Assessment as a tool for mainstreaming social inclusion and social protection concerns in public policy in EU Member States (Study conducted on behalf of European Commission, June 2010).
  The Better Regulation Guidelines and Toolbox contain guidance for the Commission on how to conduct IA.⁹²x Ibid.; European Commission, Better Regulation Toolbox (November 2021). The Toolbox highlights reliable evidence as a ‘cornerstone of better regulation’ and describes evidence as

  data, information, and knowledge from multiple sources, including quantitative data such as statistics and measurements, qualitative data such as opinions, stakeholder input, conclusions of evaluations, as well as scientific and expert advice.⁹³x Ibid., 20.

  A broad array of impacts can be assessed, including environmental, socio-economic and cultural impacts, and impacts to property rights and fundamental rights.⁹⁴x Ibid., 138. However, not all impacts for all possible stakeholders need to be examined. Instead, the most relevant ones are selected in accordance with the principle of proportionate analysis, meaning the scope and depth of analysis should always be proportionate and consistent with the importance and type of initiative and the nature and magnitude of expected impacts.⁹⁵x Ibid., 81. An independent body, the Regulatory Scrutiny Board, scrutinizes the quality of the IA, fitness checks and selected evaluations.⁹⁶x Ibid., 14. IA informs decision-making and is completed before the Commission makes decisions, but the Commission may take a different approach to the recommendations in the IA report.⁹⁷x Ibid., 36. The Commission also has a duty to carry out broad consultations with interested parties to ensure that EU action is ‘coherent and transparent’, and consulting with stakeholders is an important means of collecting evidence to support policymaking.⁹⁸x Ibid., 13. The entry point for public consultation and feedback is through a call for evidence.
  IA has been conducted at various stages in the development of the EGD. However, these were not comprehensive and did not fully utilize the potential of SIA and HRIA. An IA was performed prior to the launch of the European Climate Law,⁹⁹x European Commission, ‘Commission Staff Working Document Impact Assessment, Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Stepping up Europe’s 2030 climate ambition Investing in a climate-neutral future for the benefit of our people’ (Brussels, SWD/2020/176 final, 17 September 2020) (‘Commission IA’). and included public consultation and skimming of the potential economic and social impacts upon citizens, focusing largely on employment impacts, impacts on households and the public health benefits of the proposed measures. However, it did not consider other impacts, such as equality, access to food or the rights of children. Human rights concerns, such as privacy and the use of technology within the EGD, were also not taken into account.¹⁰⁰x See also Trilateral Research, ‘Achieving the Green Deal ambitions with just and equitable sustainable solutions’ (Web page, 2022) www.trilateralresearch.com/achieving-the-green-deal-ambitions-with-just-and-equitable-sustainable-solutions/. As a result, the EU was called upon to “adopt a broader and more holistic concept of sustainability and a just transition centered around care, solidarity, equality, and nature protection”.¹⁰¹x For a call to rethink economic growth to include gender inequality, see Rose Heffernan et al., A Feminist European Green Deal: Towards an Ecological and Gender Just Transition (Report, Friedrich-Ebert-Stiftung (FES), 2021) 11.
  During the initial legislative procedure for the European Climate Law, an IA was also performed and environmental and economic impacts were assessed, paying specific attention to employment issues and increased energy costs for households (public consultation generated about 4,000 responses).¹⁰²x Commission IA (n 99). The IA limited its social considerations to an economic focus, and made policy recommendations to address distributional impacts upon households (e.g. increased transfer payments, subsidies for energy efficiency measures or progressive energy tax rates).¹⁰³x Ibid. The IA gave little consideration to human rights impacts or other non-economic social impacts, such as changes in lifestyle in the context of food policy.¹⁰⁴x CLIMACT and Ecologic, Analysing The Impact Assessment On Raising The EU 2030 Climate Target (Briefing, 28 September 2020). Prior to the legislative proposals under Fit for 55, two rounds of public consultation also occurred. The EC invited Member States, industry representatives from the private sector, NGOs, research and academic institutions, trade unions and citizens to provide their input on the proposals, including on “possible emissions trading for the sectors of buildings and road transport, including on its social consequences”.¹⁰⁵x Commission IA (n 99) 6.
  IA has also been performed for other proposals, such as the proposal for amending the Emission Trade Scheme (ETS) Directive (generating 262 responses during public consultations).¹⁰⁶x European Commission, Climate change – updating the EU emissions trading system (ETS) (Web page, 2022) https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12660-Climate-change-updating-the-EU-emissions-trading-system-ETS-/feedback_en?p_id=11859153. The focus of the IA was on economic impacts, taking into account the effects for low-income households.¹⁰⁷x Commission IA (n 99) 8. However, no specific IA was conducted in relation to the Social Climate Fund, which is meant to support vulnerable households and mitigate social and employment impacts.¹⁰⁸x European Commission, COM(2021) 568: Proposal for a regulation of the European Parliament and of the Council establishing a Social Climate Fund (Document 52021PC0568). The Fund’s impacts upon fundamental rights were regarded in a narrow manner. According to the Commission’s proposal, the Fund would create more equality, as it would lead to

