After the industrial revolution, development projects have been rapidly coming up in various ways. Most of the resources needed for development in world come from its environment. So, it is imperative that environmental resources are conserved and enhanced to sustain development. It is important to have a comprehensive Environmental Impact Assessment (EIA) law and policy to ensure successful convergence of conservation and development. United States was the first country to develop a system of EIA[1]. After Rachel Carson’s “silent spring” was published in 1962, social awareness to environmental issues in the US had reached high proportions and grew as very intense movements.
With those social and environmental backgrounds, the National Environmental Policy Act (1969) of the United States of America (NEPA) was constituted and for the first time, EIA requiring environmental consideration in large-scale projects was enforced as legislation. Due to its influence, the concept of EIA spread to Europe and Asia. Then onwards, several countries began to provide EIA systems. Australia introduced the EIA process in 1974, Thailand in 1975, France in 1976, the Philippines in 1978, Israel in 1981 and Pakistan in 1983. Environmental impact Assessment is defined as one of the important integrated tool to identify the impact of development project on the environment, on man and well-being of legislative proposals, projects policies, and operational procedures and to interpret and communicate information. Both Primary and Secondary impacts during the construction stage and functioning stage will be considered for this assessment. The purpose of this research paper is to discuss how the EIA procedure is implemented in the jurisdictions of Sri Lanka and Nepal; these countries are from the South Asian region. Accordingly it is hoped to make a comparative analysis of the way the EIA procedure works in the judicial systems of Nepal and Sri Lanka.
Sri Lanka is a small island with rich Biodiversity and resources of natural beauty. As a developing country, Sri Lanka has given its priority to economic development to raise the standard of living of its citizens. The share of private sector-based development projects has been increasing rapidly in recent decades in Sri Lanka. Most of the resources needed for Sri Lanka’s development come from its environment. Thus, environmental resources are mainly affected during development activities. To achieve the Sustainable Development Goals, conservation and enhancement of environmental resources is essential. This fundamental axiom, expressed in the concept of sustainable development, forms the basis for the National Environment Act. An amendment to this Act introduced an internationally recognized process called Environmental Impact Assessment (EIA) as part of the strategy to achieve sustainable development. EIA has become a mandatory requirement for national as well as international acceptance of development projects. Sri Lanka’s EIA was first introduced by the Coastal Conservation Act No. 57 of 1981. The EIA has been authorized by Section 4(C) of the Act to carry out an Initial Environmental Investigation (IEE) by Special Gazette Notification No. 772 dated 24.06.1993 and Special Gazette Notification No. 1159/22 dated 22.11.2000.
The EIA process consists of six steps. Accordingly, the first step is, project proponent has to find out whether the project proposal falls within the “prescribed project”[2] list by verifying with the Central Environmental Authority (CEA) or referring to the Government Gazette No. 772/22 of 24.06.93, 859/14 of 23.02.95, 1104/22 of 06.11.99 and 1108/1 of 29.11.99. Therefore CEA provides the project proponent with a Basic Information Questionnaire (BIQ) to submit essential information of the project in order for CEA to determine the above. The project proponent can obtained BIQ from the EIA Unit of the CEA Head Quarters or the Provincial or District offices of the CEA. And also project proponent can be downloaded from the CEA website. If the proposed project is a prescribed project requiring EIA/IEE, then CEA will determine which will be the appropriate Project Approving Agency (PAA) for administering the EIA/IEE process. Then after PAA will guide the project proponent in preparation of an EIA/IEE. If the project is located within the coastal zone, then the project proponent should contact the Director General, Coastal Conservation Department. If the project is located within one mile from the boundary of a National Reserves, the project proponent should contact the Director General of Wildlife Conservation.
Accordingly, attention should be paid to what are the Project Approval Agency. The PAA which can grant approval for IEE / EIA as set out in the Gazette Extra Ordinary No. 859/14 of 23.02.95 and Gazette Extra Ordinary No. 1373/6 of 29.12.04 are given below. They are,
- The respective Ministries to which the assigned with the, National Planning, Irrigation, Energy, Agriculture, Lands, Forests, Industries, Housing, Construction, Transport, Highways, Fisheries, Aquatic Resources and Plantation Industries.
- The Department of Coast Conservation.
- The Department of Wildlife Conservation.
- The Department of Forest
- The Central Environmental Authority.
