EIA:Looking Forward

Nepal's legal system on EIA guarantees to cover all aspects (physical, chemical, biological, social, economic and cultural) in one report. It seems that efforts are underway to make national process on EIA 'weak' and ineffective, and prove this tool inappropriate. It might empower others to regulate our development needs

Issue Name : Vol.10,No 16,April 7,2017 (Chaitra 25,2073)

Globally recognised as a practical, effective, evidence-based, proven and project-level predictive tool to conserve the environment, reduce environmental damages, and attain sustainable development objectives, Environmental Impact Assessment (EIA) is conducted in almost all countries through a prescriptive (legal) or discretionary approach (using indicative guidelines). Environmental assessment is a synthesis of 'facts' and 'values' and provides decision-makers for 'informed choice' to implement environmentally sensitive projects. This tool is being used for nearly half-a-century to identify, predict and evaluate environmental impacts of a project or an activity, and avoid, mitigate or compensate adverse impacts and enhance beneficial ones. It also helps to address trans-boundary environmental impacts in countries that are Parties to the Espoo Convention on EIA (1991). In addition to other initiatives, its use was further ramified in developing and least developed countries after UNEP's Governing Council's decision on EIA in June 1987, principles of 1992 Rio declarations, Agenda 21, and provision of the Convention on Biological Diversity (CBD, 1992). Article 14 of the CBD to which Nepal is a Party obliges the Parties to conduct EIA of any programme or project that will likely adversely affect biodiversity. Section 9 of Nepal Treaty Act (1990) states 'in case of the provisions of a treaty' (to which Nepal is a Party) … 'conflict with the provisions of current laws, … the provisions of the treaty shall be applicable in that connection as Nepal laws'. It indicates the need for compliance of the Article 14 of the CBD. It seems countries took only 2 decades to ratify its use through policy, legislation, administrative decisions or guidelines all over the world.

Experiences and lessons learned show that cost for EIA study ranges from 0.001 to 0.1 percent and adverse impacts mitigation cost is sufficiently below 5 percent of the total project cost. However, this tool is being criticised by some proponents, promoters, investors, sector planners and decision-makers in countries where technical requirements are dealt by non-technical personalities and vice versa. This tool has a well-defined beginning and an end, i.e., starting from screening and ending with environmental auditing. The criticisers consider EIA as an extra-burden, expensive, complex and non-understandable, producing non-useful results and a tool that delays the project construction or anti-development tool in countries like Nepal. Some persons consider Nepal too poor to afford for environmental assessment. It happened so due to low or no understanding on benefits of this tool, or a culture of sectoral development approach.

EIA requires multi-disciplinary approach. Although it depends upon the nature, location and baseline condition of the project area, or as guided by the Terms of Reference, an EIA team normally comprises knowledge-based persons on physical, chemical, biological, social, economic and cultural aspects (key environmental domains) and team should closely work to identify and predict environmental impacts and evaluate the significance of the impact. The core of EIA is the 'evaluation of significance' of beneficial and adverse impacts. Let us consider that diversion of water at intake in hydro-electricity generation project will make certain stretch of river 'dewatered' and this area is rich in fish diversity. The hydropower engineer identifies and predicts mostly beneficial impacts. The socio-economist talks about benefits to local people, including employment and impact to fisherman or fishing community, if any. If project is proposed in forest area, a forest specialist speaks about endangered, rare and endemic plant and animal species and conservation values of the forest area along with national and international commitments on species and ecosystems. A fishery expert advocates on blocking of upstream-downstream movement of a fish species and its life in 'dewatered zone'. Local people and indigenous communities might see the project differently. The investor or the proponent considers these impacts 'insignificant and useless' as compared to his/her investment. Experts and knowledge-based team should decide on criteria for evaluation of significance or insignificance of environmental impacts. Significance would also depend upon weightage given to a specific impact. On this specific case (impact on fish species), physical scientist, conservationist, fishery expert, socio-economist, investor, planner or fisherman might give different weightage depending upon how they value that species. Hence, impact evaluation is also a 'compromise'. Nepal's EIA report has yet to include 'evaluated' impacts. If impact is rated as 'significance', it would be easy to find and select appropriate and cost-effective measure(s) to enhance beneficial and mitigate adverse impacts. As a predictive tool, EIA provides multiple opportunities to avoid costly mistakes and bring adverse impacts to acceptable level. In practice, Nepal's EIA reports are not site-specific but 'generic'.

