MPE Mekong EIA Briefing Final

7/24/2019 MPE Mekong EIA Briefing Final

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Mekong Partnership for the Environment

MEKONG EIA BRIEFING :

Environmental Impact AssessmentComparative AnalysisIn Lower Mekong Countries


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Authors :Mahew Baird and Dr. Richard Frankel

Published in 2015 by Pact

This report is made possible by the generous support of the American people

through the United States Agency for International Development (USAID)

Mekong Partnership for the Environment program, implemented by Pact.The contents are the responsibility of Pact and do not necessarily reflect

the view of USAID or the United States Government


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MEKONG EIA BRIEFING :

Environmental Impact Assessment

Comparative Analysis

In Lower Mekong Countries


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Lis o Acronyms ...................................................................................................................................................................................... II

Execuive Summary .............................................................................................................................................................................. III

I. Background ...................................................................................................................................................................................... 1

Susainable Developmen ................... ...................... ...................... ...................... ...................... ...................... ...................... ... 1 EIA and is Roles .................... ...................... ...................... ...................... ...................... ...................... ...................... ..................... 1

II. Key Principles of EIA and Procedures ............................................................................................................................. 3

Key Principles o EIA ................... ...................... ...................... ...................... ...................... ...................... ...................... ............. 3

Generic EIA Process .................... ...................... ...................... ...................... ...................... ...................... ...................... ............. 5

Public Paricipaion in EIA ................... ...................... ...................... ...................... ...................... ...................... ...................... .. 7

III. Public Paricipaion in EIA in Lower Mekong Counries ..................................................................................... 10

Cambodia ................................................................................................................................................................................................... 10

Overview ................... ...................... ...................... ...................... ...................... ..................... ...................... ...................... ............... 10

EIA Procedure ................... ...................... ...................... ...................... ..................... ...................... ...................... ...................... .... 10 EIA Pracices in Cambodia wih Respec o Public Paricipaion .................... ...................... ...................... ....... 12

Lao PDR ...................................................................................................................................................................................................... 13

Overview ................... ...................... ...................... ...................... ...................... ..................... ...................... ...................... ............... 13

EIA Procedure ................... ...................... ...................... ...................... ..................... ...................... ...................... ...................... .... 14

EIA Pracices in Lao PDR wih Respec o Public Paricipaion ................... ...................... ...................... ........... 19

Myanmar ................................................................................................................................................................................................... 23

Overview ...................... ..................... ...................... ...................... ...................... ...................... ...................... ...................... .......... 23

EIA Procedure ................... ...................... ...................... ...................... ..................... ...................... ...................... ...................... ... 23

EIA Pracices in Myanmar wih Respec o Public Paricipaion ..................... ...................... ...................... ...... 25Thailand .................................................................................................................................................................................................... 28

Overview ...................... ..................... ...................... ...................... ...................... ...................... ...................... ...................... .......... 28

EIA Procedure ................... ...................... ...................... ...................... ..................... ...................... ...................... ...................... ... 28

EIA Pracices in Thailand wih Respec o Public Paricipaion .................... ...................... ...................... .......... 32

Vienam ..................................................................................................................................................................................................... 33

Overview ................... ...................... ...................... ...................... ...................... ..................... ...................... ...................... .............. 33

EIA Procedure ................... ...................... ...................... ...................... ..................... ...................... ...................... ...................... ... 34

EIA Pracices in Vienam wih Respec o Public Paricipaion..................... ...................... ...................... .......... 37

IV. Comparaive Analysis of EIA in Lower Mekong Counries ............................................................................... 38

Gaps and Weaknesses in Public Paricipaion in EIA ..................... ..................... ...................... ...................... .......... 47

Overall Reflecions or Improving Public Paricipaion in EIA in Lower Mekong Counries ................. 50

Key Recommendaions ................... ...................... ...................... ...................... ...................... ...................... ...................... ....... 51

References ............................................................................................................................................................................................... 53

Annex 1 :Inernaional and Regional EIA Frameworks ..................................................................................................... 55

Inernaional EIA Law Framework ..................... ...................... ..................... ...................... ...................... ...................... ... 55

Mekong Agreemen 1995 .................... ...................... ...................... ...................... ...................... ...................... ..................... 57

Asian Developmen Bank Saeguard Policy Saemen ...................... ...................... ...................... ...................... .. 59 ASEAN .................... ...................... ...................... ...................... ...................... ...................... ...................... ...................... ................. 62

Table of Conens


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ABA American Bar Association

ADB Asian Development Bank

AECEN Asian Environmental Compliance and Enforcement Network

ASEAN Association of Southeast Asian Nations

CSO civil society organization

EA environmental assessment

ESMMP Environmental and Social Management and Monitoring Plans

ECC environmental compliance certificates

EHIA Environmental and Health Impact Assessment

EIA Environmental Impact Assessment

EMMP Environmental Management and Monitoring Plan

EMP Environmental Management PlanEPP Environmental Protection Plans

ESIA Environmental and Social Impact Assessment

IEE Initial Environmental Evaluation

IEIA Initial Environmental Impact Assessment

MoE Ministry of Environment

MOECAF Ministry of Environmental Conservation and Forestry (Myanmar)

MONRE Ministry of Natural Resources and Environment (Lao PDR, Vietnam,

Thailand)

MRC Mekong River CommissionNGO non-government organization

ONEP Office of Natural Resources and Environmental Policy and Planning

(Thailand)

PAP project affected people

PNPCA Prior Notification, Prior Consultation and Agreement

SEA Strategic Environmental Assessment

SPS Safeguard Policy Statement (ADB)

TbEIA transboundary EIA

TOR terms of referenceUN United Nations

UN ECE United Nations Economic Commission for Europe

Lis of Acronyms


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Background

Environmenal Impac Assessmen (EIA) is a cenral process in susainable developmen o reduceand miigae anicipaed impacs o developmen projecs. Every naional governmen in mainlandSouheas Asia has, or is in he process o developing, legislaion on environmenal governance and shares acommon ineres in implemening and enorcing EIA procedures. While here is a growing awareness o heimporance o good EIA policy and pracice, experience rom muliple sakeholder groups highlighs hacriical gaps sill remain in is effecive implemenaion, paricularly wih respec o public paricipaion.These acors, along wih he increasing invesmens in large-scale regional developmen projecs andassociaed wih he ASEAN Economic Communiy, reveal new opporuniies o advance EIA policy andpracice and address he regional dimensions and impacs o invesmens.