  a positive effect on the preservation and development of Union fundamental rights as well as principles of inclusion and non-discrimination, assuming that the Member States request and receive support in related areas that may be financed under the Fund.¹⁰⁹x Ibid., [3].

  Gender-based economic effects were considered, and the working document acknowledges that female single parents will likely experience greater negative impacts from the strategy than other families. However, during the legislative process, the European Social and Economic Committee (ESEC) expressed regret that the Commission did not analyse the impact of the Fit for 55 package on individual Member States, nor on different sectors. The ESEC underlined in its advice that a specific IA of the Social Climate Fund proposal should have been carried out.¹¹⁰x Ibid. See also Charlie Weimers, ‘Lack of a specific impact assessment for the Social Climate Fund’ (Question for written answer E-005497/2021 to the Commission, Parliamentary questions, 9 December 2021) www.europarl.europa.eu/doceo/document/E-9-2021-005497_EN.html.
  It appears that human rights impacts and other non-economic social impacts have not yet received any meaningful consideration in the rollout of the EGD, despite the fact that the Better Regulation Guidelines and Toolbox provide for such assessment. A discussion of how the principle of proportionate analysis was applied to determine which impacts to assess is beyond the scope of this article, but would be a worthwhile subject of further inquiry. Nevertheless, we argue that the approach taken thus far by the Commission represents a significant lost opportunity to properly consider the broader impacts of the EGD and to tailor its approach accordingly. This has resulted in a number of criticisms directed at the EGD, and may present the potential for future conflict with local communities as it is implemented over time. Economic solutions will likely prove inadequate to satisfying societal demands for a more comprehensive approach to addressing the social and human rights impacts of the transition. Moreover, citizens may perceive what IA has been conducted in relation to social impacts as ‘window dressing’ if it is not comprehensive enough. Recent changes around business and human rights due diligence might increase the relevance of SIAs focused on human rights impacts in Europe in coming years,¹¹¹x Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937, COM/2022/71 final. in any event, particularly within the context of the EGD’s public-private partnerships. A more comprehensive and systematic approach to the social and human rights impacts of the EGD may mitigate potential conflicts with communities and ensure better allocation of limited resources to community investments and social development initiatives.

