No Illusion about the EIA process
Published on: Sunday, November 08, 2020
By: Chen Kok On
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Credit: pixabay.com (For Illustration Purpose Only)
PEOPLE often wonder, why some development projects, which could potentially damage the natural environment, are allowed to proceed, and whether the law should have prevented them in the first place. 

Our environmental laws (both Federal and State) require that any proposed development activity (of a type which has been categorised as likely to cause significant impact to the environment), must undergo the Environmental Impact Assessment (EIA) process. The EIA will evaluate the likely impacts of the development on the environment, and is supposed to propose solutions that will “prevent, reduce or control the adverse impact on the environment” (Federal law). (State law also requires the submission of an EIA report or a proposal for mitigation measures which would “prevent, mitigate or abate” the adverse impacts, or are adequate “to protect the environment”, and that the impacts are “not detrimental to the environment”.) In this article, the term “EIA” covers both Federal and State law. 

Unfortunately, even if the EIA process itself has been followed, it might not achieve its intended purposes, which include to inform the decision-makers and to prevent damage to the environment.

Subjective Elements in the Approval of EIA Report

To begin with, we must realise that the law does not say that the proposed development must not cause any environmental damage, in order for the EIA report to be approved. The EIA report (and the development itself) can still be approved even if there will be adverse impact on the environment, provided that such impact could be “reduced”, “controlled”, “mitigated”, “abated”, or “not detrimental”. 

Here, we are on a slippery slope, because how much reduction, control, mitigation or abatement is considered “adequate” or “not detrimental”, is really quite subjective. The legislation do not define the meaning of such terms. 

In other words, the environmental protection authorities are essentially making a subjective judgment call on a policy decision, of how much damage to the environment is acceptable – instead of an objective, purely scientific decision. As a result, it is possible for different directors of the authorities to make different conclusions on the same EIA report or project. 

Conflict of Interests, Lack of Expertise and Budget

Secondly, EIA reports are usually prepared by consultants who are paid by the developers themselves. For a big project, the fee could cost hundreds of thousands of ringgit. 

Under such a financial arrangement, is it more likely that these consultants will try to help their clients to advocate for the approval of the project, by presenting as favourable a picture as possible? Or is it more likely for them to, instead, present a negative report, which might increase the probability of the multi-million project being rejected? In short, will the consultants be truly independent? At the minimum, it raises a question about conflict of interests here. 

William Orville Douglas, a former judge of the US Supreme Court, said in a 1973 case that, “It seems to me a total frustration of the entire purpose [of the American legislation] to entrust evaluation of the environmental factors to a firm with a multi-million dollar stake in the approval of this project… The final say on these environmental matters should not be under the direct or indirect control of those who plan to make millions out of their destruction.”  [Life of the Land v Brinegar (1973) 414 US 1052]

In Malaysia, the environmental protection authorities can reject an EIA report (including the proposed mitigation) which is considered inadequate to “prevent, reduce or control the adverse impact on the environment”. However, the question is, whether the authorities have the technical expertise to assess the impact and the proposed solutions in the first place. To make it work, the officials would have to be knowledgeable and up-to-date in the relevant areas of science and technology; on top of having enough manpower to assess the effectiveness of the mitigation solutions proposed by the developer. 

The performance of a car is only as good as its driver. In Sabah, the Environment Protection Department has this responsibility to assess the EIA reports for development activities governed by state law, but they have only a very limited number of staff and budget to cover the whole state. Therefore, the EPD is placed in a very demanding position. (Activities governed by federal law would be assessed by the federal Department of Environment.) 

Inadequate Post-Development Monitoring and Meaningful Enforcement

Thirdly, the EIA report is fundamentally a prediction exercise. The consultants preparing it will try to predict what would be the environmental impacts of the project, and to propose mitigation measures to try to reduce the impacts. If the government and the environmental agencies go on to approve the project based on such proposed solutions, the important question then becomes: will those solutions work, in the long run? 

A major complaint of the EIA process is the inadequate monitoring during and after the approved project has been completed. Although the government could make the developer promise to implement the proposed solutions, it might require a lot of technical expertise and manpower to monitor them throughout the entire existence of the infrastructure / facility. For example, a dam or a coal power plant could carry on operating for over 50 years. Who will pay for the scientific monitoring for these 50 years? Unfortunately, environmental agencies tend to be under-funded and under-staffed, often due to the perception that they are “less important”. 

To make matters worse, what if those predictions in the EIA report, which are based on scientific hypothesis and assumptions, turn out to be inaccurate? For example, what if a dam is later found to (unexpectedly) cause some neighbouring rivers to dry up, or a coal power plant is emitting more toxic substance (than the EIA report had predicted)? Will the government then shut down the entire operation of such an important infrastructure / plant? Or is it more likely that the public would be asked to tolerate such environmental pollution and hazards, “for the sake of development”? 

One of the most devastating examples, from an environmental protection point of view, would be the construction of a major road which cuts into a forest reserve or wildlife habitat, which would facilitate poaching and cause roadkills, and eventually the local extinction of endangered species. Will the government then shut down such an important road? To penalize the developer by that time would be too late, because the developer is likely to have ceased to exist after the road construction has been completed and money collected. By that time, the extinct wildlife would also have ceased to exist, forever. In the end, the EIA reports are not even worth the paper they are printed on. 

Ex Post Justification Only?

Fourthly, by the time the EIA process begins, it is usually too late in the decision making process. Ask yourself: would any developer, who plans to make huge (legitimate) profits out of the project, pay the consultants to prepare an expensive EIA report, before the developer feels confident that: (a) the project will be approved by the government of the day, and (b) the project will be approved to that particular developer and not someone else? 

Therefore, in practice, before the EIA process has even begun, the ministers and government agencies would likely to have made many (informal) policy or political decisions to lean in favour of approving the project. They would have given a “green light in principle” to the project purely based on economic and technical evaluations, supported by the enthusiastic local population hungry for development projects – while the environment assessment only comes later. 

By that time, since “everybody else” is already in favour of the project, it is not difficult to imagine that the environmental protection authorities would be under great pressure “not to be unreasonable”, in order to smooth the passage of the EIA process to let the development proceed. 

This problem, to Justice William Douglas, is like “to decide first what they want to do and then prepare an impact statement as an ‘apologia’ for what they have done.” [United States v Students Challenging Regulatory Agency Procedure (SCRAP) (1973) 412 US 669]. In other words, in most cases, the environment is only an “afterthought”, making the EIA report merely an after-the-fact justification. 

Conclusion

Indeed, not all development projects are subject to the EIA process, and not all of the EIA reports are widely and easily accessible to the public, including being made available by the authorities on the internet. It is simply not possible to list all the weaknesses of the EIA process here. 

For the record, there is no allegation or insinuation that anybody has committed any wrongdoing in the EIA process. The point is, while there is no doubt that the EIA process performs an important role in environmental protection, we must also recognise that the process has many weaknesses and needs to be strengthened. We must not have the illusion that the current EIA process is somehow the be-all-and-end-all protection of the natural environment. 

It is critical that the government and the public must first fundamentally change their perception about environmental protection: Just like life itself, the environment must come first, and not merely as an afterthought. 

Going forward, the civil society and the public as a whole should be allowed to play a bigger role in the enforcement of environmental laws and policies. After all, the environment belongs to and affects everyone, not just the government.

- Chen is from Legal Innovation, Forever Sabah, and a practising lawyer in Sabah.





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