Objecive

The objecive o his Repor is o conduc a comparaive analysis o EIA laws, policies, regulaions, andguidelines in he Lower Mekong counries Cambodia, Lao PDR, Myanmar, Thailand, and Vienam in ordero deermine exising regional harmonizaion, ideniy gaps, and recommend opions or developing a seo sandards ha can accompany he EIA process in order o respond in a regional manner o social andenvironmenal impacs rom large-scale developmen and inrasrucure projecs.

Key Quesions

This Repor examines exising laws, policies, regulaions, and guidelines in each Lower Mekong counry,

and relevan lieraure, o answer he ollowing our quesions : 1) Wha are he specific provisions or public paricipaion in EIA? 2) To wha degree are he exising naional EIA rameworks already harmonized across he Lower

Mekong counries? 3) Wha major gaps exis, paricularly wih respec o public paricipaion processes? 4) Wha specific recommendaions can be made or srenghening he EIA process naionally and

regionally, specifically wih respec o meaningul public paricipaion and sakeholder engagemen?

This Repor also examines some regional EIA approaches o he Mekong River Commission, as well as heAsian Developmen Banks Saeguard Policy Saemen (2009).

EIA and Key Characerisics

EIA is a planning and decision-making ool or a developmen projec aiming o social and environmenalproecion. EIA has been defined by he Inernaional Associaion or Impac Assessmen as a processo ideniying, predicing, evaluaing, and miigaing he biophysical, social, and oher relevan effecs oproposed projecs and physical aciviies prior o major decisions and commimens being made.

The EIA process has been seen orm some ime as an imporan ool o conribue o he susainabledevelopmen agenda. Primarily, Principle 17 o he Rio Declaraion on Environmen and Developmen

(1992) provides ha signaory naions mus underake an EIA or proposed aciviies ha are likelyo have a significan adverse vimpac on he environmen and are subjec o a decision o a compeennaional auhoriy.

Execuive Summary


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Effecive EIA implemenaion is achieved hrough he adopion and applicaion o seven key principles.These include: Proponen is ully responsible or heir projec including he cos o he applicaion and assessmen

process; Reliance on paricipaory approaches: genuine and meaningul public paricipaion a all sages

o he process, and ull access o inormaion by he public; Applicaion o he precauionary principle; Applicaion o he principle o inergeneraional equiy; Conservaion o biological diversiy and ecological inegriy is a primary consideraion; Improved valuaion, pricing and incenives; and Effecive compliance and enorcemen.

One o he key principles o effecive EIA is public paricipaion. As a sysemaic process, EIA providesopporuniies or public paricipaion a differen sages. The quesion o wha may consiue public

paricipaion is wide and varied, however, here is a need or public paricipaion a our paricular sageso he EIA process: 1) Screening/scoping; 2) Preparaion o EIA repor by he EIA consulan; 3) Evaluaion o EIA repor by he delegaed auhoriy (e.g., Minisry o

Environmen); and 4) Pos-approval monioring, compliance, and enorcemen.

I is clear ha i public paricipaion and communiy involvemen can occur a he earlies sage in he EIAprocess, namely he scoping/screen sage, his will help o ensure ha he views o he communiy and

projec affeced people (PAP) are mos srongly considered by he EIA consulan, he projec proponen,and he governmen. Communiy views may lead o more significan projec modificaions i expressedduring he design and evaluaion sages o he projec. Moreover, public paricipaion a he pos-approvalsage, where correcive measures and adapive managemen o a projec may be necessary, can also makeimporan conribuions o projec susainabiliy.

Key Findings

To varying degrees, all Lower Mekong counries have esablished and applied EIA processes wih suppor rom

bilaeral and/or mulilaeral parners aimed a srenghening he effeciveness o is applicaion owardssusainable developmen. The Lower Mekong counries have adoped he same general approach o EIAand environmenal assessmen, which is mandaed under an environmenal agency (e.g. he Minisry oEnvironmen or Minisry o Naural Resources and Environmen). EIA processes consis o more-or-lesssimilar procedures, involving screening, scoping, impac assessmen, approval, and pos-decision imple-menaion. EIA processes in he Lower Mekong counries are commonly backed by legislaion in eachcounry, ofen wih he suppor o regulaions and guidelines or paricular secors or areas.

In general, he implemenaion o EIA processes in Lower Mekong counries ofen commences oo lae,when he major projec decisions (including sie, design, and consrucion preparaion) already have beenmade, hereby rendering he EIA process a ormaliy.

For major projecs, he environmenal impac is assessed a he naional level and requires coordinaionbeween differen minisries. In he cases o Cambodia, Thailand, and Vienam, he auhoriy besowed


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upon he environmen minisry as he responsible body or assessing and managing he EIA process isofen rumped by more powerul, ofen secoral minisries such as he Minisry o Agriculure, Foresry,and Fisheries in Cambodia; he Minisry o Agriculure and Cooperaives in Thailand; and he Minisry oPlanning and Invesmen in Vienam. Developmen-orienaed bodies such as he Council or he Developmeno Cambodia or he Myanmar Invesmen Commission ofen operae in a manner han can reduce he abiliy

o he environmen minisries o promoe bes pracice or EIA.

Public paricipaion in he EIA process exiss in he legal provisions o each counry along wihsupporing guidelines. Table 1 summarizes legally mandaed public paricipaion wihin in he EIA processin each o he Lower Mekong counries.

Table 1. Legal mandaes for public paricipaion in EIA in he Lower Mekong counries

*Year o he official esablishmen o EIA in each counry

Public paricipaion occurs commonly during he EIA preparaion and evaluaion sages, generally wih anexplici secion in he EIA repor describing he public paricipaion process underaken. Mos counrieshave a peer review o EIA repors by scieniss and/or an independen body beore making a final decision.A ormal complains and grievance mechanism is only required in he Lao PDR legislaion.Overall, here are differences in he deails o public paricipaion, including he meaning o public paricipaion,process, mehods, conen, and so on.

Across he region, here are a number o gaps and weaknesses in public paricipaion in he EIA process.The ollowing poins reflec he mos common areas o weakness in he curren EIA regimes in he region.

Under exising laws and regulaions, public paricipaion is mosly encouraged bu no mandaory,hus in pracice public paricipaion is deermined by he projec proponen.

Public paricipaion provisions do no menion how he public should be inormed abou he EIAprocess, he venue a which he public should gain access o EIA repors, and a which sages o

he EIA process he projec developers should involve public paricipaion. Guidelines on publicconsulaion are oo general concerning wha ype o mehodology and approach shall be usedduring consulaions.

Legal requiremens or he incorporaion o public commens and inpus ino he EIA reporsare no saed (and hus mos probably no aken ino consideraion in he selecion o miigaion

measures). There is no legal requiremen or EIA repors o provide reasons or approval or rejeciono public commens (only o lis commens as par o a public paricipaion annex o he EIA repor).


