ENVIRONMENTAL IMPACT ASSESSMENT AND ENVIRONMENTAL COMPLIANCE AND ENFORCEMENT: AN AGENDA FOR A COMMON APPROACH KOLHOFF, AREND 1 RUESSINK, HENK 2 1
Senior advisor for the Netherlands Commission for Environmental Assessment on developing EIA systems in low income countries,
[email protected] 2 Coordinating policy advisor, Inspectorate for Environment, Ministry of Infrastructure and Environment, The Netherlands, henk.ruessink@minvrom. This paper is written on a personal basis. SUMMARY Environmental impact assessment (EIA) and Environmental compliance and enforcement (ECE) share the same long term objective of protection of the environmental quality. To become more effective in achieving this shared goal, it is suggested that the communities of EIA and ECE practitioners could better work together. This paper proposes an agenda for a common approach. 1
INTRODUCTION Environmental Impact Assessment (EIA) is a decision support approach that was founded in the USA in the late 1960s, adopted in the 1980s in most of the western developed countries, and followed by the majority of the developing countries in the 1990s. Today nearly all countries around the world have legally adopted EIA systems. EIA, in principle, is required for those projects that are expected to cause significant negative environmental impacts. The short-term objective of EIA is to inform and influence decision-makers and inform the general public. Subsequently, the EIA report is meant to be used in the preparation of the environmental license. Evaluation studies (Sadler, 1996) show that short-term objectives can be achieved but to what extend depends on a number of factors such as political will, capacity of the authority and available means. Improvement of environmental quality is considered as the long-term objective of EIA. Evaluations show that EIA does contribute to achievement of long-term objectives, however, evaluations (Espinoza and Alzina, 2001; Ahmad and Wood, 2002) also show that the weak or sometimes absent environmental compliance and enforcement of the environmental license that is based on the EIA report, is a crucial limiting factor. As such, this issue is out of the scope of the EIA system and therefore, a well functioning system for environmental compliance and enforcement (ECE) is a prerequisite for effective EIA. In fact, the EIA and ECE system share the same long-term objective and support each other. On the basis of good EIA, the quality of the environmental license can be improved and become a better framework for environmental compliance. This shows the linkages between the EIAand ECE system. Professionals in the area of ECE are more and more aware of this connection and consider EIA as a priority, particular in regions of big development projects, like in Asia. Since the 1990s, capacity development programmes in a large number of developing countries have been implemented aiming to develop an EIA- as well as an ECE system and improve the performance in practice. Examples are Georgia, Pakistan and Ghana. Unfortunately, most programmes only focused on one of the two systems. In view of the
described linkage between the two systems, it seems reasonable that a capacity development strategy that works simultaneously on both systems is more effective. Therefore, the purpose of this article is to identify the need for the development of a common approach on the basis of lessons that can be learned from practitioners working on the establishment of a more effective EIA or ECE system and develop an overall capacity development strategy. In this paper the following two questions will be addressed: 1. Is there a need for integration of the EIA system and the ECE system? 2. Is there a need for a common approach for capacity development of EIA- and ECE systems? This article is primarily written for practitioners working in the field of environmental compliance and enforcement and who are aware of EIA but have no, or only limited, working experience with EIA. Therefore in chapter 2, the description of the EIA system is more elaborate than the description of the ECE system. 2
EIA AND ECE SYSTEMS
2.1
Comprehensive description of the EIA system Countries with EIA legislation establish an EIA system to put the EIA legislation into practice. An EIA system consists of (i) an EIA regulatory framework such as legislation, procedures and guidelines, and (ii) a legal mandate for stakeholders that should be involved. In most countries the following four main groups of stakeholders have mandates in the EIA process. Firstly, the proponent who wants to implement a project that requires an EIA; either a private investor or a government authority. Secondly, the authorities responsible for EIA and licensing; in nearly all countries these are two separate departments under the responsibility of the ministry of environment or the environmental protection agency. Sometimes it is the responsibility of a sector ministry. Thirdly, knowledge actors or experts such as consultants and knowledge institutes like universities; they are responsible for either the preparation of the EIA study or its quality review. Fourthly, the general public or people affected by the project, often represented through environmental non-governmental organizations. 2.2
EIA procedure In general, an EIA is legally required for all projects that are expected to have significant negative environmental impacts. However, the thresholds for applicability of EIA differ between countries. This results in large differences between the number of EIAs that are conducted in a country. For example about one hundred per year in the Netherlands and a few thousand in Russia, see (Cherp, 2001). This number is of course also influenced by the size of the country and its economy. The EIA procedure consists of five phases: 1.
2.
Screening; this is the process in which the need for an EIA is determined, resulting in a decision by an authority. Screening mechanisms that are applied may consist of prescribed lists, expert judgment or a combination of those two. Scoping; this is a process in which the contents of the EIA study are defined. It results in guidelines or Terms of Reference for the EIA study and EIA report, which are approved by the competent authority. The Terms of Reference describe the requirements that should be met, such as environmental standards or the elaboration of a number of site-, process-, or technology alternatives.
