IS THE ENVIRONMENTAL IMPACT ASSESSMENT (EIA) PROCESS RELATED TO ONE’S RIGHTS & DUTIES RELATED TO THE ENVIRONMENT?

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With the escalation of development activities and the influence of international agreements, environmental conservation has emerged as a major concern since the 1970s. Even in this day and age, it is becoming increasingly evident that environmental conservation is a dire need for the continuity of the entire human race. At the same time, the challenges to protect the environment are also mounting.

 

Protection of the environment as a right & duty

In light of the crucial need to protect and preserve the environment, States such as Nepal have given constitutional recognition to a right to live in a clean environment, according to Article 16 (1) of the 2007 Interim Constitution of Nepal. Neighboring India has recognized that the right to life is a fundamental right under Article 21 of the Constitution and it includes the right to enjoyment of pollution free water and air for full enjoyment of life in leading cases such as Subhash Kumar vs. State. of Bihar.

In Sri Lanka, the legislators have laid down provisions on management and protection of the environment in the 1978 Constitution. Although not included as a fundamental right, as per Article 27 (14) it is a directive principle of State policy to protect, preserve and improve the environment for the benefit of the community. According to Article 28 (f) of the Constitution every person of Sri Lanka also has a fundamental duty to protect nature and conserve its riches. Thus, there is an obligation upon both the State and the people to protect the environment.

This then brings us to a question; how is the EIA process related to such rights and duties?

 

The EIA in brief

Before perusing the question, it is essential to understand the basic idea implicit by EIA, which is ‘look before you leap.’ The EIA determines the amount of damages a project will do to the environment before deciding whether and how to carry it forward. The ultimate objective of conducting an EIA is to achieve sustainable development by searching for the most environmentally friendly alternatives, minimizing negative impacts, maximizing positive impacts and integrating environmental costs and benefits into the overall project analysis. According to the CEA, the purpose of EIA is to ensure sustainable investment for developers and a livable environment for the people. It is therefore evident that the EIA is a process specifically designed to preserve and protect the environment.

Environmental protection is directly connected to human rights, in countries such as Nepal and India. Even in a Sri Lankan context, conserving nature, as established earlier, is a constitutionally established duty of both the State and citizens. As such, EIA becomes a tool with which to enforce constitutional provisions.

 

The State & the public’s duties perspective of EIA in the Sri Lankan context

The carrying out of an ElA was first introduced to Sri Lanka by the Coast Conservation Act No. 57 of 1981 but was limited to a defined strip of coastal zone. Subsequently, National Environmental (Amendment) Act no. 56 of 1988 (NEA), introduced the ElA system to the entire island. In terms of the NEA, it is mandatory to conduct an EIA in respect of certain categories of prescribed activities recognized in the Gazette 722/22 of 24th June 1993 and 859/14 23rd February 1995. Additionally, the Fauna and Flora Protection Ordinance, Northwestern Provincial Council Environmental Statute No. 12 of 1980 and National Heritage and Wilderness Act also include provisions on EIA. Leading cases such as the Heather Mundy case and the Katunayake Expressway case have reinforced the importance of the EIA process and the vitality of it being carried out, prior to developmental activities.

This cumulative effect of this plethora of legislation and case law ensures that the State is held accountable to fulfill its obligations towards the protection of the environment. Thus, even State sponsored development programmes are subject to the EIA process. The State also has an obligation to ensure that the proper EIA procedure is followed even in projects led by private entities. While on one hand it ensures rule of law, the positive impacts of a proper and effective EIA would ultimately be enjoyed by the overall citizenry.

One of the key features of the EIA procedure laid down in Sri Lanka is public participation, which is a significant form in which the people can fulfill their constitutional duty to protect and conserve nature’s riches. The public can participate at the ‘scoping’ stage, review the EIA within 30 days, request clarifications from the project proponent through the project approving agency (PAA) and may, at the discretion of the PAA, participate at a public hearing. Throughout the years, the public has actively engaged to review about 200 EIAs and in certain instances EIA has been implemented due to public pressure. For example, in 1999, despite the government having issued a gazette proclamation annulling EIA legislation for energy generation projects, the Minister of Power had to publicly proclaim that EIA would be conducted for a 300Mw Coal Power Plant in Puttalam due to public protests.

The EIA process has not only become a mechanism for transparency and public review of projects, but has also facilitated a citizen’s fundamental duty to protect the environment, which can be carried out through active engagement in the EIA process.  At this point it is quite pertinent to note the words of Justice Shiranee Thilakawardena in the Watte Gedera Wijebanda v. Conservator General of Forests and Others case:

“Human kind of one generation holds the guardianship and conservation of the natural resources in trust for future generations, a sacred duty to be carried out with the highest level of accountability.”

The Constitution of the Democratic Socialist Republic of Sri Lanka 1978

Interim constitution of Nepal 2007

National Environmental (Amendment) Act no. 56 of 1988

Gazettes extraordinary No 772/22 of 24th June 1993 and No 859/14 of 23rd February 1995

Subhash Kumar vs. State. of Bihar (1991) 1 SCC 598

Watte Gedera Wijebanda v. Conservator General of Forests and Others S.C. Application No. 118/2004

Amarasinghe and Others V. The Attorney-general and Others [1993] I SriLR 376

Heather Therese Mundy v Central Environmental Authority SC Appeal 58/2003

Hennayake S.K., Environmental Impact Assessment in Sri Lanka (2008) Economic Review: June / July 2008

King T. F., “ENVIRONMENTAL IMPACT ASSESSMENT AND THE LAW.” Encyclopedia of Archaeology, 2008, pp. 1140 – 1148

Kodituwakku D.C., The Environment Impact Assessment Process in Sri Lanka (2004): Sarid journal

Zubair L., ‘Challenges for Environmental Impact Assessment in Sri Lanka’ (2001) 21 Environmental Impact Assessment Review.

Frequently Ask Questions about Environmental Impact Assessment (EIA).” Central Environmental Authority, 30 August 2013, <http://www.cea.lk/web/en/faq>. Accessed 25 May 2021.

Ministry of Environment and Natural Resources, ‘Environmental Management Framework, Ecosystems Management and Conservation’ (Ministry of Environment and Natural Resources 2010)

Environmental Impact Assessment – the Sri Lankan Experience, USAID/ Sri Lanka Natural Resources & Environmental Policy Project, International Resource Group Ltd, 1997.

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