Background of amendments to provisions on environmental impact assessment
In recent years, Việt Nam has a high economic growth rate, in some periods, industry, transportation, construction… are in hot development causing pressure on the environment. The amount of wastes discharged into the environment is increasing and there is no proper method of management and use which leads to waste of natural resources and environmental pollution. Pollution, degradation of land, water and air still occur in many places, damaging the economy as well as the whole society. Many projects and production establishments that are likely to pollute the environment have not been strictly controlled, there is still a situation where industrial zones and industrial clusters do not have centralized wastewater collection and treatment infrastructure and craft villages pollute the environment. Việt Nam is also one of the countries heavily affected by climate change. Climate change and sea level rise have occurred faster than forecast, causing many extreme weather events, affecting people's livelihood and life.
Facing environmental and climate change challenges, the need to ensure economic development in parallel with environmental protection, responding to climate change becomes even more urgent. In the current context, the State should have mechanisms to deal with shortcomings and limitations in the state management of environmental protection and climate change response in general, environmental impact assessment (EIA) in particular and provide appropriate solutions to forecast Việt Nam’s future development trend.
New provisions expected to be supplemented, amended
Environmental screening and Preliminary environmental impact assessment
According to the Law on Public Investment, public investment projects, when considering investment policy decisions, must conduct a preliminary EIA. The Law on Investment also stipulates that in the pre-feasibility study reports, for investment projects subject to investment policy decisions by the National Assembly and the Prime Minister, when applying for approval of investment policies, there must be the content “Preliminary EIA and environmental protection solutions”. However, the 2014 Law on Environmental Protection (LEP) does not provide for preliminary EIA, while prescribing EIA to be implemented during project preparation.
The addition of provisions on preliminary EIA to the amended Draft LEP (Draft) is to ensure the consistency in the legal provisions related to preliminary EIA in legal provisions on investment, public investment and environmental protection. However, the Draft LEP (amended) stipulates that preliminary EIA only applies to the following types of projects:
- Public investment projects (including important national projects, Group A projects, Group B projects, Group C projects) with construction components of industrial type that are likely to pollute the environment, except for urgent public investment projects, projects belonging to national target programs and component projects of projects that have investment policies decided by competent authorities;
- Construction investment projects in the form of public-private partnership;
- Construction investment projects other than those specified at Item a of this Clause having investment policies approved by the National Assembly or the Prime Minister or construction investment projects subject to EIA of the Chairman of the Provincial People's Committee to approve investment policies in accordance with legal provisions on investment.
Also, the project screening is conducted based on the national, regional and provincial environmental protection planning, in which there must be orientations and plans to delineate, identify areas in need of conservation, protection and remediation of the environment and ecology.
Legal provisions on environmental screening/preliminary EIA control the environmental impact risks of investment projects in order to guide development activities in accordance with their functions, levels of sensitivity, environmental load-bearing capacity. On the basis of delineation, identify areas in need of conservation, protection and remediation of the environment and ecology nationwide, the production, business and service activities are arranged appropriately in the respective environmental areas, ensuring to make the most of the advantages of using natural resources, helping improve the waste circulation and disposal in reciprocal and inter-related projects. Development activities based on the results of delineation, identification of areas in need of conservation, protection and remediation of the environment and ecology nationwide will avoid environmental conflicts in the exploitation, use of natural resources and waste treatment of production, business and service establishments in the delineated areas.
Implementation of preliminary EIA is a part of the investment policy approval process, not forming a separate administrative procedure for enterprises. The project screening criteria are based on factors affecting the environment on the impacts of projects, instead of just paying attention to the size of investment capital, ensuring that the environmental protection planning provisions are implemented in practice in the direction of science and in line with international practices. The project screening process is conducted based on delineation and identification of areas in need of conservation, protection and remediation of the environment and ecology that helps enterprises save time and effort to locate projects.
Investment projects subject to investment policy approval according to the legal provisions on investment and public investment are determined according to the size of capital sources and the importance of environmental, economic and social issues. However, only construction investment projects or projects having construction components have the potential to cause environmental impacts. Therefore, it will be a waste of resources when requiring projects without construction components (such as cultural, educational development, sport, information technology development projects, etc.) to implement preliminary EIA.
Legal provisions on EIA have been in place for nearly 30 years (since 1993), however, during the inspection and investigation, violations of not complying with approved EIA are quite common, accounting for about 10% of types of violations in sanctioning administrative violations on environmental protection. One of the reasons is that EIA is only a forecasting tool, so it is difficult for an EIA report to be as detailed as possible to quantify and specify solutions to minimize all impacts, risks, environmental and social incidents that can occur throughout the life of a project. Meanwhile, legal provisions on environmental protection are considering approved EIA reports as basis for inspection and investigation, and project owners organize the implementation of environmental protection measures during project implementation.
Requirements assuring EIA preparation capacity of EIA consultants are still problems, leading to the fact that many businesses hire consultants with no professional experience to prepare EIA reports, resulting in insufficient and poor data to make EIA reports not of good quality, not close to actual risks of being sanctioned for businesses when they come into operation.