• E Conclusion

  When data are complex, as is the case with regard to climate and sustainability initiatives, ensuring a high degree of inclusivity for citizens within the decision-making process can be challenging. Yet, being part of the decision-making process can increase the perceived legitimacy and social acceptance of a policy, even if citizens are negatively affected in some ways. In order to achieve the aims of the EGD, it is indeed important that ‘no one is left behind’. While we applaud the efforts to ensure a ‘just’ transition, we also argue that involvement of citizens in the appropriate manner is crucial to the EGD’s environmental and social success. Otherwise, it runs the risk of exacerbating pre-existing economic and social inequalities and creating new ones.
  When considering the question of how to ensure a ‘just’ transition, having in mind that the EGD relies heavily upon complex technical data, we looked for participatory approaches that would engage citizens in the process. Fortunately, much is known and understood about the role of communities in environmental decision-making, particularly as a result of major resource project developments. In this article, we highlighted the participatory nature of SIA and HRIA, and point to SIA and HRIA as important tools in the creation of a ‘just’ transition for citizens. We argue that comprehensive SIA and HRIA should be included in all of the key phases of decision-making in the development and implementation of the EGD, at the European, national and local levels. Doing so will allow for more balanced and inclusive decision-making.
  This approach fits with new perspectives on energy transition governance, as it is responsive rather than based on eliciting and ‘fixing’ public views in order to shape a vision of the transition that is then centrally managed.¹¹²x Chilvers et al. (n 31) 209. Moreover, such an approach overcomes the criticism that evidence-based policy may result in dramatic oversimplification, neglect of other relevant worldviews and flawed policy prescriptions.¹¹³x Andrea Saltelli and Mario Giampietro, ‘What is wrong with evidence based policy, and how can it be improved?’ (2017) 91 Futures 62. Instead, SIA and HRIA may contain elements of ‘quantitative story-telling’ that represent different lenses through which the problem is perceived.¹¹⁴x Ibid.

Noten

• 1 European Commission, ‘Communication from the Commission to the European Parliament, The European Council, The Council, The European Economic and Social Committee and the Committee of the Regions: The European Green Deal’ (Brussels, COM(2019) 640 final, 11 December 2019) 2 (‘EC Communication EGD 2019’).

• 2 Ibid., 4.

• 3 Alfons Pérez, Green Deals in a Time of Pandemics: The Future will be Contested Now (Libros en Acción, 2021) 39, 54, 120; Fiona Harvey and Jennifer Rankin, ‘What is the European Green Deal and will it really cost € 1tn?’, The Guardian (Web page, 9 March 2020), www.theguardian.com/world/2020/mar/09/what-is-the-european-green-deal-and-will-it-really-cost-1tn; Alfons Pérez, ‘A Green New Deal for whom?’, openDemocracy (Web page, 23 April 2021), www.opendemocracy.net/en/oureconomy/green-new-deal-whom/.

• 4 Ibid.

• 5 Susana Borrás and Jakob Edler, ‘Introduction: on governance, systems and change’ in Susana Borrás (ed), The Governance of Socio-Technical Systems: Explaining Change (Edward Elgar, 2014) 1.

• 6 EC Communication EGD (n 1).

• 7 Ibid., 4.

• 8 For an interesting discussion of how technocratic politics may undermine democratic legitimacy, see Eri Bertsou and Daniele Caramani, The Technocratic Challenge to Democracy (Routledge, 2020).

• 9 European Commission, ‘Communication from the Commission to the European Parliament, The European Council, The Council, The European Economic and Social Committee and the Committee of the Regions: Sustainable Europe Investment Plan, European Green Deal Investment Plan’ (Brussels, COM(2020) 21 final, 14 January 2021) (‘EC Communication Investment’).

• 10 Ibid., 3.

• 11 Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality and amending Regulations (EC) No 401/2009 and (EU) 2018/1999 (‘European Climate Law’).

• 12 Matters arising out of the European Climate Law may be adjudicated before the Court of Justice of the European Union.

• 13 European Commission, ‘European Green Deal: Commission proposes transformation of EU economy and society to meet climate ambitions’ (Press Release, 14 July 2021). Proposals within this package include: revision of the EU Emissions Trading System (ETS), including maritime, aviation and CORSIA as well as a proposal for ETS as own resource Carbon Border Adjustment Mechanism (CBAM) and a proposal for CBAM as own resource Effort Sharing Regulation (ESR); revision of the Energy Tax Directive; amendment to the Renewable Energy Directive to implement the ambition of the new 2030 climate target (RED); amendment of the Energy Efficiency Directive to implement the ambition of the new 2030 climate target (EED); revision of the Regulation on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry (LULUCF); revision of the Directive on deployment of alternative fuels infrastructure; and revision of the Regulation setting CO₂ emission performance standards for new passenger cars and for new light commercial vehicles: European Commission, ‘Communication from the Commission to the European Parliament, The European Council, The Council, The European Economic and Social Committee and the Committee of the Regions Empty: “Fit for 55”: delivering the EU’s 2030 Climate Target on the way to climate neutrality’ (Brussels, COM(2021) 550 final, 14 July 2021).