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Access o projec inormaion and EIA repors can be limied. Wihou clear laws and guidelines

or public access o environmenal inormaion i is difficul o have effecive public consulaion.

Curren regulaions and guidelines or public consulaion and paricipaion in he EIA process

generally end when he environmenal compliance cerificae (ECC) is approved. The lack o atenion

o he involvemen o he public and he role o civil sociey afer EIA repor approval when projec

aciviies have been auhorized o begin in he implemenaion sage is an ousanding weakness

in EIA legislaion and policy.

Public paricipaion plays an imporan role no only in projec design, impac assessmen, and

developmen o alernaive miigaion measures, bu also in he implemenaion o he miigaion

measures and ongoing projec monioring as idenified in he Environmenal Managemen Plan (EMP).

Public involvemen in he EIA process should go urher o include sakeholder inpu and consulaion

during he pos-approval monioring, compliance, and enorcemen sage o projec implemenaion as well.

To help address hese idenified weaknesses, his Repor recommends he developmen o Guidelines

or Public Paricipaion in EIA. I is recommended ha he Guidelines have a shor, prescripive orma

wih a checklis o assis all sakeholders in improving public paricipaion in he EIA process. Keeping he

Guidelines shor will aciliae boh ranslaion and comprehension by PAP and oher relevan sakeholders. By

including checkliss, i will provide PAP and relevan governmen minisries wih an effecive managemen ool.

The ocus o hese Guidelines should be primarily on our sages o he EIA process : (i) screening /scoping ;

(ii) EIA preparaion ; (iii) EIA evaluaion ; and (iv) pos-approval monioring, compliance, and enorcemen.

As par o he developmen o Guidelines or Public Paricipaion in EIA, a ormal scoping sage wih public

paricipaion should also be esablished, along wih provisions o enable sakeholders o be involved in

he pos-approval monioring, compliance, and enorcemen sage.

The ollowing recommendaions relec he need o clariy and srenghen public paricipaion in

developmen projecs in line wih bes pracices or EIA and based on inernaional principles o EIA. The

developmen o Guidelines or Public Paricipaion in EIA ha can be applied across he Lower Mekong

counries would have significan benefis o all sakeholders by providing clear, consisen and applicable

approaches or meaningul engagemen across he region.


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Susainable Developmen

The concep o he healh and proecion o he environmen emerged long ago in differen par o he

world. Some counries became concerned wih hese maters a an earlier sage, including Canada, France,

he Unied Kingdom, and he Unied Saes. Susainable developmen emerged soon afer, however

awareness o and advancemens in susainable developmen were limied o Canada, he Unied Saes,

and some European counries. Since 1992, he Rio Declaraion on Environmen and Developmen,

adoped a he Unied Naions Conerence on Environmen and Developmen, has become a power-

ul insrumen in he promoion o susainable developmen, defined as developmen ha mees he

needs o he presen wihou compromising he abiliy o uure generaions o mee heir own needs. 1

An imporan ool, he environmenal impac assessmen (EIA), was endorsed by he Rio Declaraion or

applicaion o achieve susainable developmen goals in each counry and region worldwide.

EIA and is Roles

Principle 17 o he Rio Declaraion saes Environmenal impac assessmen, as a naional insrumen,

shall be underaken or proposed aciviies ha are likely o have a significan adverse impac on he

environmen and are subjec o a decision o a compeen naional auhoriy.

Nearly all counries o he world employ EIA processes. I has been suggesed ha 191 o he 193 Unied

Naions Member Saes eiher have naional legislaion or have signed some orm o inernaional legal

insrumen ha reers o he use o EIA.2The worldwide spread o EIA was assised by Principle 17 o he

Rio Declaraion ha provides ha signaory naions mus employ EIA processes.3

EIA was firs inroduced in he Unied Saes in he early 1970s wih he Naional Environmenal PolicyAc (NEPA).4Since hen he conceps and pracices o EIA have developed significanly. In 1996, he

Inernaional Associaion or Impac Assessmen in Shanghai launched he Review o he Sudy o he

Effeciveness o Environmenal Assessmen (he 1996 Review).5I idenified key issues or he developmen o

effecive environmenal assessmen (EA) pracice and suggesed our necessary ingrediens o effecive

applicaion :

Appropriae iming in iniiaing he assessmen so ha he proposal is reviewed early enough o

scope or developmen o reasonable alernaives;

I. Background

1. WCED (1987).2. Morgan (2012).3. Morrison-Saunders and Reie (2012), pp. 34-41.4. Ellio (2014), p. 103.5. Sadler (1996).


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Clear, specific direcions in he orm o erms o reerence or guidelines covering prioriy issues,

imelines, and opporuniies or inormaion and inpu a key decision-making sages;

Qualiy inormaion and producs osered by compliance wih procedural guidelines and use o

good pracices ; and

Recepiviy o decision makers and proponens o he resuls o he EA, ounded on good communicaion and accounabiliy.

Furher, he 1996 Review proposed wo subsanive purposes o EA :

Firs,he immediae aim is o aciliae sound, inegraed decision-making in which environmenal

consideraions are explicily included. The EA process does so by providing clear, well-organized

inormaion on he environmenal effecs, risks, and consequences o developmen opions and

proposals.

Secondly,he EA process is usually (bu no universally) direced oward achieving or supporingulimae goals o environmenal proecion and susainable developmen. These reerence or end

goals are variously phrased and ramed in EA laws and policies, as are he specific objecives o be

me by he process.6

6. Sadler (1996), p. 13.



Key Principles of EIA

Effecive EIA is achieved hrough he adopion and applicaion o key principles. These include: Proponen is ully responsible or heir projec including he cos o he applicaion and assessmen

process;

Reliance on paricipaory approaches: genuine and meaningul public paricipaion a all sages

o he process, and ull access o inormaion by he public ;

Applicaion o he precauionary principle ;

Applicaion o he principle o inergeneraional equiy ;

Conservaion o biological diversiy and ecological inegriy is a primary consideraion ;

Improved valuaion, pricing and incenives; and Effecive compliance and enorcemen.

To achieve he over-arching goal o susainable developmen, EIA processes should use key assessmen

mechanisms. These mechanisms reflec curren norms on inernaional environmenal law and have become

key eaures o susainable developmen over he pas wo decades. Many o hese mechanisms are

included wihin he Rio Declaraion.

As se orh in he Rio Declaraion, he five primary mechanisms are :

1) Reliance on paricipaory approaches (Principle 10);

2) Applicaion o he precauionary principle (Principle 15);

3) Applicaion o he principle o inergeneraional equiy (Principle 3);

4) Conservaion o biological diversiy and ecological inegriy is a primary consideraion (Principle 4);

5) Improved valuaion, pricing and incenives (Principles 8, 12, 13 and 16).

