EIA - Asian Judges Network on Environment

Asian Network of Environmental Judges
Asian Development Bank
December 2013
Peter King
Senior Policy Advisor
Institute for Global Environmental Strategies (IGES)
Head Asian Environmental Compliance and Enforcement Network (AECEN)
Brief overview of impact assessments in:
United States
EU (EIA Directive)
Value of EIAs in an international context
EIA related training
Evaluation of EIA enforcement
Concluding recommendations
1969 National Environmental Policy Act (NEPA):
◦ First legislation to provide a robust framework for addressing
several environmental concerns simultaneously;
◦ EA/EIS process: The simpler EA usually has to be carried out
within a 3-month time frame, and the more detailed EIS usually
is required to complete within maximum 12 months (with
EPA and
other agency
Notice of
Final EIA
Review and
Draft EIS
Record of
(Stampe 2009)
◦ Purpose
 To decide whether a detailed environment impact statement
(EIS) is necessary or not;
 To integrate generation and dissemination of environmental
 Foster collaboration among diverse public and private actors and
stakeholders which characterize major, environmentally
controversial decisions.
 Environmental assessment should be applied not only to project
approval action but action on legislative and other such
proposals (SEA), and EIS should be prepared by federal
 Number of EIS since 2004: 4,842
EIS is more cumbersome to produce than simple
environment assessment;
◦ Key enforcement issue - is due procedure followed or are
agencies trying to negate possible impacts to avoid EIS?
EIA is required for 13 types of projects
(MOEJ 2012:3)
For class 1 projects, an EIA is mandatory, class 2 projects are optional, and the
category “others” does not require EIA.
Proposed projects are screened to determine whether EIA is required, and
normally scale plays a large determining role in deciding on necessity of EIA.
For class 2 projects, other factors such as location and proximity to
environmentally and socially sensitive areas also play a role and decisions are
made on a case-by-case basis (MOEJ 2012).
Some amendments of Japanese EIA Law:
 Obligation to hold a public session at the stage of the assessment method
determination; (earlier stage) as well as access to information on internet;
 Stipulation of the procedure to have opinions from Minister of the Environment
in the selection of evaluation items;
 Stipulation of the procedure to gain advice from the Minister of the
Environment when a prefectural governor etc. is the issuer of the license etc.;
 Enabling direct submission of opinion from the designated cities to the project
 Establishment of Primary Environmental Impact Consideration (PEIC) and
Impact Mitigation Reporting (IMR);
 Key enforcement issue - moving from target clearance type of assessment to
“best effort” type of assessment (for increased environmental performance).
PEIC: alternative plans on a project location, scale and
others are compared, and opinions of citizens, experts,
local governments and others are considered in regard
to possible impacts on living environment, natural
environment and others caused by the project (class 1
mandatory/class 2 voluntary)
◦ Enables more earnest consideration of alternative plans before
project is commenced, reducing subsequent compliance needs;
IMR: After a project has been implemented, the
proponent compiles and publishes a follow-up survey,
along with the measures for protecting the environment
to cope with the conditions identified during the survey
and the progress of the measures taken.
◦ discloses the progress of the measures taken to the citizens who are
interested, and complements the substance of measures taken by
having opinions provided from the Minister of the Environment
Detailed EIA
Preliminary EIA
Screening and
consultation with
Preparation of Detailed Assessment
Brief by review panel appointed by
Project proponent prepares TOR
after informal consultation with
assessment by
project proponent
Federal (or state)
level review by
(Stærdahl, Jens, Zuriati Zakaria et. al 2004:5)
Public Comments on
Preparation of Detailed
Assessment by project proponent
Public comments on
Report review by
Review Panel
Project implementation and
Environmental Impact Assessment Order 1987
formally inscribed in 1988;
Bodies responsible for EIA are the State Planning
and Development Committee and the National
Industrial Development Committee
In Malaysia 19 project classes are required to
undertake an EIA under the EIA Order 1987
EIA in Malaysia was a federal government
responsibility, but since 1990s devolved to the
EIA training of staff is a responsibility of
employer/project initiator;
Integration of Environmental Impact
Assessment and Health Impact Assessment;
Starting works without an EIA report raised to
RM50,000 from RM20,000 (US$16,600);
Establish specialized Environmental Court
(jurisdictions include more than 38
environment-related laws such as Street,
Drainage and Building Act, Local Government
Act as well as 17 Regulations overseeing
environmental quality).