• 14 See, e.g., the debate in March 2022: Fit for 55 package a) Revision of Directive (EU) 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading to implement the ambition of the new 2030 climate target and related proposals (ETS) b) Revision of Regulation (EU) 2018/842 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 (ESR) c) Revision of Regulation (EU) 2018/841 on greenhouse gas emissions and removals from land use, land use change and forestry (LULUCF) d) Revision of Regulation (EU) 2019/631 setting CO2 emission performance standards for new passenger cars and for new light commercial vehicles e) Regulation establishing a Social Climate Fund Policy debate.

• 15 See, e.g., Xavier Le Den, Sébastien Bruyère et al., Feasibility and Scoping Study for the Commission to Become Climate Neutral by 2030 (Final Report, 2 September 2020).

• 16 EC Communication Investment (n 9).

• 17 Regulation (EC) No 401/2009 of the European Parliament and of the Council of 23 April 2009 on the European Environment Agency and the European Environment Information and Observation Network [2009] OJ L 126, 13-22.

• 18 Ibid., Art. 2.

• 19 EC Communication EGD (n 1) 4.

• 20 OED Online, Oxford English Dictionary (Oxford University Press, 2022).

• 21 Ross C. Brownson, Jamie F. Chriqui, and Katherine A. Stamatakis, ‘Understanding Evidence-Based Public Health Policy’ (2009) 99(9) American Journal of Public Health 1576.

• 22 Ibid.

• 23 On this point, see also Josephine van Zeben, ‘The European Green Deal: the future of a polycentric Europe?’ (2022) 26(5-6) European Law Journal 300.

• 24 The European Climate Pact is a platform for creating a network of engaged citizens to discuss climate-related topics, exchange ideas and collectively develop and implement climate solutions: European Union, European Climate Pact (Web page, 2022) https://europa.eu/climate-pact/index_en. The New European Bauhaus allows community partners to develop cultural and creative dimensions to the EGD: European Union, New European Bauhaus (Web page, 2022) https://europa.eu/new-european-bauhaus/index_en.

• 25 Francesca Colli, ‘A just transition for the citizens? Ensuring public participation in the European Green Deal’ (2021) 68 European Policy Brief 2.

• 26 European Commission, The Just Transition Fund (Web page, 2022) https://ec.europa.eu/info/strategy/priorities-2019-2024/european-green-deal/finance-and-green-deal/just-transition-mechanism/just-transition-funding-sources_en.

• 27 EC Communication Investment (n 9).

• 28 Ruven C. Fleming and Romain Mauger, ‘Green and just? An update on the “European Green Deal”’ (2021) 18(1) Journal for European Environmental & Planning Law 164.

• 29 Ibid.

• 30 Frank Vanclay, ‘Changes in the impact assessment family 2003-2014: implications for considering achievements, gaps and future directions’ (2015) 17(1) Journal of Environmental Assessment Policy and Management 1550003 (‘Assessment Family’); Asmaa Khadim, ‘Environmental rights and extractive industries in Canada and Argentina: a comparative constitutional analysis’ (PhD Thesis, The University of Queensland, 2021).

• 31 Jason Chilvers, Helen Pallett and Tom Hargreaves, ‘Ecologies of participation in socio-technical change: the case of energy system transitions’ (2018) 42 Energy Research & Social Science 199.

• 32 Toyah Rodhouse et al., ‘Public agency and responsibility in energy governance: a Q study on diverse imagined publics in the Dutch heat transition’ (2021) 77 Energy Research & Social Science 102046.

