Environmental Impact Assessment Ordinance
(ACE-EIA Paper 14/2001)
For information
Observations About the Statutory EIA Process
Arising from the Appeal Board Determination
Purpose
The purpose of this paper is to summarize the key observations about the statutory EIA process arising from the Determination handed down by the EIA Appeal Board on 30 July 2001 regarding the Sheung Shui to Lok Ma Chau Spur Line case, and the possible implications for future operation of the EIA Ordinance (EIAO).
Advice Sought
2. Members of the ACE EIA Sub-committee are invited to note the observations.
Background
3. The Spur Line is a Designated Project under Schedule 2 of the EIAO. On 16 October 2000, the Director of Environmental Protection (DEP) decided not to approve the EIA report and not to issue an Environmental Permit for the Spur Line.
4. On 10 November 2000, KCRC lodged two appeals to the EIAO Appeal Board against DEP's decisions not to approve the EIA report and not to issue an Environmental Permit. An Appeal Board was set up and chaired by Mr. Barry Mortimer, with Professor Joseph Lee and Mr. Stanley Yip as members. The Board heard the case for 27 days between April and June 2001, and handed down its Determination on 30 July 2001 dismissing both appeals.
5. EPD has reviewed the implications of the Determination for the statutory EIA process. Upon members' request, this paper is prepared to summarise the key observations arising from the Determination and the suggested follow-ups to facilitate Members' discussion.
General EIA Process Principles Mentioned in the Determination
6. When considering the submissions from both sides and the evidence on appeal, the Appeal Board has mentioned in the Determination some general EIA process principles that are noteworthy:
(a) the underlying aim of the impact assessment process is to ensure that no designated project is undertaken unless it is shown to be environmentally acceptable;
(b) while the end result is important, this is achieved by a series of steps in the process which lead to the decision whether to approve the EIA report and grant a permit. Each stage is important. The Technical Memorandum (TM) provides the detailed criteria to be applied to each stage;
(c) public participation in the process prior to DEP's approval or rejection of the report is an important step in the process;
(d) the basic principle is that major proposals which are not assessed in the report must at least be the subject of a further assessment and an amended report for further exhibition for public consultation and re-submission to the ACE; and
(e) it is necessary in the implementation of the EIA process that the public interest in both protecting the environment and ensuring efficiency in decision making for major projects should be kept in mind. It is important that the process is implemented in a certain, efficient and timely manner.
Key Reasons for Dismissing the Two Appeals
7. The Appeal Board had considered substantial submissions from both sides during the appeal process. The two appeals were dismissed by the Appeal Board for the following key reasons which are useful references for the future:
(a) the report cannot be approved without it being amended to include all new and significant proposals that have emerged since it was prepared;
(b) the validity of the assessment in the report will be affected by the new proposals. These new matters should be confirmed and assessed as part of the study and report;
(c) it is not the intention of section 4.5.2 of the TM that either DEP or the Appeal Board should exercise their discretion for major new proposals of the kind under consideration to be accepted with conditions as a substitute for amendment of the report, its re-exhibition for the public and its re-submission to the ACE;
(d) new proposals of this nature at the appeal stage circumvent the assessment process laid down in the Ordinance and TM. In particular, they circumvent proper public participation and the participation of the ACE; and
(e) the report, when approved, must be entered in the register and hence acquires a special status. For major new proposals, it is not appropriate to substitute detailed conditions for assessments which must be in the body of the report and available for future reference. It is necessary to set an appropriate standard for EIA reports in the register.
Key Observations/Suggestions Made by the Appeal Board
8. Apart from the decision mentioned above to dismiss the appeals, the Appeal Board made certain suggestions and observations for future reference. These observations would need to be read in the context of the full Determination handed down by the Appeal Board on 30 July 2001. It is important to note that each project is different in terms of the likely environmental issues they may give rise to and the environmental characteristics of the site(s) in question, and should be considered on a case-by-case basis. Key suggestions and observations about the statutory EIA process are summarised in paras. 9 - 13 below.
Assessment of Alternatives
9. The Board was mindful that in the case of the Spur Line where the dominant issue is about ecology, the issue of consideration of alternatives bears very much upon the guiding principles in sections 3.1(a) and 5.4.1(a) of Annex 16 and section 4.3.1(d) of the TM. It is therefore important not to generalize the observations herewith for other projects which might be of different nature and involve different issues. Section 3.1(a) of Annex 16 of the TM reads:
"areas and/or habitats of ecological importance (e.g. those listed in Note 1 and 2 of the Appendix A) shall be conserved as far as possible. Any project that is likely to result in adverse ecological impacts in areas of ecological importance shall not normally be permitted unless the project is necessary; it has been proven that no other practical and reasonable alternatives are available and, adequate on-site and/or off-site mitigation measures are to be employed;"
10. The Board was of the view that certainty on the nature of alternatives to be studied at an early stage must be beneficial to the process, and where possible the EIA study brief should be specific about the possible alternatives to be investigated in an EIA study.