3.
EIA execution; in this phase the actual EIA study, based upon the mentioned guidelines or Terms of Reference, is executed.
4.
Reviewing and decision-making. Reviewing is a process in which the quality of the EIA report and EIA process is assessed by a so-called review committee of experts. In general, the committees can make one of the following three advices to the competent authority: (i) reject the EIA in case essential standards cannot be met and as a consequence the project is rejected; (ii) to adapt the EIA when the quality is not acceptable and (iii) approve the EIA. Based upon the approved EIA the competent authority decides to provide an environmental permit or license. This means that for projects requiring an EIA, EIA is one of the most important sources to influence the environmental license conditions.
5.
EIA evaluation during implementation of the project (if it was approved). The objective of EIA evaluation is threefold: a. To assess whether the impacts predicted in the specific EIA do occur in practice. This might result in a need for an adaptation of the environmental license. b. To learn and improve the reliability of predictions on impact assessment in the EIA report. This will result in better skills of practitioners and might result in adaptation of existing guidelines for EIA in a specific sector. c. To assess actual developments in the context of the project. E.g. the emergence of a better technological alternative or a need for stricter environmental standards than foreseen during the EIA.
6.
Public participation is a very important aspect of EIA. The public in most countries is involved throughout the EIA process, particularly in the phases of scoping, EIA execution and reviewing.
2.3
Performance of the EIA system in practice The performance of EIA system is defined as to what extent the short-term objectives, measured in terms of output and outcome, have been achieved. See figure 1 for an overview of possible output and outcome. Performance of EIA systems in western democratic countries ranges from modest to highly effective. In developing countries, the performance of EIA system ranges from very low to modest (Cherp 2001, Wood 2003). However the differences between countries are large. In most countries weak performance is caused by a combination of the following factors. Firstly, the regulatory framework is incomplete, unclear and provides opportunities for multi-interpretation. Secondly, the capacity of the environmental authority is weak due to limited mandate, skills, lack of leadership and political will and pressure of influential politicians on decision-making. Thirdly, the capacity of knowledge actors is weak. Fourthly, environmental NGOs representing the civil society cannot have an influence due to legal obstacles and weak capacity. 2.4
Concise description of ECE-system, procedures and process Since it is assumed that most readers have already a basic understanding of the ECEsystem, this paragraph is limited to a concise description. The ECE-system is a specific but important part of a larger system of licensing/permitting and compliance assurance. ECE finds its basis in a regulatory framework that attributes authority and instruments to government institutions and its officers to monitor, inspect, control and enforce the compliance behavior of regulatees and regulated entities.
Permits, licenses, laws and direct binding rules are the legal reference for the conclusions regarding compliance. In well-developed ECE-systems, legal procedures and provisions are in place to safeguard the rights of the regulatees if they disagree with the conclusions and response of the authorities regarding their (non-) compliance. Elements of this protective system can be formal objections directed to the relevant administrative body, or appeal to the court. Also the general public and NGOs may issue official complaints regarding the compliance behavior of regulatees and issue a formal request to the competent authority to enforce the permit or other applicable rules. ECE is crucial in implementing the environmental permit and its conditions. Therefore, the effectiveness of ECE for the short and long term environmental outcomes, strongly depends on the content and the quality of the permit, as issued by the competent authorities. The quality management relating to ECE, when properly done, already starts during the drafting of the environmental permit. To address the (often legal) obligations regarding protection of the environment, e.g. emission limits, the issuing authority has to incorporate appropriate conditions and requirements in the permit. However, when these are impractical, non-enforceable or susceptible to fraud, compliance with the rules of the permit will face shortcomings and effective enforcement will be close to impossible. In order to prevent these problems, it is particularly important that knowledgeable compliance and enforcement practitioners are involved in the process of drafting a permit which is clear, realistic and unambiguous. After the permit is issued, ECE has its own role to play. Through monitoring, desk studies and on-site inspection visits the level of compliance of the permit-holder is assessed. Cases of non-compliance are addressed in an appropriate, proportional and justifiable manner, according on their gravity and legal provisions. The response could range from a simple verbal notice up to criminal prosecution in severe cases. Apart from this prime function of ECE – namely assuring the compliance with the permit – there is often also a more evaluative aspect connected to the work of ECE officers. By checking the performance of a company, in an explicit or implicit manner, the environmental inspector simultaneously evaluates the quality of the permit and the conditions/requirements attached to it. By doing so, the officer may notice that in actual practice the permit is not strict enough or too strict with regard to certain aspects of environmental protection. Also it may turn out that specific elements of the permit are in fact unrealistic, impractical or inappropriate, e.g. caused by incorrect assumptions or wrong information. In such cases a formal process can be started to review and modify the (conditions of the) permit. 2.5
Comparison between EIA and ECE systems On the basis of the above descriptions of EIA and ECE, some characteristics that the two systems have in common can be identified: Both are part of a larger system of licensing/permitting and compliance assurance and critical for a successful implementation of that. Country specific context factors, such as the political situation, play a role in the effectiveness of both. The long-term objective is protection of the environmental quality. Both deal with the same projects. All projects requiring an EIA need to have an environmental license and are subsequently subject to ECE. Much the same actors are involved, like the proponent, the competent authority, civil servants representing environmental authorities, environmental non-governmental organizations and the civil society.