- The Urban Development Authority
- The Geological Survey and Mines Bureau
- The Ceylon Tourist Board
- The Mahaweli Authority of Sri Lanka
- The Board of Investment (BOI) of Sri Lanka
The second step is the subject determination. Environmental scoping is an early and open process for determining the scope of issues to be addressed and for identifying the significant issues related to a proposed project. The Project Approval Agency will invite all concerned agencies, the project proponent and other interested persons such as Housing Development Authority, Environment Authority, Cultural, Agricultural Services, Forest Conservation (if necessary) for the scoping process. The PAA will issue the Terms of References (ToR) for the EIA/IEE after the scoping process. If the environmental impact caused by the project is not so strong, the IEE is conducted because it is a relatively short and simple study, and if the project has a strong environmental impact, EIA is carried out.
Third step is preparation of EIA report. It is the responsibility of the project proponent to prepare the EIA report and to submit it to the PAA for evaluation. In this step, project proponents may require the services of a team of consultants as many specialized areas have to be covered for preparation of EIA reports. A list of consulting firms that prepare EIA reports is available at the CEA. In addition to this, project proponents may use the services of suitably qualified consultants who may not have registered with the CEA. It is noteworthy, that project proponent should obtain the services of reliable and adequately qualified experts in the relevant field, in order to ensure that the EIA reports do bear the required standard.
On receipt of an EIA report, it will be subject to an adequacy check in order to ensure that the ToR issued by the PAA has been met. The next step is to open for public inspection / comments for a period of 30 working days as per 23bb (2) of the National Environment Amendment Act No. 53 of 2000.[3] If there are any public comments on the published EIA report, they will be sent to the project proponent for response. Subsequent to the public commenting period the PAA will appoint a Technical Evaluation Committee (TEC) to evaluate the EIA report and make its recommendations.[4] Here, residents of the area affected by the project, non-governmental organizations, the private sector, people with expert knowledge of the relevant event, women, children, local people, etc. can comment on any party.[5]
Based on the recommendation of the Technical Evaluation Committee, the PAA makes their decision on whether to grant approval for a project. If the PAA is not the CEA, it should obtain the concurrence of the CEA prior to granting approval.
If the project proponent doesn’t agree with the decision, he/she has a right to appeal to the Secretary to the Ministry of Environment.[6] The decision of the Secretary to the Ministry of Environment is final.[7] After that, according to 23bb (4) of the Act, this should be published in the Gazette and newspapers published in all the three languages.[8]
Compliance monitoring is the final step on EIA process. EIA approval is generally given with conditions which the project proponent is expected to meet. The CEA or the PAA will monitor the implementation of conditions or mitigation measures. If the project proponent violates the conditions, the approval may be revoked.
EIA in Nepal
Before discussing the EIA system of Nepal, it is better to know about the geographical feature of Nepal. Nepal is a landlocked country in South Asia.
It is mainly placed in the Himalayas, but also includes parts of the Indo-Gangetic Plain, bordering the Tibet Autonomous Region of China to the North, and India in the South, East, and West, while it is narrowly separated from Bangladesh by the Siliguri Corridor, and from Bhutan by the Indian state of Sikkim.[9] Nepal has a diverse geography, including fertile plains, subalpine forested hills, and eight of the world’s ten tallest mountains, including Mount Everest, the highest peak on Earth. During the triennial review held by the United Nations Committee for Development Policy (CDP) in February 2021, Nepal was recommended for graduation from the Least Developed Country (LDC) category.
Along with economic development came the need to minimize the impact on the environment through development projects in Nepal. As being the state party to different international conventions and treaties relating to environment, development and sustainable development, Nepal government has established EIA system for developmental projects with the formulation of Environmental Protection Rules, sectorial policy, laws and guidelines.
In the development planning history of Nepal, the Sixth 5-year Plan (1980-’85) had first time recognized the need for EIA for major infrastructure projects. In 1982, Nepal established the Environmental Impact Study Project (EISP) under the Ministry of Forests and Soil Conservation to initiate activities for the formulation of necessary policies and laws and create public awareness on the environmental matters. In seventh 5-year plan (1985-1990), Nepal government articulated environment conservation related policies. In order to enforce this policies were developed incorporating the elements of environment factors right from the project formulation stage of development plans. Environmental Assessment Guideline 1993, was the first ‘lesson learnt’ document in Nepal which has played facilitation role in the EIA process. In 1995, separate EIA guidelines for forestry and industry sectors had also enacted.
Though there is no explicit constitutional provision stating EIA, but there are certain provisions which importantly relates to this subject. In Article 30[10], Article 30(1)[11], Article 30(2)[12], Article 30(3)[13] have directly concerned with the EIA for any huge development project. Similarly, under the Policies of the State, Article 51[14] has also stated the notion of EIA.
