Law Excerpts
Environmental Impact Assessment
Comprehensive law is a must
Md. Mostafa Hosain
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Environmental Impact Assessment (EIA) is a procedure of evaluating possible impact on the environment when any proposed projects, activities or undertakings are conducted. It was first introduced in the domestic law of USA, namely US National Environmental Policy Act of 1969.
a. International regime
EIA is defined in article 1(VI) of the Espoo Convention on Environmental Impact Assessment in a Transboundary Context of 1991(the only international convention relating to EIA) as 'a national procedure for evaluating the likely impact of a proposed activity on the environment'. The necessity of EIA has been reflected in Principle 17 of Rio Declaration “EIA, as a national instrument, shall be undertaken for proposed activities that are likely to have significant adverse impact on the environment.” The UNCLOS 1982 required EIA to be undertaken under Article 206. International dispute settlement bodies have also taken a strong position for undertaking EIA. The issue has been dealt with by ICJ in the Gabcikovo-Nagymaros case, 1997, Pulp Mills case of 2010 and ITLOS dealt with MOX Plant Case of 2001 and Land Reclamation Case of 2003. The World Court in Pulp Mill case declared, “The obligation has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact” (Para 204).
EIA has been articulated in most of the developing states after being party to the Convention of Bio Diversity (CBD). Each contracting party is required to set up EIA of proposed projects that are likely to have significant adverse effects on biodiversity for the purpose of avoiding or minimizing the effect. The requirements provided in this convention are also supplemented by decisions of the COP. Decision IV/10 called upon the parties to submit to the secretariat impact assessments reports on the effectiveness of EIAs, reports relating to national legislation on EIAs.
b. i. EIA under the laws of Bangladesh
The Environment Conservation Act, 1995 is potentially the most pertinent law in this regard. Section 12 of the ECA provides that “no industrial unit or project shall be established or undertaken without obtaining in the manner prescribed by rules, an Environmental Clearance Certificate from the Director General.” So ECC is mandatory and within ECC procedure, EIA is a step to be followed for a few specified industries.
The Environment Conservation Rules, 1997 requires to take ECC for undertakings industrial units and projects. Rule 7 of ECR, 1997 categorised all industrial units and projects into four i.e. green, orange-A, orange-B and red and EIA is required mandatorily in “red category”. Under Schedule -1, there are 69 types of industrial units categorised as “red”. According to Rule 7(6) (d) (ii) of ECR, 1997; for approval of the Department, the entrepreneur shall submit EIA report prepared on the basis of program outlined in IEE Report along with the time schedule and ETP design. For an ECC, the entrepreneur shall apply to the Concerned Divisional Officer of the Department in Form-3 along with appropriate fees prescribed in schedule-13. In form 3, serial number 13 (a) is the required mandate for IEE and EIA. So EIA is mandatory step to get ECC for undertaking or establishing “red categories” industrial unit or project. Where the application will be received under rule 7(9) (d), the EIA report shall be approved or rejected within sixty working days mentioning appropriate reasons. After approving of EIA, the Entrepreneur shall open L/C for importing machine and apply for ECC. Although for other three categories EIA is not mentioned to be taken, but in case of “Orange-B” category certain steps are to be followed called “report on the feasibility of the industrial unit or project and report on the Initial Environmental Examination of the industrial unit or project.” This issue of environmental examination falls under the broad spectrum of EIA. Now coming to the violation aspect, for the infringement of section 12 of the ECA, section 15 in column 8 specified “imprisonment not exceeding 3 years or fine not exceeding 3 lac taka or both”. Under section 15A of the Act all belongings used in the commission of the offence may be confiscated.
b. ii. EIA under National Environment Policy
Policies are not laws according to article 152 of the Constitution of Bangladesh. These policies have binding impact on the activities of Government agencies and therefore, can greatly influence in the shaping of national environmental regimes. The National Environment Policy of 1992 required to undertake EIA in case of all new industries of government and private. Principle no. 3.4.3.of NEP states that in energy and fuel sector, EIA is required only before using nuclear energy or nuclear radiation. It did not include EIA in every stage of lifecycle of the gas related project. In water development and flood control and irrigation, It demands undertaking EIA before taking any plan regarding water development and its management. In transport and communication field, safe transport and communication by road, rail, air and internal navigation system must be ensured from pollution of environment of the concerned and before implementing or undertaking projects of this type; EIA is required to be taken.
Although our legislations mentioned above have encompassed the EIA regime, there are a few issues yet to be clarified. First, the procedure is not clear as to how EIA would be conducted and by whom it would be taken. Second, international environmental law has now required two categories of EIA procedure i.e. EIA at the time of initiation of projects and periodical EIA. There is no specific mechanism under our domestic law covering the second category. Third, it has to be considered now that whether EIA procedure is to be inserted in 'Orange-B' and 'Orange-A'. In order to establish transparency and fairness in the EIA procedure, every steps has to be clear and written. The provision of good faith under section 18 of Environment Conservation Act, 1995 has to be reviewed because without proper EIA procedure, ECC under this section can be issued. Since policies have no enforceability, some of the important aspect of policies can be taken into law. Furthermore, under The Brick Burning (Control) Act, 1989 and Brick Burning (Control) Rules, 1989, EIA requirements are suggested to insert within its license process. According to the existing framework, only Initial Environment Examination is required.
The writer is an Advocate, Judge Court Dhaka.