The process of public consultation during EIA implementation has not been fully conducted, which can lead to indigenous ideas and knowledge of the public not being collected. This may affect the lives of people in the project areas, potentially causing conflicts of environmental benefits when projects are implemented and put into operation.
New legal provisions on EIA are supplemented in the amended Draft LEP (amended) to address the above mentioned shortcomings.
In particular, the Draft stipulates that the decision to approve the EIA report appraisal results is the basis for the competent authorities to carry out the works related to the investment, construction and licensing procedures of the project, and also the EIA tool has a role in the project implementation phase; When project and facility management is in operation, it shall be replaced by other tools such as environmental license and certification of registration of the environmental protection plan.
These new legal provisions have ensured the position, role, promoting the efficiency and effectiveness of EIA tool in environmental management; ensured that EIA tool is a part of investment project screening; contributed to improving the quality of EIA reports and raising awareness and responsibility of environmental protection of businesses.
Currently, after implementing EIA, production, business and service establishments are having to carry out many types of licenses and certificates with the same nature as permits to fulfil their environmental protection obligations. An establishment subject to EIA usually has to carry out the following types of license documents:
+ Confirmation of completion of environmental protection works or certificate of eligibility for environmental protection in importing scrap as raw production materials, license for hazardous waste treatment;
+ License for discharge of wastewater into water sources or license for discharge of wastewater into irrigation works;
+ Register book of hazardous waste generator;
These licenses may be issued by different licensing agencies (MONRE, provincial People's Committees, DONREs, or MARD, DARDs) and sometimes there are inconsistent requirements for legal liabilities and obligations among licenses which make it difficult for establishments to comply with and also difficult for inspection and investigation by State management agencies.
In order to limit the overlap and duplication of licenses on environmental protection to create favourable conditions for enterprises to well fulfill their obligations on environmental protection, and also help State agencies in consistent management of environmental protection, legal provisions on environmental licenses have been added to the Draft.
Environmental licenses are documents issued by competent State management agencies permitting organizations, individuals engaged in production, business, service activities for discharge of wastes into the environment, waste management, import of scrap as production materials together with requirements and conditions on environmental protection in accordance with legal provisions. For those with simpler environmental impacts (corresponding to the EIA appraisal decentralization), registration of environmental protection plan will be carried out.
Environmental licenses are issued based on the dossier of application for environmental licenses, environmental zoning, environmental protection planning, environmental load-bearing capacity (if any), technical regulations and standards on environment and relevant legal provisions on environmental protection.
An investment project must have environmental licenses before proposing the competent State management agencies to appraise basic designs or appraise construction drawing designs. From the effective date an environmental license, the following documents including decision approving the results of appraisal of EIA reports, licenses, certificates, certifications on environmental appraisal of the project are no longer valid.
The consolidation of environmental protection licenses will help environmental protection agencies decide once and for all the environmental issues of production and business establishments (pre-check). This helps make decisions that are comprehensive, more thorough, and more quality. These decisions will indirectly improve environmental quality. In addition, the State will have clearer and more accurate decisions in the inspection and investigation activities because the implementation of a single license will not give rise to situations where granted licenses have inconsistent legal requirements, obligations and liabilities.
For businesses, having to comply with only one license helps businesses be more proactive in complying with legal provisions, avoiding the legal risks of administrative sanctions for failing to comply with legal provisions in granted licenses in cases where licenses are granted with inconsistent legal requirements.
Some issues that need further discussions
About preliminary EIA
According to the provisions of the Draft LEP (amended), preliminary EIA is carried out during the phase of pre-feasibility study or investment policy proposal of the project; Preliminary EIA results are expressed as part of the pre-feasibility study report or investment policy proposal report. In fact now, all investment projects, when proposing investment policies, have investment reports, including contents of environmental impacts (an item or a chapter of the investment report, depending on the size and nature of the project). International practices also stipulate that every project must conduct preliminary EIA (or initial EIA) to provide the basis for investors to self-screen projects, and authorities to classify and manage projects when making decisions.
At present, the Draft LEP also stipulates the classification of investment projects for management according to EIA tool and environment licenses, specifically: Investment projects must only implement EIA in the project preparation phase and must not have an environmental license; Investment projects must implement EIA in the project preparation phase and must have an environmental license before the trial operation of the project's waste treatment facility (project implementation phase); Investment projects must not implement EIA but must have an environmental license in the project preparation phase; The project must not comply with the provisions of Clauses 1, 2 and 3 above. However, there is no clear provision on which agency to classify, when and on what basis to classify such investment projects.
Therefore, should the consideration of the requirement that projects subject to preliminary EIA be all investment projects, so that the authorities when considering the documents on which investment decisions are based, including project classification, carry out environmental procedures in the next phase?
Biodiversity impact assessment and offsets in EIA
Việt Nam is recognized as one of the 16 countries with high biodiversity in the world, with many types of ecosystems and species. The beautiful natural landscapes of Việt Nam have been attracting many tourists from around the world. However, Việt Nam is facing the risk of biodiversity degradation and strong ecological imbalance, and many incidents of destruction/disruption of all or part of the landscapes have occurred at the same time. The cause of this situation is due to population growth pressure which leads to overexploitation of biological resources, which is not guaranteed for regeneration. These activities may have immediate economic and social benefits, but have been leaving or leading to negative consequences in the long run.
