EIA Framework Laws & Enforcement

EIA Framework Laws & Enforcement 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)

Outline • Brief overview of impact assessments in: • United States • Japan • Malaysia • China • Korea • Philippines • EU (EIA Directive) • Value of EIAs in an international context • EIA related training • Evaluation of EIA enforcement • Concluding recommendations

Impact Assessment in the USA • 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 exceptions). Proposing Agency Notice of Intent Scoping Process Draft EIS EPA and other agency comments Record of Decision Final EIA Review and Approval Public Comments (Stampe 2009)

US EIA process cont’d • Purpose • To decide whether a detailed environment impact statement (EIS) is necessary or not; • To integrate generation and dissemination of environmental information; • 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 agencies. • 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?

Japan - EIA Law EIA is required for 13 types of projects (MOEJ 2012:3)

Japan –EIA continued • 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 proponent; • 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).

Japan - on PEIC and IMR • 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

EIA in Malaysia (DOE-MONRE 2010:20)

EIA in Malaysia: Process and Institutions Project Proponent No EIA Detailed EIA Preliminary EIA Screening and consultation with DOE Detailed assessment No EIA Preliminary assessment Preparation of Detailed Assessment Brief by review panel appointed by DOE Project proponent prepares TOR after informal consultation with DOE Public Comments on Brief Preparation of Detailed Assessment by project proponent Preliminary assessment by project proponent Public comments on report Federal (or state) level review by DOE Report review by Review Panel Approving Authority Project implementation and monitoring (Stærdahl, Jens, ZuriatiZakaria et. al 2004:5)

Devolution of environmentalregulation in Malaysia • 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 states; • EIA training of staff is a responsibility of employer/project initiator;

Recent developments in Malaysian EIA Enforcement • 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).

Issues with EIA in Malaysia • 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 afterState 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.

EIA in China • 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, land-use control, and hazardous material disposal. • Important administrative regulations and guidance: the Ordinance of Environmental Management for Construction Projects (OEMCP) (1998);

EIA China process

EIA in China (2) • 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 implementation; • 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 integration); • EPBs receive their budgetary resources from their local governments

EIA in China (3) • 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) transboundary.

EIA in Republic of Korea (ROK) • 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 areas • MOE ROK and KEI are providing training on transboundary EIAs;

EIA procedure in ROK Done by a qualified EIA agent Preparation of draft EIA Monitoring Final Decision Consultation of EIS Preparation of EIS Submission of EIS Project developer Approval agency  MOE Approval agency & MOE Project developer  Approval agency Public participation Approval agency  project developer Project developer Review of EIS by KEI (Moon 2012)

Recent amendments EIA ROK • 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;

EIA in the Philippines • Environment Management Bureau (EMB) responsible for EIAs (both central and regional offices)  some extent of decentralization; • 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;

EIA categories (project ranking) 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.

Philippines: Steps of EIA process • 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 study; • 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 decision-making; • 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.

EIA Process Flowchart (University of Santo Tomas 2012)

European Union EIA Directive • 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).

EU: Relation between EIA and SEA Policies Plans & programmes covered by SEA Directive (2001/42/EC) Projects 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)

EU EIA Directive (2) • 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 objectives; • 2009: Addingprojects related to the transport, capture and storage of carbon dioxide (CO2);

EIA in the EU Bond 1999:4)

Transboundary EIA systems (Moon 2012)

Value of transboundary EIAs • Transboundary EIA treaties ensure that states give extraterritorial impacts the same scrutiny as domestic impacts. • 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?

EIAs in International Context • Virtually all countries in Asia (and elsewhere) require EIA and this is generally embedded in national laws, regulations, and mandated procedures; • 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 widely. http://www.aecen.org/eia-compendium

Evaluating effectiveness of EIA Enforcement 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.

Common Challenges in EIA Practice • Loopholes in the list of prescribed projects • Late timing – decision has already been made to proceed • 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 dose-response data • Systematic under-estimation of costs • Inadequate monitoring plans

Challenges (cont’d) (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 preparation.

Regulatory Impediments

Obstacles for Implementation

EIA related training • 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.

http://www.aecen.org/eia-compendium

General recommendations • 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 long-term 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.

Thank you!

