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Lecture Notes

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:

  • Preliminary activities include the selection of a coordinator for the EIA and the collection of background information. This should be undertaken as soon as a project has been identified.
  • Impact identification involves a broad analysis of the impacts of project activities with a view to identifying those which are worthy of a detailed study.
  • Baseline study entails the collection of detailed information and data on the condition of the project area prior to the project's implementation.
  • Impact evaluation should be done whenever possible in quantitative terms and should include the working-out of potential mitigation measures. Impact evaluation cannot proceed until project alternative has been defined, but should be completed early enough to permit decisions to be made in a timely fashion.
  • Assessment involves combining environmental losses and gains with economic costs and benefits to procedure a complete account to each project alternative. Cost-benefit analysis should include environmental impacts where these can be evaluated in monetary terms(see Economic Analysis section).
  • Documentation is prepared to described to the work done in the EIA. A working document is prepared to provide clearly stated and argued recommendations for immediate action. The working document should contain a list of project alternative with comments on the environmental and economic impacts of each.
  • Decision-making begins when the working document reaches the decision maker, who will either accept one of the project alternatives, request further study or reject the proposed action altogether.
  • Post audits are made to determine how close to reality the EIA predictions were.

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.

  1. Requirement of EIA in respect of activities likely to have a significant impact on natural resources and the environment i.e. stage at which EIA is required.
  2. Criteria and procedure for determining which activities require EIA, e.g. lists of relevant projects, areas and resources, requirement of a preliminary assessment etc.
  3. Institutional arrangements - the establishment and empowerment of a designated authority to require EIAs and administer the process.
  4. Communication procedures and time tables.
  5. Format and requirement of EIA report - responsibility for preparing report having regard to requirements of objectivity and transparency.
  6. Review of EIA - scientific and technical review - institutional arrangements.
  7. Public participation - rights of the public; procedural matters.
  8. Decision making process.
  9. Appeals from decisions of authorized bodies - administrative, quasi-judicial and judicial.
  10. Transboundary impacts - requirements of notification, consultation and accommodation.
  11. Continuing monitoring

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;

  • A description of the proposed activity;
  • A description of the potentially affected environment, including specific information necessary for identifying and assessing the environmental effects of the proposed activity;
  • A description of practical alternatives as appropriate;
  • An assessment of the likely or potential environmental impacts of the proposed activity and alternatives, including the direct, indirect, cumulative, short-term and long-term effects;
  • An identification and description of measures available to mitigate adverse environmental impacts of the proposed activity and alternatives, and an assessment of those measures;
  • An indication of gaps in knowledge and uncertainties which may be encountered in compiling the required information;
  • An indication of whether the environment of any other State or areas beyond national jurisdiction are likely to be affected by the proposed activity, and possible alternatives; and
  • A brief non-technical summary of the information provided under the above headings.

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

1. Scope of legal regulation
  • requirements;
  • level of government;
  • identification of projects.
2. Institutional aspects
  • authorized agencies and their respective powers and functions.
3. Procedural aspects
  • Communication procedures and time tables;
  • reporting requirement;
  • consideration of alternative and mitigating parties;
  • public participation;
  • review;
  • decision making;
  • appeals;
  • transboundary impacts;
  • monitoring and assessment.

Challenges and responses

  1. Approach - shifting focus from projects proponent to people affected - both beneficially and adversely.
  2. Adequacy and clarity of EIA scheme.
  3. Reliability of information/data.
  4. Adequacy of methods for assessing impacts and placing appropriate weight on negative environmental impacts in relation to developmental factors.
  5. Resource capabilities.

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