Reliance on paricipaory approaches

A cenral eaure o public paricipaion in EIA processes is o maximize opporuniies or he

paricipaion o all sakeholders, including oher governmen deparmens, NGOs, CSOs, he general

communiy, wheher direcly or indirecly affeced, indigenous communiies and he corporae secor. Bes

pracice in EIA will provide or he ollowing: public paricipaion a all sages o he process, rom scoping

o decision-making; communiy paricipaion in he compliance and monioring sage o he developmen;

and specific paricipaion sraegies or women and indigenous people and heir communiies.7

7. Rio Declaraion 1992, Principles 20 and 22.

II. Key Principles of EIA and Procedures



Applicaion of he Precauionary Principle

Where here are hreas o serious or irreversible environmenal damage, lack o ull scienific cerainy

should no be used as a reason or posponing measures o preven environmenal degradaion. In he

applicaion o he precauionary principle, public and privae decisions should be guided by :

1) C areul evaluaion o avoid, wherever pracicab le, serious or irreversibl e damage o he

environmen ; and

2) An assessmen o he risk-weighed consequences o various opions.8

Inergeneraional equiy

The principle provides ha he presen generaion should ensure ha he healh, diversiy and

produciviy o he environmen is mainained or enhanced or he benefi o uure generaions. This requires

consideraion o he impac o a proposed aciviy or projec aking ino accoun any long-erm impac.

This could also require consideraion o projec closure and sie-deconaminaion.

Conservaion of biological diversiy and ecological inegriy

The saring poin or he assessmen o any developmen proposal is ha conservaion o biological diversiy

and ecological inegriy should be a undamenal consideraion.9This does no mean ha no projec can be

approved ha will harm he environmen. I merely ensures ha harm and damage o he environmen and

sociey mus be jusified by he projec. The projec proponen and EIA consulan mus evaluae variousopions and propose ways o avoid or reduce he poenial harm. I harm is unavoidable, he projec plan

mus include measures o provide appropriae compensaion or he harm.

Improved valuaion, pricing and incenives

The use o economic ools is inegral o effecive EIA. I is paricularly imporan o accuraely evaluae

he coss and benefis o projecs. Environmenal acors should be included in he valuaion o asses and

services, including ecosysem services. Addiionally he EIA process should adop he principle o hepolluer pays,10meaning ha hose who generae polluion and wase should bear he cos o conainmen,

avoidance, or abaemen.

One oher economic measure is ha he cos o goods and services should include he ull lie cycle o

providing hose goods and services, including he use o naural resources and asses and he ulimae

disposal o any wase.11

8. Iner-Governmenal Agreemen on he Environmen, signed by he Ausralian Governmen and is Saes and Terriories and Local Governmen, May 1, 1992, www.environmen.gov.au /abouus/esd /publicai on s/inergovernmenal -agreemen.9. See or example he Naional Environmen Policy o Myanmar 1994 ha makes environmenal proecion he primary objecive in seeking developmen.10. Rio Declaraion, Principle 16.11. Rio Declaraion, Principles 8, 13, and 16.



Generic EIA Process

Alhough here are diverse erms in EIA procedures and process, here are broad similariies across EIA

heory and pracice. Figure 1 depics a simplified general pracice EIA process ha includes clear provision

or public consulaion during he process o EIA preparaion and assessmen.

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There is also he opporuniyor communiy paricipaion in he operaion sage o he projec and in compliance and enorcemen.

The ollowings are he sages o he simplified general pracice EIA process. I is useul o review his

process in order o gain a beter undersanding o EIA heory, policy and pracices in he Lower Mekong

counries.

Screening - deermines wheher or no a proposal should be subjec o he EIA process and, i

so, a wha level o deail. In accordance wih Principle 17 o he Rio Declaraion, he usual rigger

or he preparaion o he EIA process is he desire or regulaory approval o a developmen

projec ha is likely o have a significan adverse impac on he environmen or sociey. Projecs wihou a significan adverse impac may sill require some orm o environmenal and social

impac assessmen bu o a lesser degree. Counry environmenal assessmen sysems have ofen

used a descending level o projec assessmen rom EIA, o iniial environmenal examinaions

(IEEs), o planning assessmen. All Lower Mekong counries have adoped a screening process

ha liss cerain projecs ha require eiher EIA or some lesser orm o environmenal assessmen.

Scoping - idenifies he issues and impacs ha are likely o be imporan and esablishes he

erms o reerence (TOR) or he EIA repor. Scoping is usually he sage when he

projec proponen considers he speciic issues ha are o be addressed by he EIA

process. These are usually developed in he TOR. Alhough his sep is usually carried ou

by he projec proponen ogeher wih he EIA consulan, some counries (such as Cambodia

and Lao PDR) have recognized he benefis o including he communiy a his preliminary sage.

Examinaion of alernaives- esablishes he preerred or mos environmenally sound and

benign opion or achieving proposal objecives.

Impac analysis- idenifies and predics he likely environmenal, social and oher relaed effecs

o he proposal.

Miigaion and impac managemen - esablishes he measures ha are necessary o avoid,

minimize or offse prediced adverse impacs and, where appropriae, incorporaes hese ino anenvironmenal managemen plan or sysem.

Evaluaion of significance - deermines he relaive imporance and accepabiliy o residual

impacs (i.e., impacs ha canno be miigaed).

Preparaion of environmenal impac saemen (EIS) or repor - documens clearly and im

parially he impacs o he proposal, he proposed measures or miigaion, he significance o

effecs, and he concerns o he ineresed public and he communiies affeced by he proposal.

12. Li (2008), p. 22.



Review/evaluaion of he EIS - deermines wheher he repor mees is TOR, provides a s

aisacory assessmen o he proposal(s) and conains he inormaion required or decision

making.

Decision making- approves or rejecs he proposal and esablishes he erms and condiions or

is implemenaion.

Follow up- ensures ha he erms and condiion o approval are me; moniors he impacs o

developmen and he effeciveness o miigaion measures; srenghens uure EIA applicaions

and miigaion measures; and, where required, underakes an environmenal audi and process

evaluaion o opimize environmenal managemen.

Figure 1. Simplified EIA process



Public Paricipaion in EIA

Principle 10 o he Rio Declaraion saes :

Environmenal issues are bes handled wih he paricipaion o all concerned ciizens, a he relevanlevel. A he naional level, each individual shall have appropriae access o inormaion concerning he

environmen ha is held by public auhoriies, including inormaion on hazardous maerials and aciviies

in heir communiies, and he opporuniy o paricipae in decision-making processes. Saes shall

aciliae and encourage public awareness and paricipaion by making inormaion widely available.

