Whereto with EIAs and Public Participation

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 Notification No. 772/22 dated 18th June 1993 as amended and the Project Approving Agencies (PAAs) are mentioned in Gazette Notification No. 859/14 dated 16th February 1995.

The concept of EIA is based on Precautionary Principle and Sustainable Development, so that material development would not harm the ecology. Simply, EIA stands as a bulwark against errant development projects.

The current EIA process has five stages:

  1. Preliminary Information
  2. Environmental Scoping (Formal and Informal)
  3. Public Participation
  4. Decision making
  5. Monitoring
Image Credits: MONGABAY and Cane Mario.

Generally, public comments are sought at informal scoping 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, public includes ‘indigenous peoples, local communities, women, youth, as well as NGOs.’[1] It should also cover ‘affected parties,’ i.e. communities living close-by to the development site and ‘interested parties,’ who have 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 gaps in knowledge.[2] 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 ordinarily are required to solve it. When the public is consulted, their input would further the ends of intergenerational and intra-generational equity.

 

Platforms for the Public

 

The Central Environmental Authority has published elaborate guidelines on how to accommodate public during the scoping phase.[3] Listed here are several platforms for public to participate in environmental decision making.[4]

  • Committee meetings
  • Legislative debates
  • Hearings
  • Public addresses
  • Legal disputes
  • Rule-making
  • Project development
  • Media investigations
  • Policy implementation
  • Enforcement
  • Post- project monitoring

Status of Public Participation

 

There is a lack of participation of public at the decision making tables and the reasons for this vary from technical constraints, benefits being uncertain, dispersed and delayed and loss of confidence in the authorities. 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 was 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 public is able to closely participate in decision making, noting ecological and sociological impacts severely. 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. Even though the gaps in knowledge are mandated to be mentioned,[i] the PAAs have to make sure these are mentioned, so that it furnishes adequate information for the public to comment upon.

Requiring a special Specie 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 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 EIA should be raised to at least 90 days, as deemed sufficient by the Aarhus Compliance Committee.[ii] 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 public is present at the 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, and therefore closer to the heart of national sovereignty.’[iii] Aptly encouraging it nurtures peoples’ democratic rights, and legitimacy of development decisions made for a sustainable future.

[1] Maria, ‘Public Participation in Environmental Decision Making’ Environmental Protection, Law and Policy 133.

[2] ibid 88.

[3] Central Environmental Authority, Guidance for Implementing the EIA Process, No. 2: A General Guide for Conducting Environmental Scoping (3rd edn, Central Environmental Authority 2006) 07 – 18.

[4] (n 1) 94.

[5] Central Environmental Authority, Guidance for Implementing the EIA Process, No.1: A General Guide for Project Approving Agencies (4th edn, Central Environmental Authority 2006) 23 – 28.

[6] United Nations Economic Commission for Europe, ‘Compilation of findings of the Aarhus Convention Compliance Committee adopted 18 February 2005 to date’ [2021] 55 available at  <https://unece.org/sites/default/files/2021-02/Compilation_of_CC_findings_05.02.2021_eng.pdf> accessed 23 May 2021.

[7] (n 1) 134.

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