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In each of the systems evaluation plays an important role. The results of such evaluation may lead to adjustment of a license and offer learning experience to improve the licensing quality of future projects.
BOX 1: Lessons learned in supporting EIA system development The aim of the Netherlands Commission for Environmental Assessment is to help countries in improving the performance of EIA systems. Based upon 15 years of practical experience in about 20 developing countries a capacity development strategy has been developed. It has the following characteristics. -
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-
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Demand driven; Supporting EIA capacity development is only started on request of or supported by an authority. Context specific; especially the political system and distribution of powers are important factors that determines to what extent EIA capacity development programmes will be successful. Therefore, at the start of a programme, an assessment of the relevant contextual factors is carried out. Systems approach applied; that means that all stakeholders are identified and their capacity, their views on their role in EIA and their inter-relations are assessed. Based upon this information one can better understand the functioning of the current EIA system and identify opportunities for improvement. Country specific and feasible ambitions; the ambitions one wants to achieve with EIA should be realistic for a country with a specific context and capacities of the main stakeholders. High profile pilot projects are important milestones in the development of EIA systems. Involvement in these projects through setting a high quality standard can contribute to first, second and third loop learning. Establishing learning organizations; in an EIA system a number of stakeholders or organizations are involved and they should be supported to develop into learning organizations in order to become more effective.
3
AN AGENDA FOR A COMMON APPROACH The EIA system and the ECE system have many aspects in common as described in chapter 2. However, the practitioners from the EIA and ECE community do not always work together sufficiently. A better alignment of the EIA system and the ECE system could provide better opportunities to achieve the systems’ long-term objective of improving the environmental quality. This means: (i) co-ordination, or even integration, regarding the development of the regulatory framework for EIA and ECE, such as legislation or formal guidelines, and (ii) balanced development of the capacities of the actors involved in EIA and ECE systems. Assuming that ECE practitioners recognize the above observations with respect to the need for a more integrative approach of the EIA and ECE system, it is proposed that practitioners working in both systems start co-operating in practice. Such hands-on approach
is often an effective way to become acquainted with each other and supports the process of mutual learning. To what extent integration is feasible, is most likely country dependent, A viable approach could consist of the following components: - Selection of a developing country that is willing to develop and apply a joint approach for developing a (more) integrated EIA and ECE system. - The Netherlands Commission for Environmental Assessment and INECE jointly execute a mutual assessment of the context, the performance and effectiveness of both systems. - Develop a common capacity development strategy and programme in which the ambitions and objectives of both systems are approached in a connected manner. On the basis of the shared strategy and programme, the specific experts can work with their own processes, methods and tools to develop and strengthen the performance of the individual systems. - After completion of assessment and preparation of a common capacity development strategy lessons are learned and more widely discussed in both EIA and ECE community. 4
REFERENCES
Ahmad, B. and C.Wood 2002. A comparative evaluation of the EIA systems in Egypt, Turkey and Tunisia. Environmental Impact Assessment Review, 22, 213-234. Cherp, A. 2001. EA legislation and practice in Central and Eastern Europe and the former USSR: a comparative nalysis. Environmental Impact Assessment Review, 21, 335–362. Espinoza G. and Alzina, V. ed. 2001. Review of environmental impact assessment in selected countries of Latin America and the Caribbean; Methodology, results and trends. InterAmerican Development bank; Centre for development studies. Kolhoff, A.J. ,. Runhaar, H.A.C,and Driessen , P.P.J. 2009. The contribution of capacities and context to EIA system performance and effectiveness in developing countries: towards a better understanding. Impact Assessment and Project Appraisal, 27, 258-270. Sadler, B. 1996. International study on effectiveness of environmental assessment: Final report – Environmental assessment in a changing world: Evaluating practice to improve performance. Wood, C. 2003. Environmental Impact assessment. A comparative review. Pretence Hall, Harlow second edition.
Figure 1: Factors influencing EIA systems performance
Context
EIA objectives:
Short term - Well informed decision-making, (excluding public involvement) - Well informed and acceptable decision-making (including public involvement)
Long term
- Environmental protection - Sustainable development
EIA system Regulatory framework & Capacities
Performance
EIA results:
Source: Kolhoff et al. 2009
Output
Direct output - EIA report - Voluntary change of project design - Voluntary withdrawal of proj. unacceptable impacts Indirect output - Change in acceptability by affected stakeholders - Preventive effect - Awareness raising & learning by stakeholders, contributing to local democracy
Outcome
Direct outcome - Forced change of project design - Forced withdrawal of projects with unacceptable impacts Indirect outcome - Change in acceptability by affected stakeholders
Impact
Direct impact - None
Indirect impact - Change in environmental quality - Change in socio-economic situation of affected stakeholders