Nepal included policy requirement for EIA study for major infrastructure projects in mid-1980s. Prior to the implementation of cabinet-approved, National EIA Guidelines in 1993, EIA was carried out for funded road projects and EIA reports were reviewed by funding agencies. The EIA of Bara Forest Management Plan was carried out in mid-1990s using Nepal's EIA Guidelines (1993). This policy process was 'toothed' by the Environment Protection Act (EPA, 1996) and Environment Protection Rules (EPR, 1997) which were commenced on 24 and 26 June 1997 at a time when the present President of Nepal was the Minister for Population and Environment. The Rules prescribe a list of projects requiring Initial Environmental Examination (IEE) or EIA. There is no fundamental difference between IEE and EIA in addressing environmental impacts. Prior to the enforcement of EPA and EPR, the Forest Act (1993) provides clear indication on environmental assessment. Article 68 of the Act has three conditions to provide forest area for any project or activity. It should be a national priority project; if there is no alternative to forest area to implement the project; and if the proposed project does not significantly affect the forest environment, the Government may provide forest area for project implementation. The first condition is met when National Planning Commission ensures it as the national priority project. The latter two conditions are met from EIA study as it analyses alternatives and informs on impact significance.

During the last nearly 2 decades of EPA and EPR enforcement, EIA reports of 276 projects have been approved as of 13 March 2017 (MoPE's website). Of them, 45 percent are from water resources sector, mostly hydropower generation. However, it is difficult to know how many projects have implemented environmental measures and whether proposed measures are effective as environmental monitoring and auditing have yet to inform on compliance and effectiveness of measures. In Modi Khola basin, a number of hydro-projects have constructed fish ladder to ensure upstream-downstream movement of fish species but they all are non-functional due to inappropriate design and location. Implementation of mitigation measures proved ineffective but the proposed measure is not ineffective as it is practiced for low dam projects.  The study team proposed fish ladder without clear knowledge on what to conserve, fish behaviour and movement. Many reports follow 'cut and paste' approach and forget the basic EIA principles while preparing the report. Nepal's legislation recognises the proponent who spent 'modest' budget for EIA report preparation. Unfortunately, s/he might not know what is within the EIA report. Anybody can prepare and/or is engaged in EIA report preparation. Hence, the issue is not related to EIA tool, it is rather related to how it is used and who is using it.

Over 2 decades of experience and lesson learned on legal system on EIA confirms Nepal's maturity to benefit from it. There are several procedural guidelines and guides that provide multiple opportunities to prepare site-specific, quality and implementable EIA report. There are several ways to reduce time required for approval of EIA and associated reports. There are several ways to integrate environmental protection measures, as recommended in the EIA report, into detail design to reduce mitigation cost. There is also an example from Nepal (East Rapti Irrigation Project) how EIA contributes to reformulate and make the project people-centric, environment-friendly and sustainable to meet country needs, commitments and obligations. If EIA tool has no long-lasting benefits why do countries all over the world conduct such study and approve before project construction and/or implementation to address environmental impacts? Furthermore, if it has no benefit why do donors and multilateral development partners oblige countries to conduct EIA and include EIA as a pre-condition for funding? This writer understands the EIA requirements of the multilateral agencies. In one case, EIA report was approved in 31 days of submission to the approving ministry. It means review was completed in 30 days since the EIA report made public based on EPR, 1997.

Recalling 2005 annual conference of the International Association for Impact Assessment in Boston, I asked the Chinese EIA professional how China is promoting EIA and how many EIA reports are annually approved? He told me EIA is an effective tool to attain sustainable development objectives (economic and social development, and environment protection) and over 4000 reports are annually approved nearly 12 years back. At that time, Nepal was approving 4-7 EIA reports annually.

There is no dearth of human resources. Most of the universities and campuses provide 3 credit hours of EIA course. The training centres provide intensive training on IEE and EIA. The Government ministries have Environment Division and EIA Section or mandated divisions or sections to expedite EIA process. The key issue is to mobilise the resources and use 'country capacity' to produce site-specific, quality and implementable EIA report and how to inform proponents and investors that EIA contributes to make your investment people and environment-friendly and sustainable. Nepalese 'can do' as s/he has done outside Nepal.

Time has come to understand ourselves whether we need to strengthen the national system on EIA or we want 'imposed' procedures. Few years of move on 'back gearing' the EIA process has challenged 'country capacity' and left others to decide our 'environmental future'. Nepal's legal system on EIA guarantees to cover all aspects (physical, chemical, biological, social, economic and cultural) in one report. It seems that efforts are underway to make national process on EIA 'weak' and ineffective, and prove this tool inappropriate. It might empower others to regulate our development needs. We should build on what we have or simplify the process, if necessary to improve EIA report quality for 'smooth decision-making' or follow other's EIA requirements. The choice is ours.

Uprety served as the Chief of the Environmental Assessment Section in the Ministry of Environment, and Ministry of Forests and Soil Conservation from 2003 to 2009. E-mail: upretybk@gmail.com

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