The Business Allocation Rules (BS 2074.12.01) of Nepal mandates the Ministry of Forests and Environment (MoFE) to formulate policies, laws and standards, including adoption of necessary regulatory measures related to, inter alia, environment and environmental impact study. In order to ensure sustainable development, the Environment Protection Act (EPA, 2019) entered into force on 18 October 2019 – the 8th day of authentication by the President. The 2019 Act repeals the 1996 EPA. The Act provides provision to formulate and implement Rules, Guidelines, Procedures and standards. Accordingly, Environment Protection Rules (EPR) has been drafted and MoFE has called for providing suggestions by posting it in its website on 7 January 2020 (BS 2076.09.22). Concerns and issues on the Bill and 5 November 2011 draft EPR were flagged (https://www.spotlightnepal.com/2019/05/21/environment-protection-bill-2019-heavy-punish ment-non-compliance/ and
https://www.spotlightnepal.com/2019/12/05/environm ent-protection-act-2019-complexity-study-approval-process/. Second opportunity is used to encourage EPR drafter(s) to follow principles, knowledge and operational experiences to make it practical, and environment & development-friendly.
Here, some important aspects are raised before making the draft EPR legally binding and support to have 'common understanding' of report prepares, reviewers, decision-makers, law enforcers and stakeholders as well on legal matters related to environmental assessments.
1.In principle, environmental scoping (ES) is carried out to define the 'scope of work' which is later included in the Terms of Reference (ToR) to guide and streamline the study. The Rule 4 of the draft EPR provisions for public notice to suggest on 'environmental impact that may occur from proposal's implementation'. ES documents prioritised issues and concerns that should be 'studied during environmental assessment'. The Schedule 4 (format of public notice) calls interested people to provide inputs on 'impacts' and it differs with fundamentals of scoping.
2.The Schedule 5 (format of the ES document) is framed broadly but offers space for repetitions. It asks to review guidelines and standards. Guidelines are used to prepare reports, and standards are used to evaluate the significance of impacts and there is no need for such review. Review focus should be on policy and laws to ensure project implementation under existing policies and laws. Methodologies as mentioned in the format (Schedule 5) limits flexibility and information asked for existing environmental condition looks like for 'spoon feeding'. Existing condition will largely depend upon nature and location of the project, and resources likely to be affected by the project. This format will not be appropriate for urban area projects. It is encouraged to simplify Schedule 5 and make flexible so that each project requiring environmental scoping may use it professionally.
3.The ToR for EIA (Schedule 8) is framed in 14 chapters. A comprehensive ToR can be prepared within 10 pages to guide the study. Based on this format, several information of Scoping Document may be repeated in the ToR. Several issues might be reopened and create 'complexities' till the approval of the report. Hence, window for developing practical ToR should be considered and such details are 'grossly inappropriate'. If necessary, EPA (2019) provides provisions to issue guidelines and procedures and Government may issue sector specific additional procedure. The ToR should be developed based on nature and location of the project and resources likely to affected.
4.The EPA (2019) provides provision to prepare brief environmental 'study' report while Schedule 10 of the draft EPR mentions report of the brief environmental 'examination'. It instructs users to understand 'study' and 'examination' synonymously. Aspects related to environmental monitoring could be added in the format as it contains a frame for environment management plan.
5.The format for IEE report as contained in Schedule 11 of the draft EPR is inappropriate for many sectors. This format was prepared for 'industry projects' in 1995. Unfortunately, it was copied from EIA Guidelines of the Industry Sector and pasted in EPR (1997). In EPR (1997), IEE report format did not consider plan for the implementation of benefits augmentation and adverse impacts mitigation measures and environmental auditing. In fact, auditing is carried out to assess pre-and post-project status and/or changes and provides updates on what worked & what did not, including effectiveness of augmentation or mitigation measures.Inclusion of EMP frame in the new IEE format sounds good. Proposed EMP format should also consider 'where' to know location of measures to be implemented. It is encouraged to include requirements for environmental monitoring and auditing for IEE as well as there is no much difference between IEE and EIA studies.
7.Schedule 12 of the draft EPR (2019) provides format for the EIA report in 11 chapters, excluding references and annexes. This report can also be prepared in 7 chapters by merging relevant chapters to reduce/avoid repetitions in write-ups. It can be considered 'spoon feeding' format. It also includes numerical for magnitude, extent and duration (as contained in the National EIA Guidelines, 1993) but does not consider national and trans-boundary extent of impacts. This frame will unnecessarily increase the volume of report. There are several places opened for reinterpretation by non-professionals. Furthermore, this frame might not be appropriate to all projects requiring EIA.
8.Report of any proposal should be guided by the ToR. Elaboration of monitoring sounds good but provision for baseline monitoring should be reconsidered as the legal provision instructs to implement the project within two years of EIA report approval. If the baseline is changed, impacts will also be changed.
9.All types of environmental auditing are not required. Types of auditing proposed in the draft EPR are taught in academic courses. It is encouraged to propose important auditing related to the project or leave it open. The Schedule 12 instructs to write auditing requirements within 5 pages but it also includes framework for auditing report with number of elements. If necessary, auditing guideline, procedure or manual may be issued.
10.Schedule 13 provides a frame for public notice of the IEE report and calls for providing 'impact on and between environmental domains – physical, biological, social, cultural and economic systems'. Its spirit in 1997 was to release draft report and inform project affected communities to know in advance the likely impacts and proposed measures and seek their opinions. This public notice resembles with the notice of scoping document that considers 'issues and concerns' while IEE report focuses on 'impacts'.
12.It is unfortunate to dictate the language of the report, only in Nepali and Unicode. There are several IEE and EIA reports prepared in Nepali language in the past. It can be encouraged to prepare in Nepali but 'compulsory is unnecessary'.
13.In general understanding, Strategic Environmental Assessment (SEA) is a second-generation EIA which is carried out for assessing impacts of a policy, plan or programme. The Strategic Environmental Analysis (SEAn) as included in the EPA (2019) and draft EPR (2019) is for policy, programme or project. The IEE and EIA are project-level assessment while SEAn is also proposed for project. Although, MoFE is mandated for all types of environmental assessments, SEAn provisions in the draft EPR (2019) on SEAn is unlike with its mandate.
In a nutshell, the draft EPR has used some experiences of EPA (1996) and EPR (1997) enforcement but overlooks principles and 'barriers' in number of Schedules. It may create 'obstacles' during its enforcement and national effort of promoting sustainable development will remain for decades. As a proven tool for sustainable development globally, environmental assessment should not be a 'barrier for socio-economic development of the country'.