The landmark decision of the Supreme Court of Nepal[15] mentioned that, even though, the current laws seem to be erratic, inadequate and ineffective, it seems that laws need to be enacted to cover all aspects of the environment. This decision has instructed the then government of Nepal, which resulted the enactment of Environment Protection Act, 1997 A.D. (2053 B.S.), now Environment Protection Act, 2019 A.D. (2076 B.S.) has succeeded to it. The existing Environment Protection Act has clearly iterated on EIA under Section 3 to Section 14.
The existing Forest Act, 2019 A.D. (2076 B.S.), Section 2(w) clearly states that, “environmental examination” means the brief environmental study, initial environmental examination and environmental impact assessment to be carried out pursuant to the prevailing laws. The other provisions under Section 42(3), Section 44(2) also states for environmental examination before launching any development project. Similarly, Solid Waste Management Act, 2019 A.D. (2076 B.S.) and Industrial Enterprise Act, 2019 A.D. (2076 B.S.) have also mentioned the necessity of EIA and Initial Environmental Examination (IEE).
In examining the procedure for obtaining EIA in Nepal, it has been enforced by the Environmental Protection Rule of 1997. The First and Second Schedules of the Safety Regulations 1997 provide information on environmental impact assessments. In order to obtain it, the project proponents should first prepare a document about the scope of the project and hand it over to the relevant authorities. Then the scope of the project in accordance with Rule 4.1 should be kept open to the public for 15 days.[16] According to Rule 5.2, the project proponent should subsequently prepare and submit the EIA. The next step in the process is approval as proposed or with amendments. One notable exception here is that Social Impact Assessment is also included in the EIA as per Rule 7.1. Accordingly, the EIA report includes the loss of livelihood, the loss of people’s habitats and land, and the impact on a shrine of religious and historical value in this issue. Also public comments are accepted at the project site as stated in clause 7.2. Then 11.1 will be checked thoroughly and ten copies of EIAR will be handed over to the Ministry of Environment with their observations and opinions. 11.2 As per rule, a notice shall be published in a national newspaper, keeping open for public comments and suggestions for 30 days. The next step is to get approval for the project. After that, environmental monitoring and informing the Ministry of Environment about the guidelines given to a project proponent is done under Rule 13. Under Rule 14, there is a provision to conduct an environmental audit two years after the commencement of the relevant project.
As per the cumulative information above, a comparative commentary on the EIA laws of Sri Lanka and Nepal needs to be made.
The main example that can be obtained in the process of obtaining Nepal EIA is the matter related to PAA. That is, in most cases in Sri Lanka, the project proponent and PAA are the same entity. According to this issue, the project proponent for the construction of a highway is the Ministry of Highways and the Ministry of Highways is the PAA. It is not practical. But in Nepal, the Ministry of Environment directly intervenes in this. The Ministry of Environment acts as PAA for all the projects. Another unique feature is the direct public participation that is sought at several stages of the EIA process. Nepal consults public opinion at the beginning of a project. In that way, it would be a good trend if Sri Lanka is also able to get public opinion in the initial steps of obtaining EIA. Also in Nepal the project proponent visits the field and gathers public comments/opinions. Then there is a possibility to get written and oral opinions of the general public. In Sri Lanka, only written public comments will be considered and there will be no public consultation in the field. Oral testimony also has the potential to elicit actionable opinions even from illiterate members of the public. More space is also allocated to social impact assessment in Nepal. Social impact assessment analyzes the positive and negative impacts of the project on society. Social impact assessment has not been given much importance in Sri Lanka’s EIA. In Nepal, EIA and IEE should be prepared at the beginning of this procedure. It can reduce the complexity of the procedure. Foreign experts’ assistance is sought to conduct FIA in Sri Lanka. But EIA is done by local experts in Nepal.
The most important attribute when considering EIA in Nepal is its transparency. Nepal’s EIA reports can be studied online. But in Sri Lanka, the public have no access to study an FIA report so easily. Unlike in Nepal, the process of approving a project in Sri Lanka is complicated and time-consuming. Due to this, urgent projects cannot be prevented from being delayed. After the implementation of the project, there is no follow-up. But, in Nepal the time frame is constitutionally specified and approval should be obtained only from the Ministry. After the implementation of the project, a mandatory follow-up is done. In Sri Lanka, EIAs are carried out by government-affiliated institutions, so there is bias. Since there is a change of policies during the change of governments from time to time, development processes are also hampered. Sri Lanka’s environmental policy is not parallel with the national policy. It can also be seen that projects carried out without EIA caused a lot of environmental damage.