• 33 Carolyn M. Hendricks, ‘On inclusion and network governance: the democratic disconnect of Dutch energy transitions’ (2008) 86(4) Public Administration 1009 in Rodhouse et al. (n 32).

• 34 Rodhouse et al. (n 32). For the heterogeneous perspectives of community engagement professionals, see also Elisabeth van de Grift, Eefje Cuppen and Shannon Spruit, ‘Co-creation, control or compliance? How Dutch community engagement professionals view their work’ (2020) 60 Energy Research & Social Science 101323.

• 35 Ibid.

• 36 Ibid.

• 37 Jonathan A. Obar, ‘Closing the technocratic divide? Activist intermediaries, digital form letters, and public involvement in FCC policy making’ (2016) 10 International Journal of Communication 5865, 5868.

• 38 Chilvers et al. (n 31).

• 39 See, e.g., Eefje Cuppen et al., ‘Participatory multi-modelling as the creation of a boundary object ecology: the case of future energy infrastructures in the Rotterdam Port Industrial Cluster’ (2020) 16 Sustainability Science 901.

• 40 Chilvers et al. (n 31) 208.

• 41 Loreley Fortuny, ‘Impact assessment’, International Association for Impact Assessment (IAIA) (Web page, 2022) https://www.iaia.org/wiki-details.php?ID=4.

• 42 Ibid.

• 43 Ibid.; Vanclay, ‘Assessment Family’ (n 30) 1550003-4.

• 44 Frank Vanclay, ‘International Principles for Social Impact Assessment’ (2003) 21(1) Impact Assessment and Project Appraisal 5-12 (‘International Principles’); Frank Vanclay et al., Social Impact Assessment: Guidance for Assessing and Managing the Social Impacts of Projects (International Association for Impact Assessment, April 2015) iv (‘IAIA SIA Guidance’); Ana Maria Esteves, Daniel Franks and Frank Vanclay, ‘Social impact assessment: the state of the art’ (2012) 30(10) Impact Assessment and Project Appraisal 34-35.

• 45 Frank Vanclay, ‘Reflections on social impact assessment in the 21st century’ (2020) 38(2) Impact Assessment and Project Appraisal 126 (‘Reflections’).

• 46 For example, in the form of environmental and social impact assessment (‘ESIA’) and environmental, social and health impact assessment (‘ESHIA’): Ibid.; IAIA SIA Guidance (n 44) iv.

• 47 Ana Maria Esteves et al., ‘Adapting social impact assessment to address a project’s human rights impacts and risks’ (2017) 67 Environmental Impact Assessment Review 73; Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework, United Nations Office of the High Commissioner for Human Rights, 2011 (UN Doc HR/PUB/11/04).

• 48 Benefits of taking an integrated approach include opportunities to build on and utilize existing impact management structures, avoid stakeholder consultation fatigue and facilitate analysis of interrelated impacts; however, a stand-alone approach may avoid the sidelining of human rights issues, access to more extensive human rights expertize, and facilitate in-depth learning and capacity building amongst stakeholders: Nora Götzmann et al., Human Rights Impact Assessment: Guidance and Toolbox (The Danish Institute for Human Rights, 2016) 21.

• 49 Vanclay, ‘International Principles’ (n 44).

• 50 IAIA SIA Guidance (n 44).

• 51 Ibid.

• 52 Ibid.; Esteves et al. (n 47) 77.

• 53 Daniel Franks and Frank Vanclay, ‘Social impact management plans: innovation in corporate and public policy’ (2013) 43 Environmental Impact Assessment Review 40; Vanclay, ‘Assessment Family’ (n 30) 1550003-15.

• 54 IAIA SIA Guidance (n 44) 2.

• 55 Ibid.

• 56 Ibid., iv.

• 57 Frank Vanclay, ‘Principles to gain a social licence to operate for green initiatives and biodiversity projects’ (2017) 29 Current Opinion in Environmental Sustainability 48, 51.

• 58 Ibid.

• 59 IAIA SIA Guidance (n 44).

