ENVIRONMENTAL IMPACT ASSESMENTS(EIA)
Prepared by Glen Paoletto
The level and pace of socio-economic advancement in developing countries has important implications for the efficacy with which legislature and institutional regimes are developed and applied for the promotion of environmental management. In the first instance, the imperatives of rapid social and economic development could influence the political will to initiate, implement and enforce appropriate environmental policies and laws. Secondly, these development imperatives often circumscribe the limits of resources available for environmental protection. Thirdly, implementing agencies often operate under severe resource constraints and fourthly, the relatively low level of public awareness, particularly environmental awareness does little to trigger a sense of urgency and resolve for political and legislative action for environmental management for sustainable development. In the absence of familiarity with environmental legislation and the environmental impacts of human activities there is likely to be no spontaneous observance of normative demands for efforts at environmental protection and enhancement. In the last instance, the desire to satisfy basic social needs could very well override even basic environmental considerations.
It might also be remembered that environmental management in many countries, especially the developing countries, is achieved not only through environmental legislation, i.e. laws, regulations and rules which are enforceable in a court of law, but also through administrative provisions such as administrative orders, technical standards etc. which are applied through various administrative mechanisms. This is especially true in relation to the implementation of international environmental conventions. Often, many years pass before provisions are established in laws for the implementation and application of the provisions of international agreements. It is equally true in the implementation, especially at its early stages, of environmental policy, such as the requirement of environmental impact assessment in respect of development projects and the procedures to be followed in respect of such assessments. From this perspective, environmental legislation is one of the chief tools for formulating environmental policy while also being one of the major instruments for implementing it.
The requirement of a State to conduct Environmental Impact Assessments in respect of activities that are likely to significantly affect the environment has been reflected in Principle 17 of the Rio Declaration on Environment and Development, Article 5 of the Legal Principle for Environmental Protection and Sustainable Development, adopted by the Experts Group on Environmental Law of the World Commission on Environment and Development, and in the 1987 Goals and Principle of Environmental Impact Assessment developed under the auspices of UNEP by the Working Group of Experts on Environmental Law and which were adopted by the UNEP Governing Council at its 14th session, and commended to States to be considered for use as a basis for preparing appropriate national measures including legislation. Such a requirement in the context of transboundary impacts has also been incorporated in several regional agreements, e.g. UN/ECE Convention on Environmental Impact Assessment in a Transboundary Context (1991) and several Regional Agreements concluded under UNEP's Regional Seas Programmes and resolutions of international bodies, e.g. 1984 ECA Council Resolution on Environmental and Development in Africa, 1984 EEC Council Directive on Assessment of the Effects of Major Public and Private Projects on the Environment.
The issue to be addressed here is how environmental damage can be avoided or reduced so as to ensure that development initiatives and their benefits are sustainable. The directive of environmental management should be to achieve the greatest benefit presently possible for the use of natural resources without reducing their potential to meet future needs and the carrying capacity of the environment. Taking environmental considerations into account in development planning does not imply that the pace of socio-economic progress will be slowed down, and taking environmental considerations into account in the various phases of the project cycle must not be seen as placing undue constraints on a country's development options. If a projects is to be suspended on environmental grounds, alternative opinions that are environmentally sound must be provided to meet the country's developmental needs. Moreover, implications of environmental impacts assessed from the global standpoint cannot be insensitively translated into specific action in the developing countries in the absence concrete alternatives that would enable the poor countries to relate the short-term well-being of their populations to their long-term well-being and to that of the world.
For most projects, particularly those involving large public investments in areas such as infrastructure, an Environmental Impact Assessment(EIA) should be carried out and linked to the cost-benefit analysis. The objective of the EIA is to ensure that environmental aspects are addressed and potential problems are foreseen at the appropriate stage of project design. EIA should be envisaged as an integral part of the planning process and initiated at the project level from the start.
