The IEE Process: Overcoming Shortcomings & Effective Implementation

An Initial Environmental Examination (IEE) is simply an instrument to assess the possible impacts of a proposed development project on the environment. It is carried out with a view to determine whether the impacts of a proposed project are significant or not, and should thus entail all the possible environmental impacts and the intensity of such impacts. Usually, IEEs are carried out in projects which are deemed to be less damaging to the environment. An IEE may itself grant approval for the project to proceed or will raise the need to conduct an Environmental Impact Assessment (EIA), if the impacts are more significant than initially anticipated. 

In the Sri Lankan context, several legislations mention the requirement to carry out an IEE. The IEE process also involves 6 major steps that are quite similar to an EIA. The step by step process has been defined in the EIA regulations which have been published in the Gazette No. 772/22 of 24.06.1993. However, unlike the EIA process, an IEE does not look into the alternatives to the proposed project, nor attempt to find means of mitigation for the identified impacts. The IEE also does not carry out any environmental cost benefit analysis in its reporting. Although an IEE report is a public document and in theory the public has access to the report, the element of public participation is not a mandatory step included in the IEE process.

• Part IV C of the National Environmental Act of Sri Lanka (NEA) states the need to conduct an EIA or an IEE to get approval for ‘Prescribed Projects’ (PP). However, through the Amendment to the NEA by Act No. 53 of 2000, the public right to comment on IEE has been withdrawn. 

• Under the Coast Conservation and Coastal Resource Management Act (CCCRM), the Minister has power to determine activities that do not require any permit and development activities in respect of which IEEs are not required by way of regulation. Furthermore, Director General of the Department of Coast Conservation has broad powers including the powers to determine whether a PP requires an IEE or EIA report and whether a PP must further submit an EIA upon receival and analysis of the IEE report. The Director General can submit IEE reports to the Coastal Conservation Advisory Council for their comments and he can grant permits to carry out a development project upon completing the IEE/ EIA process. Even under the CCCRM only the Coastal Conservation Advisory Council has the power to provide commentaries to any IEE referred to them, while the Act does not mention about public comments for IEEs. 

• On the other hand, the Fauna and Flora Protection Ordinance (FFPO) clearly states in Section 9A that, any PP intending to obtain approval, must obtain prior written approval from the Director General of Wildlife Conservation who can also determine whether the project proponent must furnish an IEE or an EIA by analysis of the application for a permit. On receipt of an IEE or EIA, the Director General must submit a copy to the Committee appointed by him on that behalf, and also publish a notice in the Gazette notifying the public of the said report. Therefore, unlike previously discussed legislations, the FFPO requires mandatory public participation to be carried out for all IEEs, under Section 9A(3)(b). Despite this, veteran environmentalist and an Attorney-at-Law Dr. Jagath Gunawardena opines that there are no such instances of public participation carried out under the FFPO for IEEs.

It is evident that from a perusal of the Sri Lankan laws governing IEEs, public participation is either statutorily excluded or pragmatically not implemented. The absence of public disclosure in many of the IEEs and the lack of opportunity for public comments may have serious implications if PPs are granted approval without further requirements (for example, without further requirement to conduct an EIA). At this point Mr. Poorna Yahampath’s comment that, “whether public participation is required in an IEE is heavily dependent on the geographical area of the project and the sensitivity of such an area” is definitely relevant. At the same time, while an extended period for public comments would blur the distinction between an IEE and an EIA, some element of public participation in an IEE would be justifiable for three reasons. 

• Firstly, it will accurately represent the overall picture of the impacts of the PP. 
• Secondly, since an IEE does not look at alternatives, the comments from the public can prompt changes/alterations to the initially proposed activities. 
• Thirdly, it is a reinforcement of  democracy, allowing people to raise their voice on matters that directly affect their standard of life. 

Other States from the Asian region, such as Pakistan and Cambodia provide examples where public participation is an element in the IEE process. A report in 2018 about a Rural Road Improvement Project in Cambodia mentions that public consultations involving affected people and local officials were conducted through focus group discussions and individual interviews in all ten provinces, during the preparation of the feasibility study and IEE. Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations 2000 contains detailed procedures that must be followed in an IEE/EIA process, such as:

• conducting public hearings, 
• issuing notices, 
• recording decisions and 
• accepting or rejecting an EIA/IEE while also laying out in its schedules the type of activities that would require an IEE (eg: housing schemes,  projects with significant “off-site impacts” such as, hospitals and urban development projects). 

The Judiciary plays a pivotal role in effective enforcement of IEE procedure. Environmental Foundation Limited v. Central Environmental Authority and Others is a landmark judgement where the issue was based on the decision taken by the technical evaluation committee (TEC) on the IEE of proposed Bomuruella mini hydropower project dispensing the requirement of EIA.  The Court of Appeal issued a writ of Certiorari quashing the approval given by CEA to proceed with the  project, due to its failure in exercising the prescribed procedure to conduct an IEE in good faith. It further held that TEC has no jurisdiction to decide the adequacy of an IEE or EIA and CEA cannot in law surrender the discretion vested in them to another party as well. Even the  decisions of Environmental Foundation Ltd. & Others v Mahaweli Authority of Sri Lanka & Others and Ravindra Gunawardena Kariyawasam v Central Environmental Authority & Others cases further highlight the importance of adopting an IEE or an EIA.

List of References

• Central Environmental Authority – Guidance for Implementing the Environmental Impact Assessment (EIA) Process: No.2 – A General Guide for Conducting Environmental Scoping (https://drive.google.com/file/d/1pElzKYp8OiJt2MtP0STVzmTUt-ggCqbl/view) 
• Coast Conservation and Coastal Resource Management Act, No. 57 of 1981 (CCCRM) as amended
• Environmental Foundation Limited v. Central Environmental Authority and Others – CA 1556/2004
• Environmental Foundation Ltd. & Others v Mahaweli Authority of Sri Lanka & Others – SC (FR) Application No. 459/08
• Fauna and Flora Protection Ordinance, No.02 of 1937 as amended (FFPO)
• Ministry of Rural Development – CAM: Rural Roads Improvement Project III (https://www.adb.org/sites/default/files/project-documents/42334/42334-018-iee-en.pdf)
• National Environmental (Amendment) Act, No. 56 of 1988
• Pakistan Environmental Protection Agency Review of Initial Environmental Examination and Environmental Impact Assessment Regulations 2000 (SRO 339(I)/2000 dated 13 June 2000)
• Ravindra Gunawardena Kariyawasam v Central Environmental Authority & Others  SC FR No. 141/2015
• The Constitution of the Democratic Socialist Republic of Sri Lanka 1978 as amended