References - Aecen 2010. Environmental Impact Assessment (Eia) System in the Philippines. Strategic Environmental Assessment Considerations of Cumulative and Induced Impacts Financial Mechanisms.http://www.aecen.org/sites/default/files/workshop/june2010/ presentations/Presentation_sea,%20etc%20060910%20final.PHI.pdf ; -About Philippines 2013. Requirements for Environmental Impact Assessment System. http://aboutphilippines.ph/filer/PermittingProceduresEIA.pdf; - BakarJaafar 2004. Environmental impact assessment::principles, policy and practice. AbjEnviro-Lecture Series 1/2004. http://www.scribd.com/doc/29153105/ENVIRONMENTAL-IMPACT-ASSESSMENT-MSM3208-LECTURE-NOTES-7-Principles-Policy-and-Practice; -Bond A. 1999.EIA in the European Union. http://www.is.pw.edu.pl/plik/204/EIA%20in%20the%20EU.pdf - Chen Qiaoling, Yuanzhi Zhang and Ari Ekroos 2007. Comparison of China’s Environmental Impact Assessment (EIA) Law with the European Union (EU) EIA Directive. Environ Monit Assess (2007) 132:53–65 - Department of Environment – Ministry of Natural Resources and Environment of Malaysia 2010. Environmental Requirements: A Guide for Investors. Eleventh Edition. October 2010. http://www.doe.gov.my/portal/wp-content/uploads/2010/12/A-Guide-For-Investors1.pdf -EC 2006. “Strategic” Environmental Assessment Directive 2001/42/EC: “on the assessment of the effects of certain plans and programmes on the environment”. Relationship with the Cohesion Policy for the period 2007-2013. Presentation. http://ec.europa.eu/environment/integration/pdf/nychas_en.ppt - EMB 2010. Technical Guidelines for the conduct of Environmental Impact Assessment (EIA) under the Philippine EIS System: Integrating Climate Change Risk Reduction (CRR)/ Climate Change Adaptation (CCA) Analysis emb.gov.ph/eia-new/2010-12/General%20Guidelines.pdf‎; - Hayes Sean 2013. Environmental Impact Statements in Korea: New Korean Environmental Impact Assessment Regime. The Korean Law Blog. http://www.thekoreanlawblog.com/2013/02/environmental-impact-statements-in.html • Kersten, Charles M.2009. Rethinking Transboundary Environmental Impact Assessment. A Note. http://www.yale.edu/yjil/files_PDFs/vol34/Kersten.pdf; - Memon Ali 2002. Devolution of environmental regulation: EIA in Malaysia. Case study 6. UNEP EIA Training Resource Manual. http://www.unep.ch/etu/publications/13)%2045%20to%2061%20doc.pdf; - MOEJ 2012. Environmental Impact Assessment in Japan. Environmental Impact Assessment Division. Ministry of the Environment of Japan. http://www.env.go.jp/en/focus/docs/files/20120501-04.pdf;

References (2) - MOEJ 2010. History of EIA Systems and Measures taken around the World. https://www.env.go.jp/earth/coop/coop/ document/10-eiae/10-eiae-2.pdf; - Moon, Nankyoung 2012. Environmental Impact Assessment system in Korea. Presentation. Geneva April. 24 , 2012. Korea Environment Institute. http://www.unece.org/fileadmin /DAM/env/eia/documents/ WG2.1_apr2012/EIA_system_ROK_moon_Geneva.pdf -Phillips, M.J., Enyuan, F., Gavine, F. et.al. 2009. Review of environmental impact assessment and monitoring in aquaculture in Asia-Pacific. In FAO. Environmental impact assessment and monitoring in aquaculture. FAO Fisheries and Aquaculture Technical Paper. No. 527. Rome, FAO. pp. 153–283. http://www.fao.org/docrep/012/i0970e/i0970e00.htm; - Stampe, John 2009. Lessons Learned from Environmental Impact Assessments: A Look at Two Widely Different Approaches – The USA and Thailand. The Journal of Transdisciplinary Environmental Studies vol. 8, no. 1, 2009. http://www.journal-tes.dk/vol_8_no_1/artiekl%202%20John%20Stampe.pdf - Stærdahl, Jens, Zuriati Zakaria et. al 2004. Environmental Impact Assessment in Malaysia, South Africa, Thailand, and Denmark: Background, layout, context, public participation and environmental scope. The Journal of Transdisciplinary Environmental Studies vol. 3, no. 1, 2004 http://www.journal-tes.dk/ vol%203%20no%201/Jens%20St%E6rdahl_lav.pdf?id=00028 University of Santo Thomas Undated. Environmental Impact Assessment in the Philippines. EnviArch SP2: Ecological Construction. http://xa.yimg.com/kq/groups/18629501/722933483/name/Environmental - Unknown 2012. 1st HIA for ASEAN Workshop. Understanding Health Impact Assessment (HIA): A Foundation for the Well-being of the ASEAN Community” 13-14 February 2012, The Aquamarine Resort and Villa, Phuket, Thailand; - Tao Tang, Zhu Tan and Xu He 2007. Integrating environment into land-use planning through strategic environmental assessment in China: Towards legal frameworks and operational procedures. Environmental Impact Assessment Review Volume 27, Issue 3, April 2007, Pages 243–265. http://www.sciencedirect.com/science/article/pii/S0195925506001247

EIA Framework Laws & Enforcement