Most of the planning, plans, followed by investment projects are only concerned about socio-economic goals but have not paid adequate attention to nature conservation and bio-diversity. Production and business projects have been causing biodiversity losses due to land encroachment and habitat loss of species. International experiences show that, when implementing a development investment project that causes biodiversity loss, it is necessary to take measures to offset, renovate and restore the biodiversity in that area or elsewhere to ensure the maintenance of lost biomass value. In biodiversity impact assessment (as a part of EIA), the decentralized system to minimize negative impacts on biodiversity is considered a best practice approach to managing biodiversity risks.
Under the mitigation hierarchy, firstly, efforts should be made to prevent or avoid negative impacts on biodiversity; after that, implement new mitigation measures; (iii) then restore to the original state of the environment (including biodiversity and often difficult to achieve 100%); according to the calculation after completion of mitigation, if there are any significant impacts - degradation that should be solved through biodiversity offsets (compensation) to achieve “No net Loss in Biodiversity” by enhancing, creating and/or protecting local biodiversity (habitat) or another location with similar ecological characteristics. The ultimate goal of biodiversity offsets is to create an ecological balance during human development so that existing biodiversity is not lost, not degraded, and in some cases can be enriched (Net Gain) for sustainable development goals.
In addition, in some cases, lack of appropriate assessments of the project's impacts on natural resource use leads to allowing the implementation of projects with potential impacts beyond the load threshold of ecosystems, the exploitation threshold of biological resources, making ecosystems and biological resources unable to recover, regenerate, and lose important functions. Currently, the EIA content also has provisions to forecast and assess the impacts of biodiversity degradation, however, there is no specific provision on the impacts on biodiversity, as well as no specific provision on the implementation of biodiversity offsets as a mitigation measure to be proposed in the EIA.
Assessment of climate change risks in EIA
Việt Nam is one of the countries that are and will be seriously affected by the impacts of climate change: saline water intrusion, inundation, land loss, biodiversity loss, degradation of water resources, soil and environmental quality, negatively affecting socio-economic development.
The project level is particularly important for considering climate impacts and risks to incorporate appropriate adaptation measures. If we neglect to consider the risk impacts of climate change on urban, industrial and infrastructure development projects, it may affect the vulnerability of natural systems and humans, leading to damaging the development process of the country and the project itself.
In fact, the environmental impacts of a project are consequences not only of the nature of the project (capacity, design, technology, raw materials, fuel, management, etc.) but also on ambient environmental conditions (eg, topography, altitude, rainfall, temperature, storm, flood...). Therefore, never ignore the risk assessment due to climate change during the EIA process for a project, which must contain sufficient information about the natural and ecological characteristics of the project area. An assessment of the impacts of climate change on the project is only accurate when accurate information on background environmental conditions is obtained.
Project appraisal decision makers must also consider the impacts of climate change on the project itself and assess whether these impacts are integrated with other impacts, exacerbating environmental consequences or creating new risks.
At present, the EIA approach in Việt Nam is the research to identify and forecast the environmental impacts of investment projects and to offer solutions and measures to minimize negative impacts, with regard to the impacts of the projects on the environment, little (almost no) concern is about the opposite impact - from the environment to the projects. Even the content of risk assessment of environmental incidents will only specify the identification and forecast of negative impacts of the projects that may cause environmental risks and incidents. Climate change risk assessment is the identification of hazards and the degree of impacts of climate change and on climate change, determining the corresponding consequences. This means that when assessing climate change risks in EIA, consideration should be given to two-dimensional impacts: impacts from projects to climate change and impacts from climate change to projects.
Many countries and international organizations have recognized that due to the lack of detailed requirements on the integration of climate change considerations into EIA, EIA cannot serve as a sufficient tool to consider and assess the impacts and adaptive capacity of the projects with impacts caused by climate change and with the project's impacts on global climate change.
Social impact assessment in EIA
The amended Draft LEP mentions identification of the direct impacts of the projects on socio-economic activities, social issues and human health in the scope of potentially affected space by the projects. However, there are many complex social factors such as relocation of households for land clearance, livelihoods, customs, religious beliefs, community separation, that need for other methodology to assess the impacts corresponding to EIA methodology. The use of EIA method in social impact assessment may lead to limitations that increase social risks during project implementation, that do not guarantee the sustainability during project implementation with risks of social insecurity.
The introduction of provisions on social impact assessment needs to have clear criteria in order to apply appropriate impact assessment methods, contributing to the consensus of the people in the project areas, so that businesses can avoid the risks of complaints, grievances and compensation for environmental damages due to not taking into account the social factors for the affected communities when implementing EIA.
Dr. Lê Hoàng Lan
Vietnam Association for Conservation of Nature and Environment
(Nguồn: Bài đăng trên Tạp chí Môi trường số Chuyên đề Tiếng Anh II/2020)