Various guideline on EIA are available. The main steps are as follows:
National Legislative and Institutional regimes for Environmental Impact Assessment
What then are the main elements of an adequate national legislative and institutional regime to give effect to and implement the above mentioned principles of environmental impact assessment? Though a universally applicable model of legislation for environmental impact assessment may be not be feasible, it is possible to identify certain crucial elements of the EIA process that may be regulated through legislative means. In this connection, it might also be borne in mind that "law" in the sense of statutes enacted by the legislature represent only one type of law making and could yield an incomplete picture of the regulatory regime, which may also included, administrative directives, judicial decisions, customs, etc.
Having regard to the principles of Environmental Impact Assessment discussed and State practice in the legislative and institutional field, it would appear that the following constitute the principle elements of a national regulatory regime for EIA.
The regulation governing EIA should indicate as clearly as possible which projects are subjected to EIA procedure and which are not, so as to avoid bureaucratic constrains on minor activities. If it is felt that the requirement for EIA would change with time, it may be appropriate to make only a general statement in the body of the legislation and keep the specifics for supplementary guidelines or regulations. Rules governing an EIA should always be documented.
On the contents of EIA, the law may provide for submission of a written document to a designated agency or decision-making body describing the environmental impact of a proposed project and/or alternatives and mitigating measures(and their assessments). At a minimum, the document should contain;
The EIA legislation or provision should establish effective review and dispute settlement procedures to avoid unnecessary delays in decision-making. Technical review may be undertaken by an independent agency of environmental exports on the proposal project or in exceptional circumstances the decision maker. There is need for a tribunal or arbitrator for dispute settlement, since the ordinary courts may be too busy to act on EIA cases promptly because of the workload they have. An independent arbitrator or a special body could be provided for to hear objections and make decisions with reasonable dispatch. Such an arrangement will ensure that EIA countries to be a tool to aid development rather than being an impediment to it.
Current status of EIA legislation in developing countries
Provisions related to EIA began appearing in developing countries' legislation during the 1970s, shortly after the United States enacted the first national EIA law-the National Environmental Protection Act of 1969. References to EIA were made in the environmental legislation of Malaysia, Ecuador and the Philippines. In addition, the Philippines promulgated supplemental legislation which set forth a more detailed EIA procedure.
Throughout the 1980s, more countries decided to establish EIA as an element of environmental policy and a legal requirement for proposed development activities. Again, many countries elected to insert EIA provisions within their framework environmental legislation(e.g. Algeria, Costa Rica, Cuba, Guatemala, India, Pakistan, Palau, Senagal, South Africa, Togo, Turkey), while other also elaborated EIA requirements within a complementary decree or regulation (Brazil, Congo, Indonesia, Mexico).
Since 1990 the pace of legislative activity on environmental issues has quickened and the number of countries with EIA legislation has increased significantly. Recent framework environmental laws tends to address EIA in more detail (Albania, Belize, Bolivia, Bulgaria, Burkina Faso, Cape Verde, Chile, Colombia, Comoros, Egypt, Gabon, Honduras, Jamaica, Kazakhstan, Kyrgyzstan, Latvia, Mauritius, Peru, Seychelles, Slovenia, Tajkstan, Thailand, the Gambia, Ukraine, Vietnam, Zambia) and more countries have issued EIA laws, decrees and regulations ( Czech Republic, Hungary, Mongolia, Nigeria, Paraguay, Russian Federation, Slovak Republic, Tunisia, Uruguay). One country( Zimbabwe) recently has chosen to issue an EIA policy rather than to enact binding legislation.
According to information collected by UNEP, EIA provisions now exist in the framework environmental legislation of 55 developing countries. In addition, at least 22 developing countries currently have specific laws, decrees or regulations which contain criteria or procedures applicable to EIA. Other decrees and administrative instruments provided sectoral EIA guideline related to mining, energy, transport, etc.
Analysis of EIA legislation in developing counties
Challenges and responses
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