Environment Protection Bill 2019: Heavy Punishment for Non-Compliance

Environment Protection Bill 2019: Heavy Punishment for Non-Compliance

May 21, 2019, 12:33 p.m. Published in Magazine Issue: VOL 12 No.20, Jun 07 –27 June, 2019 (Jestha 24, 2076/074-75) Online Register Number: DOI 584

The new Bill on Environment Protection 2019 has proposed to punish with a fine up to NRs. 5 laks, 10 laks and 50 laks for the implementation of any proposal without approval of the 'brief environmental study', Initial Environmental Examination (IEE) and Environmental Impact Assessment (EIA) reports or any act contrary to these approved reports. The concerned agency shall issue directives to comply with the approved reports and the agency shall punish 3 times of the above provisions for any act contrary to the directive issued. This punishment is 50 times more than the existing provision of the Environment Protection Act (EPA), 1996. This indicates that environmental condition may be improved by penalising the proponent in a country where implementation of environmental protection measures (adverse impacts mitigation and benefits augmentation measures) as included in the legally approved IEE or EIA reports are grossly unknown.

Environmental assessment (EA) – understood worldwide as a planning and management tool – is used to identify, predict and evaluate significance of environmental impacts and recommend preventive, mitigative and compensatory measures for adverse impacts, and augmentation measures for beneficial impacts to make the development environment-friendly and sustainable. Alternative analysis and environmental management plan (EMP) or implementation of adverse impacts mitigation and benefits augmentation measures are the integral part of any type of EA worldwide. The IEE, EIA, Social Impact Assessment (SIA), Biodiversity Impact Assessment (BIA) or Health EIA, Cumulative Impact Assessment etc are normally understood project-level assessments while Strategic Environmental Assessment (SEA) is carried out for any environmentally sensitive policies, plans and programmes (3Ps). EAs and SEA are carried out in almost all countries for the 'prescribed' proposals (projects and 3Ps) through legislation, Decree, policy or administrative decisions. Fundamental differences on different types of EAs, in practice, require clear understanding and implications on development efforts while proposing for such assessments.

Nepal started the use of project-level assessments – IEE or EIA – through periodical policies, National EIA Guidelines (1993), separate EIA Guidelines for Forestry and Industry sectors (1995), EPA (1996) and Environment Protection Rules (EPR, 1997). From 26 June 1997, Nepal is carrying out IEE and/or EIA for all 'prescribed' projects and it has 22-years of experience in legally providing 'environmental clearance' for the implementation of the development projects by approving IEE or EIA reports. As EPA (1996) has considered any plan, project or programme as a proposal, it has opened avenues for SEA study (for plan and programme). But there is no legal procedure to carry out and approve the SEA report like that of IEE and EIA reports.

Many countries consider EA study an opportunity to know both beneficial and adverse impacts, including cost sufficiently in advance. In Nepal, many investors consider this tool expensive and complex, just an add-on process, and a development 'barrier'. It is very difficult to find project stopped from EA study. In case, mitigation measures are costly to address significant adverse environmental impacts, proponent may sometime withdraw project construction and implementation. Anyway, project developers have complied with the legal provisions on EAs in Nepal, some consider that once EIA report is approved, 'environment is automatically managed'. Experience indicates that approval of under quality IEE/EIA report has derailed environmental improvement initiatives.

The new Bill has included additional layer for preparing and approving 'environmental study' report for the prescribed proposal in addition to IEE and EIA. Based on proposed definition, 'environmental study' includes: (i) brief environment study; (ii) IEE; and (iii) EIA reports. A section has been added for 'detailed alternative analysis' of any proposal that requires environmental study report. Based on Schedules 3 and 4 of the EPR (1997), alternative analysis must be included in any IEE or EIA report. The EPR (1997) before its amendment required scoping for IEE study as well. In principle, scoping is carried out to know the 'scope of work' for IEE or EIA or any other EA studies. The first amendment (15 April 1999) of the EPR deleted the scoping requirements for IEE study and Terms of Reference does not include scope of work for the IEE study.

The proponent should prepare in the 'prescribed format' to maintain the standards and quality of the environmental study report. If, environmental study report is prepared by non-complying the standards and is in contrary to the quality prescribed, the consultant will not be 'eligible' to prepare such report up to 5 years. It gives a message that proponent is not responsible for the under quality report. The existing EPA and EPR do not recognise the 'consultant' and all IEE and EIA reports 'must be owned' by the proponent. However, proponent may hire the consultant to prepare the report on its behalf. It seems, 'ownership over the report' is shifted.

The new Bill also provisions for carrying out Strategic Environmental Analysis (SEAn) for the prescribed policy, programme or project. It does not include Plan but includes project which may require either IEE or EIA. As IEE or EIA is carried out for projects, SEA is widely used to assess environmental impacts of a policy, plan or programme. Nepal carried out SEA of Nepal water plan in 2004/'05. The EIA report (1995) of the Bara Operational Forest Management Plan was of SEA level. As the Bill has proposed for SEAn, a clear understanding and demarcation would be essential for 'SEAn and SEA'. The new Bill opens avenues to advance SEAn and EMP but clarity is required to translate legal provisions into action. The Bill has recognized the need for Supplementary EIA but procedural aspects may be included in the Rules.

Rule 14 of the EPR (1997) empowers the Environmental Ministry to conduct environmental auditing 2 years after the commencement of the service provided from the proposal requiring EIA report while the new Bill obliges the proponent to conduct auditing within 6 months after 2 years of the service provided. As environmental auditing is a systematic study and requires documented evidences (as the financial auditing) to access the actual environmental impacts, this binding provision (within 6 months) is in consistent with the principle. This 'within 2 years' provision in EPR 1997 was replaced by 'after 2 years of service' in its first amendment (1999). Scoping and ToR, EIA report and its implementation, and auditing are carried out by the proponent and Bill is 'silent' on environmental monitoring. Interestingly, the new Bill empowers the Government of Nepal or the Province to carry out environmental study of any mapped area or location.

The operational experience in developing and institutionalizing EA system in the Government of Nepal for about two and half decades and building capacity of the EA practitioners in Nepal and few African countries encouraged me to 'flag' these issues. Some of the provisions of the new Bill require 'conceptual clarity'. It is encouraged to understand the implications of each provision contained in the Bill as IEE/EIA is repeatedly 'blamed in Nepal a barrier' for project construction/economic development without considering accelerated 'cut & paste syndrome'. The new Bill may complicate the process for making the social and economic development projects environment-friendly and sustainable.

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Batu Uprety

Former Joint-Secretary and Chief of Climate Change Management Division, Ministry of Environment (then), and former Team Leader, National Adaptation Plan (NAP) formulation process. E-mail: upretybk@gmail.com

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