Effecive access o judicial and adminisraive proceedings, including redress and remedy, shall be

provided.

Inernaionally, public paricipaion is an inegral par o he environmen assessmen process. As a paro a well-conduced EIA, public paricipaion can assis he process wihou significan economic coss.

Sudies have indicaed ha EIA accouns or less han 2% o projecs coss, or large-scale projecs his

could be as low as 0.7%.13

Sewar and Sinclair sae, he beneis o public paricipaion have been clearly described in boh

heoreical and pracical erms . . . [bu] he design and implemenaion o specific public paricipaion

programs remain conenious.14Some benefis may be inangible, such as beter decision-making or he

developmen o greaer rus in governmen agencies. Oher benefis, such as beter projec design or

efficien environmenal managemen or an effecive grievance process, may be difficul o quaniy.15

Also, because public paricipaion alls ino a broad specrum o approaches and pracices, choosing he

mos effecive and relevan approach can be difficul. The Inernaional Associaion or Public Paricipaion

(IAP2) has developed a specrum or public paricipaion (Figure 2).

13. Ellio (2014), p. 29.

14. OFaircheallaigh (2010), p. 19.

15 . See Ellio (2014), p. 99 and ollowing or an evaluaion o he role o public paricipaion in he EIA process.



Figure 2. Inernaional Associaion for Public Paricipaion (IAP2) specrum for public paricipaion

Source : rom www.iap2.org.au.

Anoher approach o public paricipaion places he purposes o public paricipaion in hree broad areas,

depending on heir relaionship o hose processes :

As an aid o decision-making which remains separae rom he paricipaing public;

As a mechanism or achieving a role or he public as join decision makers; and

As a mechanism or reconsiuing decision-making srucures. 16

I has been suggesed ha where he underlying raionale or seeking public paricipaion is gaining

access o inormaion, decision makers are likely o seek only he degree o paricipaion needed o elici

he required inormaion and no more.

16. OFaircheallaigh (2010), p. 20.



A he oher end o he specrum public paricipaion may be sough by decision makers no jus as a way

o obaining inormaion or esing is robusness, bu also o assis wih problem solving by suggesing

ideas, conceps, soluions and resources ha can be mobilized o address complex environmenal and

social issues. Public paricipaion can be a source o creaiviy and innovaion, allowing decision makers

o draw on alernaives ha are no presen in heir exising array o responses.17

Some observers also have noed ha when NGOs represen a communiy or he public and affeced

communiies are no direcly involved, he ineress o hose communiies ofen will no be ully ariculaed

or represened. This has led o he Peoples EIA approach in Thailand, which aims o aciliae greaer

local and public paricipaion in he EIA process by creaing a space where local people can rame and

ariculae heir needs, values, and prioriies. 18

I is no jus he srenghening o public paricipaion ha is imporan or achieving beter EA in he

region. Oher challenges or EIA have been ideniied. In 2010, he Asian Developmen Bank (ADB)ogeher wih projec parners idenified a number o challenges or EIA. ADB and he Asian Environmena

Compliance and Enorcemen Nework (AECEN) joinly organized a regional workshop eniled

Environmenal Impac Assessmen in Asia: Good Pracices and Capaciy Needsa ADB Headquarers in

Manila, June 910, 2010. During he workshop, paricipans idenified he main capaciy challenges wihin

he region, including he ollowing :

Qualiy o EIAs he qualiy o EIA consulans is currenly no adequae. EIAs are no conduced

wih enough ocus. As a resul, here is a need o develop a se o objecive crieria or selecing

consulans. In addiion, here were no enough saff o review submited EIA repors. Beter

review crieria also need o be developed o assis he review process. Public paricipaion curren EIA pracices generally do no engage he public properly.

Official review genuine public concerns are no adequaely addressed, leading o he lack o

communiy accepance and coninuing opposiion o developmen projecs. The involvemen o

NGOs and oher represenaives o civil sociey needs o be increased especially or complex

projecs.19

17. OFaircheallaigh (2010), p. 21.18. Li (2008), p. 9.19. ADB and AECEN (2010), p. 21.



Overview

The legal requiremens or EIAs in Cambodia are se ou in he Law on Environmenal Proecion andNaural Resource Managemen, 1996 (Chaper III) (EPNRM Law) and he Sub-Decree on EnvironmenalImpac Assessmen, 1999 (EIA Sub-Decree). There are also a number o Prakas20 on he proceduresimplemening he EIA Sub-Decree 1999 : Prakas on Guidelines or Conducing EIA Repor (49 MoE, March 2000); Prakas on Deerminaion o Service Charge or Environmenal Impac Assessmen Repor Review and Follow-up and Monioring o Projec Implemenaion (No. 745, Ocober 2000); Prakas (Declaraion) on General Guidelines or Conducing Iniial and Full Environmenal Impac

Assessmen Repors (No. 376 BRK.BST 2009); Prakas on Regisraion o Consuling Firms or Sudying and Preparing Environmenal and Social

Impac Assessmen Repor (No. 215 Brk MoE 2014); and Prakas on Esablishmen o he Technical Working Group or Reviewing and Commening on he

EIA Repor (No. 063 Pr.k MoE 2014).

There is also a Sub-Decree 146 on Economic Land Concessions (ELC), 2005, which requires environmenalassessmen o ELCs. Aricle 7, clause 5 o Sub-Decree 146 saes ha i he iniial environmenal andsocial impac assessmen indicaes a medium or high degree o adverse impac, arrange or he conduc

o a ull environmenal and social impac assessmen.

Cambodia is currenly preparing a new EIA Law.21However while he final draf is due o be presened ohe Council o Minisers in June 2015, his review examines he exising siuaion under he Sub-Decreeon EIA 1999.

I has been observed ha he Minisry o Environmen (MoE), which is in charge o environmenalassessmens, has remained a relaively powerless agency in naural resource maers, especially whencompared o he Minisry o Agriculure, Foresry, and Fisheries.22This is no helped by he ac ha he EIA

Sub-Decree liss oher governmen agencies as sakeholders in he EIA process (along wih communiyrepresenaives and NGOs) ha can openly challenge an EIA. The agency ha is auhorized o oversee heimplemenaion o he Foresry Law and he 1999 Sub - Decree on EIA is he Minisry o Agriculure, Foresry, andFisheries, wih a rack record o pro-developmen policies in he oresry secor.23

EIA Procedure

The EPNRM Law sipulaes ha an EIA shall be done on every projec and aciviy, privae or public, andshall be reviewed and evaluaed by he Minisry o Environmen beore being submited o he RoyalGovernmen or decision (Aricle 6).