11. The Board stressed that what is required is a careful but balanced approach which takes into account all the circumstances. In assessing whether an alternative is practical and reasonable, the Board considered that the matters which must be considered in assessing whether an alternative is "practical and reasonable" include adverse environmental impacts, engineering constraints, extra-time involved, additional cost and even government policy.
12. While the Spur Line case is related to the ecological issues, other projects might result in other adverse environmental effects. When the project is likely to result in adverse environmental effects (e.g. noise impacts, ecological impacts, water quality impacts due to mud disposal, landscape and visual impacts, fisheries impacts etc), there are provisions in the TM and its annexes requiring assessment of alternative alignment, different siting, alternative layout, alternative programme, alternative construction methods, alternative land use, and alternative designs.
13. Based on the observations from the Determination of the Appeal, from the wording in the provisions in the TM, and from the structure of Schedule 2 and 3 of the EIAO where designated projects are grouped into different categories, general guidance can be drawn along the following line after further discussion with parties concerned:
(a) the need for consideration of alternative arises if the project is likely to result in adverse environmental effects. In other words, if the project is unlikely to result in adverse environmental effects, the need for consideration of alternatives does not arise under the EIAO;
(b) in the context of the current structure of the Schedule 2 and 3 of the EIAO (in the sense that proponents apply for environmental permits or EIA report approvals by virtue of the project being a certain category (or categories) of Designated Project under Schedule 2 or 3) and the wording in the various provisions of the TM, consideration of alternatives would normally be confined to alternative alignment, different siting, alternative layout, alternative design, alternative land use arrangement, and alternative construction and programme, rather than completely different means of achieving the purpose of the project; and
(c) in considering various alternatives, according to the Appeal Board's Determination, the primary consideration is whether applying the precautionary principle the project is shown to be environmentally acceptable.
Approval of EIA Report and Public Participation
14. Section 4.5 of the TM provides DEP and the Appeal Board with a discretion to approve an EIA report with conditions when the report requires amendment but only in circumstances set out in section 4.5.2 of the TM. Section 4.5 of the TM reads as follows:
"Approval of the EIA Report 4.5.1 After the public inspection of the report and, if required, the consultation with the Advisory Council on the Environment, the EIA report shall be approved with or without conditions if
(a) the requirements in the EIA study brief have been met;
(b) the quality of the report meets the requirements as set out in section 4.4 and the results and conclusions are technically sound and reliable;
(c) it addresses relevant environmental issues raised by the public and the Advisory Council on the Environment during the public inspection period; and
(d) all relevant environmental principles and criteria laid down in this technical memorandum can be met and the residual environmental impacts are within the relevant criteria, unless with sound environmental justifications and without long term serious environmental implications.
(e) 4.5.2 In case the report requires certain amendments but such amendments will not affect the validity of the assessment and the overall results and conclusions of the report, the Director may approve the report with conditions."
15. The discretion provided by section 4.5.2 of the TM is to allow the approval of an EIA report with appropriate conditions in circumstances where the report requires an amendment which will not affect its validity and the overall results and conclusions of the report. The Board considered it as a "safety net" provision. It allows approval and therefore allows projects to go ahead in a timely way after a relatively minor oversight, omission, change of circumstance and the like without unnecessarily requiring an amendment which may entail the report being re-exhibited and returned to ACE for comments.
16. The Board considered public participation in the EIA process an important step. On the other hand, the discretion under section 4.5.2 is available and should be used to avoid unnecessary return to the public arena. Without it, the process could become legalistic and inefficient. However, having said that, the Board opined that with major new proposals which are not assessed in the EIA report, it is not open to the Board (and thus DEP) to properly exercise its discretion under section 4.5.2 and approve the report with a set of conditions as a substitute for amendment, proper assessment, approval and registration of an amended report.
Setting Conditions
17. The Appeal Board recognized that DEP will often impose conditions on his approval of both the EIA report and the Environmental Permit. The Board also noted that there is a difference in emphasis between conditions to the approval of an EIA report, which usually are to ensure that matters dealt with in the report are completed, and the conditions to a permit, which are to ensure that the report is complied with before, during and after construction, and the measures defined in the report are carried out.