• 60 At a minimum, this includes: Universal Declaration of Human Rights; International Covenant on Civil and Political Right; International Covenant on Economic, Social and Cultural Rights; Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); Right to Organise and Collective Bargaining Convention, 1949 (No. 98); Forced Labour Convention, 1930 (No. 29); Abolition of Forced Labour Convention, 1957 (No. 105); Minimum Age Convention, 1973 (No. 138); Worst Forms of Child Labour Convention, 1999 (No. 182); Equal Remuneration Convention, 1951 (No. 100); Discrimination (Employment and Occupation) Convention, 1958 (No. 111).

• 61 Götzmann et al. (n 48) 11.

• 62 See e.g., Human Rights Council, The human right to a clean, healthy and sustainable environment, UN Doc A/HRC/RES/48/13 (18 October 2021, adopted 8 October 2021); Elisabeth Lambert, The Environment and Human Rights: Introductory Report to the High-Level Conference Environmental Protection and Human Rights (Report, Steering Committee for Human Rights (CDDH), Council of Europe, 27 February 2020).

• 63 IAIA SIA Guidance (n 44) 7.

• 64 Esteves et al. (n 47) 78-84.

• 65 IAIA SIA Guidance (n 44) 7-8.

• 66 Esteves et al. (n 47) 78; IAIA SIA Guidance (n 44) 8.

• 67 Ibid. Smyth & Vanclay’s Social Framework can be used to check whether various components affecting the well-being of a community have been adequately described. These include i) people's capacities, abilities and freedoms; ii) community and political context; iii) livelihood assets and activities; iv) culture and religion; v) infrastructure and services; vi) housing and business structures; vii) land and natural resources; and the viii) living environment: Eddie Smyth and Frank Vanclay, ‘The Social Framework for Projects: a conceptual but practical model to assist in assessing, planning and managing the social impacts of projects’ (2017) 35(1) Impact Assessment and Project Appraisal 65; Esteves et al. (n 47) 78.

• 68 IAIA SIA Guidance (n 44) 8.

• 69 Esteves et al. (n 47) 78, 80.

• 70 Ibid.

• 71 Ibid.

• 72 The Danish Institute for Human Rights has proposed a framework for setting benchmarks and targets: Götzmann et al. (n 48) 53.

• 73 Ibid.; Esteves et al. (n 47) 81.

• 74 Ibid.

• 75 IAIA SIA Guidance (n 44) 8.

• 76 It has been argued that SIMPs should feed into a company’s internal management systems, or be implemented as part of its overall planning process: IAIA SIA Guidance (n 44) 1. Similarly, we argue that SIMPs should be implemented as part of EGD planning processes and corporate management systems where public-private partnerships are utilized.

• 77 IAIA SIA Guidance (n 44) 1, 8; Vanclay, ‘International Principles’ (n 44); Esteves, Franks and Vanclay (n 44); Daniel Franks et al., Leading Practice Strategies for addressing the Social Impacts of Resource Developments (Centre for Social Responsibility in Mining, Sustainable Minerals Institute, The University of Queensland, 2009); Franks and Vanclay (n 53); Esteves et al. (n 47) 84.

• 78 IAIA SIA Guidance (n 44) 8; Esteves et al. (n 47) 81.

• 79 IAIA SIA Guidance (n 44) iv.

• 80 Ibid., 11.

• 81 Ana Maria Esteves, ‘Evaluating community investments in the mining sector using multicriteria decision analysis to integrate SIA with business planning’ (2008) 28(4-5) Environmental Impact Assessment Review 338, in Ana Maria Esteves and Frank Vanclay, ‘Social development needs analysis as a tool for SIA to guide corporate-community investment: applications in the minerals industry’ (2009) 29 Environmental Impact Assessment Review 137, 139.

• 82 IAIA SIA Guidance (n 44) iv.

• 83 Esteves and Vanclay (n 81) 137.

• 84 Ibid., 141.

• 85 A comprehensive review of potential social and human rights impacts arising out of the EGD is a critical issue, but one that is beyond the scope of this article.