20. A Prakas is a regulaion promulgaed by a Minisry o implemen a law.21. Schule and Seser (2014).22.Li (2008), p. 12.23. Tan (2004), cied in Li (2008), p. 12.

Cambodia

III. Public Paricipaion in EIA in Lower Mekong Counries



Figure 3 reflecs he EIA procedures rom he General Guidelines or Developing Iniial Environmenal

Impac Assessmen (IEIA) Repor and EIA Repor published in Sepember 2009. I should be noed ha

he curren EIA process in Cambodia requires an IEIA or all projecs as a scoping process o deermine

wheher a ull EIA is required.

Figure 3. EIA procedures from he General Guidelines for Developing Iniial and EIA Repors

Source : General Guidelines or Developing Iniial and EIA Repors, MoE, N. 376 BRK.BST, Sepember 2009.

Wih respec o public paricipaion, public involvemen is encouraged in he EIA Sub-Decree (Aricle 1)

bu no concree requiremens are sipulaed. Addiionally, he EIA Sub-Decree conains no requiremens

or consideraion o alernaives or inormaion disclosure. Aricle 7 o he EPNRM Law provides ha he

MoE shall encourage public paricipaion in environmenal proecion and naural resources managemen.

Aricle 8 also requires he MoE o develop a sub-decree on public paricipaion and access o inormaion.To dae his has no been done. The MoE has developed Prakas on preparing an EIA repor.

The responsibiliy or reviewing and monioring EIA or projecs is a wo levels, naional and provincial.

For projecs wih less han US$2 million in invesmen, he responsibiliy or reviewing and monioring

is delegaed o he provincial deparmen o environmen, bu hese deparmens do no have adequae

capaciy or effecive EIA implemenaion. Also, due o weaknesses in he legislaion, i is difficul o

enorce penalies or non-compliance and violaions. The overall effeciveness o EIA implemenaion in

Cambodia is hereore considered o be low.24

24. ADB and AECEN (2010), p. 17.



The EIA Sub-Decree idenifies he specific projec ypes covered by EIA. In oal hese cover our areas :

indusry, agriculure, ourism, and inrasrucure. Under each area here are a number o specific projecs

ypes lised. This lis had been atached as an annex o he EIA Sub-Decree. According o he lis, he

curren EIA in Cambodia is projec-based raher han reerenced o significan environmenal impac.

All invesmen-projec applicaions and all projecs proposed by he sae shall have an IEIA, repor opre-easibiliy sudy, or an EIA as specified in Aricle 6 o EPNRM Law (Aricle 7). A copy mus be submited

o he Projec Approval Minisry/Insiuion and he MoE.

The MoE is o review and provide recommendaions on he IEIA or he EIA o he compeen

organizaion wihin he period deermined in he Law on Invesmen o he Kingdom o Cambodia. I he

MoE does no respond o he findings and recommendaions (as described in Aricle 15 and 17) wihin a

30-day period, he Projec Approval Minisry/Insiuion will assume ha he revised IEIA or EIA repor

has complied wih he crieria o his sub-decree. The EIA Sub-Decree sipulaes 30 days as he iming or

processing an EIA and responding o he projec proponen and relevan minisry. The projec owner mus

acknowledge he findings and recommendaions o heir IEIA/EIA repor(s) ha have been approved by

he MoE, beore hey can proceed wih projec implemenaion.25

EIA Pracices in Cambodia wih Respec o Public Paricipaion

The EIA Sub-Decree saes ha public paricipaion in he implemenaion o he EIA process is

encouraged in order o ake ino accoun he concepual inpu and suggesions o he public prior o he

implemenaion o any projec. According o he general guidelines, public paricipaion is implemeneda hree levels :

1) Local level - projec developers, local auhoriies such as heads o villages, chies o communes,

and affeced people or represenaives o local communiies;

2) Provincial level - projec developers, concerned agencies a he provincial level, local auhoriies

(disric level), and NGOs; and

3) Naional level - projec developers, line minisries, provincial level auhoriies, and NGOs.

Projec proponens and EIA consulans are responsible or implemening public paricipaion provisions

in he EIA. As hese are no specific here are no legal requiremens or sandards or EIA consulans ocomply wih. There is also no sandard agains which he MoE can measure he level or effeciveness

o public consulaion unless by reerence o saeguards issued by ADB or Inernaional Finance

Corporaion (IFC).

I has been recognized ha ha only a small number o projecs complee he IEIA / EIA process under

he exising EIA Sub-Decree. A clear consequence is he considerable weakness o he EIA process o

effecively engage wih affeced communiies.

25. Li (2008), p. 19.



Overview

Since he esablishmen o Lao PDR in 1975 and he adopion o a new consiuion in Augus 1991, anumber o laws and regulaions have been creaed. The Minisry o Science and Technology was creaedin 1984 and became he Science, Technology and Environmen Organizaion in 1993, changing in 1999 ohe Science, Technology and Environmen Agency under he Prime Minisers Office. The Agency becamehe Waer Resources and Environmenal Adminisraion in 2008, and was hen upgraded ino he newMinisry o Naural Resources and Environmen (MONRE) in 2011 by merging wih pars o he NaionalLand Managemen Auhoriy and he Geology Deparmen, as well as he Proecion and ConservaionDivisions o he Deparmen o Foresry.26

The 1999 Lao Environmenal Proecion Law (EPL 1999) esablished a ramework or he

managemen o environmenal resources wih he objecive o conserving and aciliaing hesusainable use o naural resources. The Environmenal and Social Impac Assessmen (ESIA) Deparmenwihin MONRE is responsible or overseeing he implemenaion o he EIA process. MONRE issuesenvironmenal compliance cerificaes (ECCs) or projecs ha have successully compleed he EIAprocess and coordinaes wih line agencies o carry ou ollow-up (compliance) monioring and evaluaion.Projec proponens are required o submi regular monioring repors o MONRE based on heirEnvironmenal Managemen and Monioring Plans (EMMPs).27

Under he EPL 1999 here is an obligaion o proec he environmen in Aricles 4 and 5 and he requiremen

o conduc EIA conained in Aricle 8.

There have been a number o changes in he environmenal assessmen regime in Lao PDR over he pasdecade. The firs EIA regulaion was issued in 2000 and upgraded ino Lao PDR Decree o EnvironmenalImpac Assessmen 2010 (EIA Decree 2010), he mos recen EIA decree.28I prescribed he hemaicissues o be covered and he oupus expeced a he differen sages o he EIA process (preconsrucion,consrucion, operaion, and closure sages), and i addresses wo caegories o invesmen projecsrequiring environmenal and social assessmens: Caegory 1: Invesmen projecs, which are small or creae ewer impacs on he environmen and

sociey, and require IEEs; Caegory 2: Large invesmen projecs which are complicaed or creae subsanial impacs onhe environmen and sociey, and require EIAs.