Mismatch of scale: 1987 EIA regulations are
federal, but environmental issues are now under
State jurisdiction;
Participation ad-hoc: The form of public
participation is left to the project proponent;
Overlap: Integrated planning and EIA (often EIA is
commissioned after State Executive Committee
has already approved proposal);
Implementation of the conditions in the EIA
approval seems to be the weakest link in the
Malaysian EIA system, suggesting more work for
the Environmental Court.
Environmental Impact Assessment Law of the P. R.
China (adopted in 2003);
◦ EIA practice introduced in 1973 and implemented (project
basis) since 1979;
Rate of EIA enforcement for development projects
was 61% in 1991 and it increased to 90% in 2000
(SEPA, 1999).
EIA is supplemented by 15 specific laws that address
air, noise and water pollution control, management of
solid wastes, resource conservation, wildlife, landuse control, and hazardous material disposal.
Important administrative regulations and guidance:
the Ordinance of Environmental Management for
Construction Projects (OEMCP) (1998);
Also includes policies, plans or programs under the SEA
law (not even all EU states have this);
Monitoring is a compulsory part in China’s EIA process 
not only at completion of project but throughout
Department of Supervision and Management under MEP is
responsible for watching over and coordinating EIA
implementation nationwide;
EIA Review Committee is in charge of reviewing and
making decisions on those EISs of projects that need the
approval from MEP;
Appraisal Center for Environment and Engineering:
responsible for providing technical review, supporting
research, and training for licensed agencies and sub-levels
of Environmental Protection Bureaus (EPBs) (vertical
◦ EPBs receive their budgetary resources from their local
Three categories of projects (A, B, and C) (ADB)
◦ A: Projects which are likely to cause a range of
significant adverse environmental impacts need to
produce an Environmental Impact Report (EIR);
◦ B: Projects which are likely to cause a limited number of
significant adverse environmental impacts need to fill in
an Environmental Impact Form (EIF);
◦ C: No adverse impact expected but still have to fill in an
Environmental Impact Form (EIF);
4 additional categories: (i) nuclear or military; (ii)
cross-province; (iii) large scale and approved by
State Council (more than US$2.5 million); and (iv)
Introduced in 1977;
National Environmental Research Institute under the
Office of the Prime Minister responsible for EIAs;
1982: professional EIA agencies (now around 200);
1990: Public participation;
1993: EIA Act (EIAA) (independent law);
1999: Introduction of SEA for administrative policies
◦ Preliminary Environmental Review System (PERS)
2009: Introduction of scoping process, simplified EIA,
and inclusion of greenhouse gas emissions
Number of EIA projects (2009): 76 unit projects / 17
MOE ROK and KEI are providing training on
transboundary EIAs;
Preparation of draft
Done by a qualified
EIA agent
Project developer
Public participation
Preparation of EIS
Project developer
Submission of EIS
Project developer  Approval
Consultation of EIS
Review of EIS by KEI
Approval agency  MOE
Final Decision
Approval agency  project
Approval agency & MOE
(Moon 2012)
2012: Now EIAs are no longer governed by both the
Framework Act on Environmental Policy and the EIAA
◦ Eliminating confusion caused by inconsistencies in the Acts.