• 86 European Commission, ‘Communication from the Commission to the European Parliament, The European Council, The Council, The European Economic and Social Committee and the Committee of the Regions: Forging a climate-resilient Europe – the new EU Strategy on Adaptation to Climate Change’ (Brussels, COM(2021) 82 final, 24 February 2021).

• 87 Statnett SF v. Sør-Fosen sijte, Nord-Fosen siida and Fosen Vind DA; Fosen Vind DA v. Sør-Fosen sijte and Nord-Fosen siida; Sør-Fosen sijte v. Fosen Vind DA and the State (Ministry of Petroleum and Energy, intervener) [Supreme Court of Norway] HR-2021-1975-S (case nos. 20-143891SIV-HRET, 20-143892-SIV-HRET and 20-143893SIV-HRET), 11 October 2021.

• 88 Laura Murphy and Nyrola Elimä, ‘In broad daylight: Uyghur forced labour and global solar supply chains’, Sheffield Hallam University (Web page, 2022) www.shu.ac.uk/helena-kennedy-centre-international-justice/research-and-projects/all-projects/in-broad-daylight.

• 89 Vanclay, ‘Assessment Family’ (n 30).

• 90 European Commission, Impact Assessments (Web page, 2022) https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/impact-assessments_en#need-for-impact-assessments.

• 91 European Commission, Better Regulation Guidelines (Commission Staff Working Document, 3 November 2021) 30. See also The Evaluation Partnership (TEP) and Centre for European Policy Studies (CEPS), Study on Social Impact Assessment as a tool for mainstreaming social inclusion and social protection concerns in public policy in EU Member States (Study conducted on behalf of European Commission, June 2010).

• 92 Ibid.; European Commission, Better Regulation Toolbox (November 2021).

• 93 Ibid., 20.

• 94 Ibid., 138.

• 95 Ibid., 81.

• 96 Ibid., 14.

• 97 Ibid., 36.

• 98 Ibid., 13. The entry point for public consultation and feedback is through a call for evidence.

• 99 European Commission, ‘Commission Staff Working Document Impact Assessment, Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions Stepping up Europe’s 2030 climate ambition Investing in a climate-neutral future for the benefit of our people’ (Brussels, SWD/2020/176 final, 17 September 2020) (‘Commission IA’).

• 100 See also Trilateral Research, ‘Achieving the Green Deal ambitions with just and equitable sustainable solutions’ (Web page, 2022) www.trilateralresearch.com/achieving-the-green-deal-ambitions-with-just-and-equitable-sustainable-solutions/.

• 101 For a call to rethink economic growth to include gender inequality, see Rose Heffernan et al., A Feminist European Green Deal: Towards an Ecological and Gender Just Transition (Report, Friedrich-Ebert-Stiftung (FES), 2021) 11.

• 102 Commission IA (n 99).

• 103 Ibid.

• 104 CLIMACT and Ecologic, Analysing The Impact Assessment On Raising The EU 2030 Climate Target (Briefing, 28 September 2020).

• 105 Commission IA (n 99) 6.

• 106 European Commission, Climate change – updating the EU emissions trading system (ETS) (Web page, 2022) https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12660-Climate-change-updating-the-EU-emissions-trading-system-ETS-/feedback_en?p_id=11859153.

• 107 Commission IA (n 99) 8.

• 108 European Commission, COM(2021) 568: Proposal for a regulation of the European Parliament and of the Council establishing a Social Climate Fund (Document 52021PC0568).

• 109 Ibid., [3].

• 110 Ibid. See also Charlie Weimers, ‘Lack of a specific impact assessment for the Social Climate Fund’ (Question for written answer E-005497/2021 to the Commission, Parliamentary questions, 9 December 2021) www.europarl.europa.eu/doceo/document/E-9-2021-005497_EN.html.

• 111 Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence and amending Directive (EU) 2019/1937, COM/2022/71 final.

• 112 Chilvers et al. (n 31) 209.

• 113 Andrea Saltelli and Mario Giampietro, ‘What is wrong with evidence based policy, and how can it be improved?’ (2017) 91 Futures 62.

• 114 Ibid.