The Miniserial Agreemen on he Endorsemen and Promulgaion o Lis o Invesmen Projecs andAciviies Requiring or Conducing he Iniial Environmenal Examinaion or Environmenal and SocialImpac Assessmen provides he lis o projecs ha are in Caegory 1 and Caegory 2. In accordance wihhe Prime Minisers Decree on Compensaion and Resetlemen o People Affeced by DevelopmenProjecs No. 192/PM, all projecs ha require resetlemen and compensaion, and hydropower projecsover 15 MW require ESIA.

26. Wayakone and Makoo (2012), p. 1655.27. Wayakone and Makoo (2012), p. 1658.28 .No. 112/PM, 16 February 2010.

Lao PDR



In December 2013 wo Miniserial Decrees were passed o implemen he provisions o Aricles 21

and 22 o he Law on Environmenal Proecion (Amended) No. 29/NA 2012. These were Process o

Environmenal and Social Impac Assessmen o he Invesmen Projecs and Aciviies No. 8030/MONRE,

17 December 2013 (Miniserial Insrucion on ESIA 2013) and he Miniserial Insrucion on he Process o

Iniial Environmenal Examinaion o he Invesmen Projecs and Aciviies No.8029/MONRE, 17 December

2013. These Decrees mainain he disincion beween he IEE and EIA processes. I appears rom hese

decrees ha he EIA Decree 2010 has been replaced.

In Lao PDR EIA is now subjec o he Miniserial Insrucion on ESIA 2013. This covers every invesmen

projec ha causes or is likely o cause environmenal and social impac (Aricle 1.1). Aricles 2.14 and 2.15

provide deails o public paricipaion in EIA. These are discussed below.

EIA Procedure

The Lao PDR Environmenal Impac Assessmen Guidelines 2012 (EIA Guidelines 2012) conain

deailed provisions or he preparaion o EIA and IEE repors in Lao PDR. The guidelines run o some 140

pages. The EIA Guidelines 2012 were developed by MONRE in consulaion wih line agencies, provincial

governmens, projec developers, and EIA consulans, and wih echnical assisance rom a eam o

expers rom he inernaional consuling company Gronmij and he Finnish Environmen Insiue

(SYKE).29The EIA Guidelines 2012 were based on pracical experience in preparing and reviewing EIAs in

Lao PDR, as well as in oher developing and indusrialized counries.

The EIA Guidelines 2012 were draed in line wih he ollowing : he Lao PDR EIA Decree 2010 orcaegory 2 projecs (i.e., hose idenified as having significan poenial impacs [Aricle 2]); recen

guidelines issued under he Decree; and oher legislaion and guidelines in Lao PDR. The EIA Guidelines 2012

are also broadly in accordance wih he Miniserial Insrucion on ESIA 2013. However, he EIA Guidelines

2012 were developed o implemen he EIA Decree 2010. This Decree appears o have been repealed by

he Miniserial Insrucion on ESIA 2013. In which case, i is likely ha he EIA Guidelines 2012 are no longer

applicable o EIA in Lao PDR. Neverheless, or he purposes o his Repor an examinaion has been made

o he EIA Guidelines 2012.

The EIA Guidelines 2012 ideniy ha he normal projec planning cycle will generally include heollowing phases:

Pre-easibiliy;

Feasibiliy;

Design and procuremen;

Pre-consrucion;

Consrucion or survey-exploraion;

Operaion; and

Decommissioning, closure and pos-closure.

29. EIA Guidelines 2012, Preace.



During each phase, he developer is required o underake invesigaion and consulaion aciviies o

minimize he environmenal and social impacs o a projec.

The EIA Guidelines 2012 provide a deailed overview o EIA process:

EIA is a legal requiremen or all projecs ha may have a significan adverse impac on he environ men and/or sociey. EIA is hereore a regulaory ool o ideniy and minimize adverse environmenal

and social impacs, and o ensure ha proper managemen and miigaion measures are implemened.

An EIA should consider he environmenal issues in all projec phases, including planning, pre-easibiliy,

easibiliy, design and procuremen, preconsrucion, consrucion, operaion, decommissioning,

closure, and posclosure. The EIA helps he projec developer o prepare a projec in consideraion

o is consequences on he environmen wihou hreaening is echnical and economic easibiliy.

An EIA should consider all biological, physical, social, economic, healh culural and visual componens

o he environmen ha could be affeced by a projec. I offers he possibiliy o analyzing and defining

he relaions and ineracions beween he acors having an influence on he ecosysems, resources

and qualiy o lie o he populaion and communiies.30

The EIA Guidelines 2012 conain deailed definiions o assis in he implemenaion o EIA.

The Definiions also include reerences o public paricipaion :

Involvemen he process o consuling and disseminaing inormaion on an invesmen projec o

gaher commens rom people or groups who are likely o be affeced by, gain benefis rom, or have

an ineres in he projec. The commens are o be used as reerences in preparing and deliberaing on

an iniial environmenal examinaion (IEE), environmenal impac assessmen (EIA) repor, or environ

menal and social managemen and monioring plan (ESMMP). Involvemen can ake he orm o

meeings wih sakeholders a all levels, or wih hose who are likely o be affeced by he invesmen

projec during all phases o he projec.

Projec Affeced People a naural person, legal eniy, or organizaion ha is direcly or indireclyaffeced, or likely o be affeced, by he invesmen projec. The people may be affeced by legal

expropriaion o land or real esae, changes o land caegory, and impacs on he ecological and

environmenal sysems in he heir setlemen areas.

Sakeholders persons, groups or communiies exernal o he core operaions o a projec who may

be affeced by he projec or have an ineres in i. This may include individuals, businesses, communiies,

or local governmen (IFC, 2012).

30. EIA Guidelines 2012, p. 6.



One o he key issues in he Miniserial Insrucions on EIA (2013) is he ocus on scoping and screening.

Alhough projec scoping and screening are no defined in he Miniserial Insrucions on EIA 2013, here

are deailed definiions in he EIA Guidelines 2012.

Projec Screeningmeans sudy and analysis o daa conained in a proposed invesmen projec o

deermine wheher he projec requires iniial environmenal examinaion (IEE), or environmenalimpac assessmen (EIA).

Scoping means he process o deermining he scope o he environmenal impac assessmen

(EIA), i.e., he daa ha need o be colleced and analyzed o assess he impacs o he invesmen

projec on he environmen. The primary objecive o he scoping process is o produce a erms o

reerence (TOR) or preparaion o an environmenal impac assessmen repor.