Conclusively, as stated in the Article 30 of the Constitution of Nepal (2015) that “every citizen shall have the right to live in clean and healthy environment”. It is a very important and positive feature. There is no doubt that the formality and transparency directly led to EIA process in Nepal, but the right to live in a healthy environment in Sri Lanka is not directly stated in the Constitution.
Governments of both the countries should take necessary steps and impose the laws to fulfill the objectives of the environmental principles of precaution, sustainable development, intergenerational equity, public trust principle, polluter compensation, maximizing environmental and economic benefits and minimizing irreversible damage through obtaining and considering an internationally accepted environmental impact assessment. The nature gives life and the nature takes the life too. Thus, it is a responsibility and should be concerned by each stake holders of this universe.
Laxmi Sharma
(Laxmi Sharma is a citizen of Nepal and she holds a Ph.D. – research scholar in faculty of law at South Asian University, New Delhi, India. Also she is an assistant Professor at the Faculty of Law, Nepal Law Campus, Tribhuvan University. She did her Master’s Degree in Public International law from University of Oslo, Norway in 2012 and also the first to be conferred with the Master’s Degree in Law in International Law and International Human Rights law from Tribhuvan University in Nepal in 2008. She has engaged in her teaching profession and teaches Public International Law, International Human Rights Law, and International Humanitarian Law in Bachelor’s and Master’s level. She had published many articles relating to public international law in various journal of academic and research institute. Attended several conferences and seminars in several countries including International Visitor Leadership Program, United States Department of State, Bureau of Education and Cultural Affairs, “US JUDICIAL SYSTEM II”, organized by American Government (US Embassy in Nepal), Enforcement of Economic Social and Cultural Rights Judgments in Bogota, Colombia, Organized by Los Andes University of Colombia, China-South Asia Legal Forum Kunming, China. Advanced Seminar in International Humanitarian Law for University Lecturers and Researchers, organized by the International Committee of the Red Cross (ICRC), Geneva, Azerbaijan and so on).
Dulmini Sarashika Ekanayake
(Dulmini Sarashika Ekanayake is a proficient Colombo-based independent multi-disciplinary researcher. She obtained her Bachelor of Arts (Hons.) Degree in Business Statistics at the University of Sri Jayewardenepura and pursuing Bachelor of Laws (LLB) at The Open University of Sri Lanka. She excels in research areas mainly related to Law, justice, Geopolitical and Data science).
Photo Credit – www.climatechange.environment.nsw.gov.au/bushfires
[1] https://www.env.go.jp/earth/coop/coop/document/10-eiae/10-eiae-2.pdf (last visited Feb. 06, 2023)
[2] National Environment Act No.47 of 1980, part IV C
[3] National Environmental (amendment) Act No.53 of 2000, s 23BB(2)
[4] National Environmental Act No.47 of 1980, s 4(2)
[5] Kandalama Hotel Project; The Upper Kotmale Hydro Power Project; Colombo Katunayake Expressway; Trincomalee Coal Power Project
[6] National Environmental Act No. 47 of 1980, s 23BB(4)
[7] ibid,s 23DD; Rajawela holdings (Pvt) ltd,[1994] 1 SAELR 155
[8] National Environmental Act No. 47 of 1980, s 23BB(4)
[9] https://nepal.gov.np/ (last visited Nov. 01, 2022)
[10] Article 30 of the Constitution of Nepal (2015), Right to clean environment
[11] Article 30(1) of the Constitution of Nepal (2015), Every citizen shall have the right to live in a clean and healthy environment.
[12] Article 30(2) of the Constitution of Nepal (2015), The victim shall have the right to obtain compensation, in accordance with law, for any injury caused from environmental pollution or degradation.
[13] Article 30(3) of the Constitution of Nepal (2015), This Article shall not be deemed to prevent the making of necessary legal provisions for a proper balance between the environment and development, in development works of the nation.
[14] Article 51 of the Constitution of Nepal (2015), Policies relating to protection, promotion and use of natural resources
[15] Surya Prasad Dhungel vs. Godawari Marble Industry Pvt. Ltd. (NKP Special Edition 1995 A.D. (2052 B.S.)) p.169
[16] Nepal Environment Protection Rules 1997 (2054), s 4(1)
