By: Kumudika Perera
Public participation is a matter of a nation’s legal, political and administrative arrangements. It nurtures people’s democratic rights.
EIA: The Guardian of Environs
The National Environmental Act, No. 47 of 1980 as amended defines ‘Environmental Impact Assessment’ (EIA) as a written, cost-benefit analysis of a predicted environmental project, containing a description of avoidable and unavoidable, adverse environmental effects the project would cause, the alternatives available and why the alternatives were rejected. An EIA has to be conducted at the project stage of the proposed activity if it qualifies as a prescribed project under Gazette Extraordinary Notification No. 772/22 dated 24th June 1993 as amended and the Project Approving Agencies (PAAs) are mentioned in Gazette Extraordinary Notification No. 859/14 dated 23rd February 1995 as amended.
The concept of EIA is based on inter alia Precautionary Principle and Sustainable Development whereby material development would not harm the ecology. Simply, EIA stands as a bulwark against errant development projects.
The current EIA process consists of five stages:
- Preliminary Information
- Environmental Scoping (Formal and Informal)
- Public Participation
Generally, public comments are sought at the informal scoping stage and when commenting on the EIA. But a closer look will show that public participation is vital at all stages of EIA.
What is Public?
Ideally, the public includes ‘indigenous peoples, local communities, women, youth, as well as Non-governmental Organizations (NGOs).’ It should also cover ‘affected parties,’ i.e. communities living close-by to the development site and ‘interested parties,’ who have a greater reflection on environmental matters.
Why is Public Needed?
When the public engages itself with the development proposals, they would comment, argue, persuade each other and form a discourse on value judgements on the acceptable levels of risks, ethics of development practices and fill the gaps in knowledge. It is an accepted view that those who are closest to the impacted environment have a greater understanding of the environmental problems than the ones who are ordinarily required to solve it. When the public is consulted, their input would further the ends of intergenerational and intragenerational equity.
Platforms for the Public
The Central Environmental Authority has published elaborate guidelines on how to accommodate the public during the scoping phase. Listed here are several platforms for the public to participate in environmental decision-making.
- Committee meetings
- Legislative debates
- Public addresses
- Legal disputes
- Project development
- Media investigations
- Policy implementation
- Post- project monitoring
Status of Public Participation
There is a lack of participation of the public at the decision-making tables and the reasons for this vary from technical constraints, benefits being uncertain, dispersed and delayed, to loss of confidence in the authorities. Additionally, the insufficiency of time allocated for the public to comment and EIA reports being inaccessible are other probable reasons.
Lessons from The International Community
Two International Conventions are vital when dealing with Public Participation in the EIA process, namely: Espoo Convention 1991 and Aarhus Convention 1998. Yet, Sri Lanka has not ratified any of these Conventions, but the Rio Declaration on Environment and Development 1992 which has been ratified by Sri Lanka, is related to the aforesaid Conventions via its Principles 17 and 10 respectively.
- Under Espoo Convention 1991
Affording public participation at the closing end of preparation of EIA does not justify opportunity to participate in environmental scoping. Hence, it is important that the public is able to closely participate in decision-making, noting ecological and sociological impacts thoroughly. Imposing a liability on the project proponent to inform all concerned parties if any material impact which was unknown at the time of granting approval comes to light, would further the transparency of the project. If it is not so informed, fines could be imposed on the defaulting project proponent on its bad faith. Even though the gaps in knowledge are mandated to be mentioned in EIA, the PAAs have to ensure that these are actually mentioned, so that it furnishes adequate information for the public to comment upon.
Requiring a special Species Impact Statement (SIS) when undertaking a development project strengthens the wholesome nature of the EIA report compiled. Providing a non-technical summary of the EIA for the laypersons to understand and updating the public about the status of their contributions, are foremost to inculcate faith and satisfaction in the competent authorities, so that a feedback loop is created. Moreover, the EIAs could be published online for the public to comment upon.
- Under Aarhus Convention 1998
Aarhus Convention is based on three fundamental principles that cater to public participation: Transparency, Public Participation and Access to Justice. Following the principle of participatory democracy, Aarhus Convention states that ‘environmental information’ has to be made available for the public. To enhance the legitimacy of the development decisions made, the public has to be consulted. Furthermore, the time allocated to comment on the EIAs should be raised to at least 90 days, as deemed sufficient by the Aarhus Compliance Committee. To boost access to justice, a mechanism to attend to public complaints on violations of EIA approvals has to be established and the PAAs also have a duty to ensure that the correct cross-section of the public is present at the decision-making table. Such caution is required because at times lawyers can be self-interested and the NGOs that are present, might be the popular and affluent ones, not exactly the NGOs that need to be heard.
In conclusion, ‘public participation is a matter of a nation’s legal, political and administrative arrangements, therefore closer to the heart of national sovereignty.’ Aptly, it nurtures people’s democratic rights and legitimacy of development decisions made for a sustainable future.
List of References
- Central Environmental Authority – Guidance for Implementing the EIA Process: No. 1 – A General Guide for Project Approving Agencies (https://drive.google.com/file/d/1JPmEmhUftjjF8VSgLzZPRwwYIneA_fTz/view)
- Central Environmental Authority – Guidance for Implementing the EIA Process: No. 2 – A General Guide for Conducting Environmental Scoping (https://drive.google.com/file/d/1pElzKYp8OiJt2MtP0STVzmTUt-ggCqbl/view)
- Compilation of findings of the Aarhus Convention Compliance Committee adopted on 18 February 2005 to date (https://unece.org/sites/default/files/2021-02/Compilation_of_CC_findings_05.02.2021_eng.pdf)
- Maria Lee – Public Participation in Environmental Decision-Making