Environmental Assessment: Prosperity Through Complex Regulatory Efforts

The Government through its Environmental Impact Study Project (EISP), established in 1981, conducted EIA of projects namely resettlement, Bhrikuti paper mill, Sagarnath forest development, Chandra canal irrigation, Jomsom small hydel, minor irrigation (Labdhu-Sera, Nuwakot), magnesite industry and leather factories during 1984 and 1987, and drafted preliminary guideline on EIA

April 10, 2021, 7:53 a.m. Published in Magazine Issue: VOL. 14 No. 16, April 16, 2021 (Baisakh 03, 2078) Publisher: Keshab Prasad Poudel Online Register Number: DOI 584/074-75

Four decades of continuous use of environmental assessment [in general, Initial Environmental Examination (IEE), and Environmental Impact Assessment (EIA)] tool through policies and nearly two and half decades of its use through legal provisions postured Nepal a country of preparing and 'low or not implementing' IEE or EIA report of the prescribed projects. High-income countries introduced EIA for major infrastructure projects in 1970s. Its use was ramified in other developing countries in 1980s. Almost all countries started its use to make their projects sustainable and environment-friendly since 1990s. Attended by the then Prime Minister of Nepal, Girija P. Koirala in 1992, the Principle 17 of the Rio Declaration, an outcome of the Rio Earth Summit, states 'EIA, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority'. High-level political commitment on EIA made its use 'mandatory' in almost all countries, including Nepal in 1990s.

Nepal's 6th periodic plan (1980-1985) committed to undertake EIA of the major infrastructure projects. Policies related to the use of EIA - a planning and predictive tool - were reflected in all periodic plans from 6th to current 15th plan (2019-2024). In addition, sector policies formulated after 1990 adequately focus the need for conducting EIA for all environmentally sensitive projects. Since the last one and half-decade, periodic policies have also emphasised on conducting environmental monitoring and auditing. The National Environmental Policy (2019) commits to internalise environmental aspects into all phases of development projects, make the environmental study reports credible, and conduct environmental monitoring and auditing regularly.

The Government through its Environmental Impact Study Project (EISP), established in 1981, conducted EIA of projects namely resettlement, Bhrikuti paper mill, Sagarnath forest development, Chandra canal irrigation, Jomsom small hydel, minor irrigation (Labdhu-Sera, Nuwakot), magnesite industry and leather factories during 1984 and 1987, and drafted preliminary guideline on EIA. Inadequate conceptual clarity on EIA resulted to undertake EIA of on-going projects. Mr. Sushil Bhattarai, Project Chief of EISP streamlined studies after receiving one month long training on EIA from Aberdeen, UK and started organising workshops and training on EIA in Nepal from 1984 to 1987. These studies provided opportunities to understand sector- or project-based environmental impacts and select appropriate measures to enhance and mitigate beneficial and adverse impacts respectively.

In March 1987, Nepalese delegate, attending a 'Senior Level Expert Workshop to Evaluate Benefits and Constraints of the EIA Process in SACEP Countries' in Colombo, informed that the Government has entrusted EISP to carry out EIA but it lacks legislation, technical expertise and implementation of 7th plan provisions on EIA.

The September 2 in 1990 marks the beginning of the development of a national system for EIA through a national workshop under the National Conservation Strategy (NCS) Implementation Programmes. This workshop drafted EIA guidelines by mobilising 'Environment Core Group' members through 'learning-by-doing process'. The National EIA Guidelines was refined, tested and finally approved by the Council of Ministers, and gazetted in 1993. This Guideline listed number of projects requiring IEE or EIA and the Government also instructed to conduct EIA of the Bara Forest Management Plan in 1995. However, EIA of this forest plan was of the strategic level. It happened so due to lack of understanding on the Strategic Environmental Assessment.

After 15 years of policy experience, studies, and use of 1993 Guidelines, Environment Protection Act (EPA, 1996) and its Rules (EPR, 1997) included legal provisions on conducting either IEE or EIA for the 'prescribed projects' and details on their approval processes with 'conceptual clarity'. The environmental law provisioned not to implement any project or proposal that requires IEE or EIA level of study without 'environmental clearance', that is, approval of its IEE or EIA report. Violators of this legal provision (including amendment) were penalised from NRs. 1.00 to NRs. 20 lakhs.

In principle, IEE or EIA is used to identify, predict and evaluate environmental impacts of any project and make efforts to avoid, minimise or compensate the adverse impacts, and enhance the beneficial ones. Provisions for the implementation of enhancement and mitigation measures, environmental monitoring and auditing are essential components of these reports. However, IEEs and EIAs are carried out for small and large scale projects respectively. This largely depends upon the nature, location and sensitivity of the projects. There are no fundamental differences on process for IEE and EIA or other impact assessments.

The Government has enforced EPA (2019) and EPR (2020) by repealing the previous Act and Rules. The EPR (2020) follows threshold approach and lists projects or proposals requiring Brief Environmental Study (BES), IEE and EIA. The 2019 EPA also provisions for Strategic Environmental Analysis (known as Strategic Environmental Assessment in impact assessment communities).