The Importance of an Approved EIA Report
18. During the hearing, it was proposed that it should be open to the Appeal Board, and thus to DEP also, to grant a permit with conditions without approving the EIA report. The Board, however, considered that except in the various circumstances set out in section 5 of the EIAO, there is no power to grant a permit with conditions even if proposals made after the EIA report render the project environmentally acceptable, but without an approved EIA report which will be subsequently registered under section 15 of the EIAO.
19. Moreover, it is mentioned above that an approved EIA report would acquire a special status by entering into the public register and can be relied upon during the period that it remains relevant for other projects. The Board considered that setting an appropriate standard of EIA reports in the register is necessary.
Appeal Board's Suggestions for Improvement of the EIA Process
20. The EIAO gives the EIA process a legal structure. Yet the Board considered it not a process which lies comfortably within a detailed legal framework, and therefore much of its success depends upon the manner in which it is implemented. The consequence is that all involved are learning how best the various steps required can be implemented.
21. There are two main matters of public interest involved. Both are important. The first is the public interest in the protection of the environment. The second is the public interest in ensuring that major designated projects are brought to fruition in a timely and efficient manner. It is necessary in the implementation of the process that both should be kept in mind. In putting its suggestions for improvement, the Board said that:
" ... Our suggestions are an attempt to advance the process to increase its certainty and effectiveness. In fact, we believe that the object of putting the EIA process into a legal framework is to provide certainty in the process, the roles and timing. If implemented effectively the EIA Ordinance will improve efficiency in decision making for major projects." (page 35 of the Determination)
22. The Board put forward the following suggestions with an attempt to advance the EIA process to increase its certainty and effectiveness:
(a) good communication: The Board considered that the burden of fulfilling the requirements of the EIAO and the TM rests firmly on the proponent but he may require assistance from DEP to clarify his requirements and concerns. To ensure that the process is implemented in a certain, efficient and timely manner, there should be open, ready and frank communication between DEP and the proponent at all stages of the process. The Board considered that cooperation in achieving projects which are environmentally acceptable is the essence of the process.
(b) the Study Brief: The drafting of a study brief follows the exhibiting of the project profile and the receipt of comments from the public and ACE. The drafting of the study brief then reflects the relevant concerns of the public and ACE. The Board saw the brief as the agenda for the rest of the process and where possible the terms of the study brief should be specific rather than general. Where clarification is required, this should be readily requested and helpfully provided.
(c) the decision under Section 6 of the EIAO: The Board stressed the importance of DEP's decision under section 6(3) and opined that DEP must ensure that the report complies with the requirements of the study brief and the TM. An EIA report cannot be allowed for exhibition unless it meets those requirements.
(d) further information after public consultation: DEP may seek further information from the proponent under section 8(1) of the EIAO to facilitate decision-making. The proponent's task under section 4.5.1 (c) of the TM is that the EIA report, which has been exhibited under section 7 of the EIA Ordinance, should address relevant environmental issues raised during the public inspection period. The Board considered it helpful if at that stage DEP indicates what relevant information he requires for his decision. The Board was of the view that in requesting information at this stage, DEP is not confined specifically to matters raised by the public or ACE, as the comments by the public or ACE may lead DEP to require some indirectly related information for his decision.
Follow-up
23. The Appeal Board Determination reinforced the importance and integrity of the EIA process in protecting the environment, and the need to ensure effectiveness, efficiency, certainty and reasonableness of the process and its requirements.
24. In light of the suggestions from the Appeal Board, EPD will further enhance communication with project proponents at various stages of the EIA process through the Environmental Study Management Groups or other mechanisms. The Administration is working out a number of measures to improve the EIA process for government projects.
25. EPD will particularize in the future EIA study brief the concerns and matters that require to be studied, and would in future be specific when seeking further information from the proponents. More attention would be given to the scoping of issues at the stage of public consultation on the Project Profile and the preparation of the EIA study brief.
26. In light of the observations and suggestions made by the Appeal Board, members of the ACE EIA Sub-committee may like to consider the following:
(a) project proponents are encouraged to have informal dialogues with the Sub-committee at the early planning stage to exchange views on preparation of EIA reports, especially about the consideration of possible alternatives, any major environmental concerns that members might have about the project and the EIA study, and the likely environmental friendly designs; and
(b) it would be desirable if there could be focused attention at the stage of Project Profile in identifying key issues to be addressed in the EIA study, and if the comments from members of the Sub-committee during the stage of public consultation on the Project Profile could be specific, so that such concerns and matters could be particularised in the Study Brief to be issued to the proponent.
Environmental Protection Department
October 2001