Other amendments include:
 Strategic Environmental Impact Assessments and
Small-Scale Environmental Impact Assessment
replace Prior Environmental Review;
◦ Increase clarity and consistency
Public opinions must be accepted at the SEIA stage
Environmental Impact Evaluators certified through
National Examination
◦ New criteria for experts broader and not only narrow
technical expertise required;
Environment Management Bureau (EMB)
responsible for EIAs (both central and
regional offices)  some extent of
Emphasis on prevention (i.e. gather
information prior to implementation to make
informed decision about a project);
Project proponent responsible for adequate
training of staff;
Category A. Environmentally Critical Projects (ECPs)
with significant potential to cause negative
environmental impacts
Category B. Projects that are not categorized as
ECPs, but which may cause negative environmental
impacts because they are located in
Environmentally Critical Areas (ECAs)
Category C. Projects intended to directly enhance
environmental quality or address existing
environmental problems not falling under Category
A or B.
Category D. Projects unlikely to cause adverse
environmental impacts.
Screening - determines whether the proposed project, requires an EIA and
if it does, then the level of assessment required;
Scoping - identifies the key issues and impacts that should be further
investigated. This stage also defines the boundary and time limit of the
Impact analysis - gathering of baseline information, and identifies and
predicts the likely environmental and social impact of the proposed project
and evaluates the significance;
Mitigation - recommends the actions to reduce and avoid the potential
adverse environmental consequences of development activities;
Reporting - presents the result of EIA in a form of a report to the EMB;
Review of EIA/Project Appraisal - examines the adequacy and effectiveness
of the EIA report and provides the information necessary for decisionmaking;
Project Implementation and Monitoring. This stage comes into play once
the project is commissioned. It checks to ensure that the impacts of the
project do not exceed the legal standards and implementation of the
mitigation measures are in the manner as described in the EIA report.
(University of Santo Tomas 2012)
Introduced into EC law by a Directive (85/337/EEC)
(adopted in July 1985);
◦ Distinguishes between Mandatory EIAs, and those at
discretion of the Member States;
“Best environmental policy consists of preventive
action and that it is necessary to identify the likely
damage to the environment of a particular project
(or action) at the earliest possible stage”
(Lambrechts, 1996).
Plans & programmes
covered by SEA Directive
covered by EIA Directive
85/337/EEC as amended by 97/11/EC and 2003/35/EC
By July 2004 all EU Member States to implement SEA Directive;
(EC 2006)
2 different versions of EIA - one is
mandatory for all member states and the
other is optional;
◦ Depending on classification of proposed projects
(Annex I and Annex II respectively)
Three important amendments
◦ 1997: Transboundary issues, more criteria, more
information to be provided;
◦ 2003: Provisions for including Aarhus Convention
◦ 2009: Adding projects related to the transport,
capture and storage of carbon dioxide (CO2);
Bond 1999:4)
(Moon 2012)
Transboundary EIA treaties ensure that states give
extraterritorial impacts the same scrutiny as domestic
◦ Transboundary development projects (rivers, estuaries,
ecosystems, off-shore dredging, etc.);
◦ Coordination of ODA and development projects internationally;
Transboundary regimes often lead to additional bilateral
treaties between signatories;
To improve efficacy of international EIA systems it would
be necessary to either:
◦ Create matching international regulations analogous to the
domestic ones that empower environmental ministries
◦ Ensure that member nations have EIA capacity at domestic level
and transpose (and use) those institutions dealing with domestic
EIAs for international ones.
 Capacity building and harmonization of EIA systems among countries;
 Twining partnerships among interested countries;
 What would be the best process for enforcement?
Virtually all countries in Asia (and
elsewhere) require EIA and this is
generally embedded in national
laws, regulations, and mandated
Over time, developing countries
have experimented with various
innovations, such as cumulative
assessments, health impact
assessments, social impact
assessments, and incorporation of
climate change, but these
innovations have not been adopted
Focus areas:
 (i) is the data generated effectively communicated to
decision-making or planning processes;
 (ii) does the data and knowledge gained influence
real outcomes.