Several workshops and training were organised to build or enhance capacity in carrying out IEE or EIA. The Government published guidelines, guides and manuals. Dr. Ram B. Khadka in 2013 and I myself in 2003 wrote books on EIA process to assist proponents and consultants to prepare and/or improve quality of IEE/EIA reports. In spite of these efforts, 'cut and paste' continued and under-quality reports were submitted and approved. Implementation of approved IEE/EIA report is weak and people used to say 'once IEE/EIA report is approved, environment is automatically managed'. However few projects implemented approved reports, conducted environmental monitoring and auditing and have provided lessons on 'what worked and what did not'. Although I indicated to 'close my inputs' on EPR (2020) (https://www.spotlightnepal.com/2020/07/13/environment-protection-rules-2020-regulated-and-impractical/), recent 18-hours IEE training organised by the IPTM Nepal with technical support from Chem Tech Engineering and Research Centre from 23 March to 5 April 2021 encouraged me to flag few issues. It includes issues also raised by the participants.

Over two decades of extensive enforcement of EPA (1996) and EPR (1997) provides number of lessons and learning to improve this planning and predictive tool. Review of EPA (2019) and EPR (2020) clearly indicates an IEE and EIA process 'complex' in a number of ways.

  1. Section 4 of the EPA (2019) provisions for detail alternative analysis and does not clarify to select 'appropriate alternative' and impacts of the selected alternative.
  2. Rules 6 of the EPR (2020) provisions for conducting public hearing while preparing the report. Report is prepared as per approved ToR and suggestions of such hearing. It does not provide local people and stakeholder an opportunity to know and voice their concerns on impacts and proposed measures, including environment management plan (EMP).
  3. EMP is prepared to implement benefits enhancement and adverse impacts mitigation measures, including monitoring in a structured and planned way. Section 10 of the Act obliges the proponent to prepare an EMP as prescribed before the implementation of the proposal and provides guidance on aspects to be included in an EMP. Furthermore, this Section instructs to prepare action plan to implement an EMP. The IEE and EIA report formats also include a framework for EMP. If a 'stand-alone' EMP is to be prepared as per Section 10 of the EPA, question arises on implementation of EMP of the legally approved IEE or EIA report in the prescribed format.
  4. While reviewing formats for ToR and report, several inconsistencies are noted. For example, ToR for IEE (Schedule 7) and IEE report (Schedule 11) formats sufficiently confuse proponent to prepare a good quality and practical ToR and IEE report. Similarly, Schedule 4 and 9 of the EPR (2020) provides format to collect written suggestion for environmental scoping and IEE report respectively. Both notices look similar but objective of scoping and report is substantially different. Based on Schedule (9), proponent is not obliged to inform the project affected people about the likely environmental impacts and corresponding measures of the proposed project.
  5. Schedule 13 of the EPR (2020) lists academic qualification and experience of experts required for the preparation of BES, IEE and EIA reports. This is broad-based but lacks flexibility and selection of appropriate subject specialists because of the conditions specified. Section (6) of the EPA (2019) provisions for following government standards to maintain quality of the report and not to involve consultant who does not comply with the standards or submits under quality report up to 5 years. If the proponent changes the report before submission, consultant may be penalised as per the legal provisions. This raises a 'big' question of 'ownership' over the report. It seems that proponent can't prepare report and 'must involve' consultant.
  6. Schedule 14 of the EPR (2020) provides format for recommendation letter of the local level and/or concerned agency and informs to provide concrete recommendations with reasons on whether the proposal can be implemented or not. What happens with the 'non-implementation' recommendation if standard and good quality report recommends for project implementation?
  7. Environmental law is silent on approval process of BES, IEE or EIA if the same institution is the proponent and approving agency.

Review indicates less than 5 percent of the total project cost for enhancing environmental benefits and mitigating adverse impacts, including environmental monitoring and auditing. For example, EIA report of the upgrading of Nobel Hospital mentioned 1.43 percent of the total project cost as environmental cost (cost for implementation of enhancement and mitigation measures for physical, biological social, economic and cultural aspects during construction and operational stages, environmental monitoring and auditing). If the proponent is unwilling to invest environmental cost and government is unable to enforce environmental laws, let us forget about the importance of this tool which is widely used in almost all countries to make the project sustainable.

Environmental assessment is universally understood as a predictive tool. Impacts are identified and predicted using best available scientific methods. Still there exists lots of 'uncertainty'. Some flexibility and trust to the proponent and consultant is required. Quality control is the part of the approving agency. If a report is of under-quality, approving agency can disapprove. Inconsistencies and 'confusions' in legal provisions recalls impacts of 'cut & paste syndrome', or 'green vision syndrome' that may limit timely implementation of economic and infrastructure projects and affect government's single agenda of making Nepal 'prosperous'.

batu uprety111.jpg

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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