On the outcome side, criteria for evaluation pertain to
two angles:
 (i) the emphasis on the outcomes and
 (ii) emphasis on soundness of the EIA process.
In terms of bringing various stakeholders together,
useful questions for evaluation of EIAs could focus on
whether the EIA process provides any options for
linking views and objectives of different stakeholders.
Loopholes in the list of prescribed projects
Late timing – decision has already been made to
Inadequate consideration of alternatives
Incremental rather than cumulative impacts
Conflicting interests - public sector projects are
often the worst offenders for non-compliance
Inadequate qualifications and certification
Lack of data – especially cause-effect or doseresponse data
Systematic under-estimation of costs
Inadequate monitoring plans
(x) Poor compliance and enforcement
(xi) Inadequate sanctions +/or prosecutions
(xii) Conflicting jurisdictions
(xiii) Inadequate public participation
(xiv) High transaction costs
Note that a number of these challenges have
more to do with effective implementation of
EIAs and environmental monitoring and
management plans, rather than their
W ha t a re s o me o f the k e y le g a l a nd re g ula to ry limita tio ns to e ffe c tiv e imp le me nta tio n a nd
e nfo rc e me nt o f E IA re q uire me nts in y o ur c o untry ?
R e s p o ns e
P e rc e nt
R e s p o ns e
Co unt
Inadequate EIA regulations do not provide clear guidelines on the conduct of
Laws do not impose enough accountability on developers and/or EIA
There are overlapping and/or conflicting jurisdictions of multiple agencies
Sanctions are inadequate for violation (e.g. financial penalty is too small to act
as a deterrent)
Process is lengthy and cumbersome to acquire EIA approval
Mechanisms are inadequate to monitor and enforce EIA regulations
Other (please specify)
List of prescribed projects are not sufficiently comprehensive or clearly defined
EIAs are not legally required early enough in a project cycle
EIA laws and regulations do not require effective public participation
Guidelines are inadequate for EIA-approving authorities
B a s e d o n y o ur e xp e rie nc e , wha t a re the k e y o b s ta c le s fo r the e ffe c tiv e imp le me nta tio n
a nd mo nito ring o f E MMP s ? P le a s e s e le c t the thre e mo s t imp o rta nt re a s o ns .
R e s p o ns e
R e s p o ns e
P e rc e nt
Co unt
Insufficient procedural guidance
Lack of baseline data and no funding for data collection
No sound basis/ expertise for proposed mitigation measures
Proposed EMMPs are not cost-effective
Lack of ownership/commitment for EMMPs by project owner
High transaction cost and inadequate funding in preparing the EIA
Inadequate financing for monitoring EMMPs
Inadequate sanctions (e.g. level of financial penalty is too low)
General guidance materials for EIA practice are
widely available, as noted in the bibliography (for
example, Sadler and McCabe (2002) and UNU
(2007), and in a number of countries government
officers and professionals have received extensive
training” (FAO 2009).
Other countries (notably US) offer online EIA
training courses, which makes it easier for officials
and EIA staff at organisations to keep their
knowledge up-to-date (EIA-training 2012).
Also keep your eye on the AECEN EIA Compendium
(http://www.aecen.org/eia-compendium) – more
exciting developments to come.
Environmental assessment should be implemented earlier
(at program or policy formulation stage) to identify other
alternatives at earliest stage before decisions are locked in;
It could improve accountability if independent reviewers
were to conduct the EIA review process;
Compliance with EIA process/procedures at the approval
stage, does not guarantee enforcement till the end of the
project life-cycle. EIAs should include also possible longterm and decommissioning impacts.
Consider moving from target clearance type of assessment
to “best effort” types of assessment. “Best-effort”
assessments may reveal more effective options than if
minimal predefined and static targets were to be achieved.
EIAs alone do not suffice. Environmental protection,
standards and other regulations plus effective compliance
and enforcement can increase environmental effectiveness
when implemented alongside EIAs.
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