The EIA Guidelines 2012 ideniy he main responsibiliies o he projec developer. These are :

To send an invesmen applicaion orm o MONRE o enable MONRE o deermine he scale o

he projec ;

To prepare a scoping repor and TOR or he EIA repor;

To prepare he EIA repor, environmenal and social managemen and monioring plan (ESMMP),

and developmen plans;

To conduc public consulaion meeings during preparaion o he EIA;

Incorporae miigaion measures in he design and procuremen documens;

To improve he ESMMP requenl y, and implemen he miigaion measures during he

pre-consrucion, consrucion, operaion and decommissioning, closure and pos-closure phases;

To carry ou monioring and audiing aciviies as sipulaed in he ESMMP.31

Chaper 2.3 o he EIA Guidelines 2012 oulines he EIA process. The EIA process requires compleion o

a screening and scoping repor and TOR or EIA aciviies prior o preparaion o he EIA repor. For he

projec screening, he projec developer shall submi an invesmen applicaion o MONRE. The projec

developer shall uilize he lis o projecs subjec o EIA, in addiion o considering he significance o he

poenial impacs o he projec. MONRE will make a decision based on he inormaion provided by he

projec developer as o wheher he proposed projec will have o underake an IEE or an EIA.

During he projec scoping, he projec developer will prepare a scoping repor and deailed TOR or

preparaion o he EIA repor.32Secion 3 o he EIA Guidelines 2012 provides guidance on how o prepare

he scoping repor and he TOR. MONRE will revise, commen on and approve he scoping repor and TOR

beore he projecdeveloper begins preparing he EIA repor. Preparaion o he EIA repor, ESMMP and

developmen plans will require consulaions wih he local auhoriies and PAP.

31. EIA Guidelines 2012, p. 9.32. Miniserial Insrucions on EIA (2013), Par II, Screening and Scoping.



The EIA Guidelines 2012 describe his consulaion process. Figure 4 indicaes he mos imporan seps

o underake during preparaion o EIA repors, especially wih regard o public consulaion. MONRE will

conduc an adminisraive and echnical review o he EIA repor, ESMMP and developmen plans. The

projec developer will be required o revise he EIA repor, ESMMP and developmen plans o comply wih

he consolidaed commens provided by MONRE and hose o he panel o expers.

Figure 4. Responsibiliies during preparaion of EIA repors

Source : EIA Guidelines 2012, p. 12.

Scoping

Scoping is he irs phase in carrying ou EIA sudies. 33The projec developer is responsible or

preparing he scoping repor and TOR or preparing he EIA sudy. When compleed, hese documens shall

be sen o MONRE or commens and approval wihin 15 days under Ar 2.4 o he Miniserial Insrucionson EIA (2013).

33. Miniserial Insrucions on EIA (2013), Aricle 2.3.



Scoping is a undamenal phase in he EIA process,34which :

Deines he sudy area, area o inluence, ime boundaries, projec phases, and poenial

sakeholders;

Sars he process o undersanding he applicable regulaions and sandards, and heir conex

or projec design and compleion o he EIA process; Makes a provisional idenificaion o impacs, which provides ocus on he environmenal and

social issues ha need o be addressed in subsequen EIA sudies;

Provides an indicaion o wha baseline daa and inormaion are required, and how o obain i ;

Provides an opporuniy or consulans, relevan auhoriies, projec developers, ineresed and

aeced paries o express heir views and concerns regarding he proposal beore an EIA

proceeds;

Enables an efficien assessmen process ha saves ime, resources, coss and delays;

Idenifies poenially-affeced communiies and oher sakeholders wih an ineres in he projec.

During scoping, he likely key environmenal impacs and risks o he projec are ideniied in a

preliminary manner. The scoping phase esablishes he ramework o aciviies and impacs ha require

urher invesigaion during he EIA sudy. One o he main reasons or scoping is o limi urher

invesigaion o hose issues ha are mos imporan or decision-making and efficien, susainable

projec execuion.

According o he EIA Guidelines 2012, he scoping repor should include he ollowing main secions.

A proposed able o conens or he scoping repor is presened in Appendix 2 o he Guidelines. Execuive summary;

Conex o he projec;

Overview o he policy, legal and insiuional ramework;

Projec descripion and alernaives;

Descripion o he environmen;

Key poenial environmenal impacs and miigaion measures;

Public consulaion and disclosure; and

Conclusions and recommendaions.

Following scoping, MONRE will review he scoping repor and approve he TOR.35

The projec proponen is hen required o prepare he ESIA repor including he ESMMP. The ESIA repor

will be reviews by MONRE in conjuncion wih oher line agencies. MONRE is required o hold consula-

ion meeing wih relevan sakeholders including PAP and provide commens o he projec proponen.

This may require urher assessmen i resetlemen is required.36The ESMMP has o be prepared in

Lao language and is subjec o review and approval prior o he issuance o he ECC by MONRE. The ECC

documen is he ormally approval he ESIA repor and he ESMMP. MONRE is able o suspend he

ECC should he projec proponen no comply wih he ECC or he ESMMP.

34. EIA Guidelines 2012, p. 13.35. Miniserial Insrucions on EIA (2013), Aricle 2.4.36. Miniserial Insrucions on EIA (2013), Aricle 2.8.



EIA Pracices in Lao PDR wih Respec o Public Paricipaion

The involvemen o PAP and oher sakeholders is oulined in Miniserial Insrucions on EIA (2013)Aricles 2.14 and 2.15 however hese are airly limied o receiving inormaion abou he projec andparicipaing in consulaion meeings. While he projec proponen is required under Miniserial

Insrucions on EIA (2013) Aricle 2.18 o provide inormaion o MONRE, Aricle 2.20 deails heinormaion o be made available o PAP and oher sakeholders by he projec proponen.

This includes : Inormaion abou he projec proponen; The Social and environmenal impacs o he projec; The ESIA repors; Miigaion measures proposed; The proposed budge or ESMMP; and

Any breaches o he obligaions o he projec proponen.

Wih respec o public consulaion in EIA, Aricle 2.5 o he Miniserial Insrucions on EIA (2013) andsecion 3.8 o he EIA Guidelines 2012 on Public Consulaion and Disclosure deail he inormaion requiredo be included in he EIA repor.37Involving he public in he preparaion o he EIA repor is undamenalo increasing he undersanding and accepance o he projec, o undersanding how he projec mayaffec heir living condiions, as well as o ideniying impacs and issues ha are no immediaely obviouso he eam preparing he EIA repor.

In he Lao PDR, he projec developer shall underake a process o consulaion during he EIA sudyinvolving he affeced communiies and he projec sakeholders.38According o he EIA Guidelines 2012consulaion shall be conduced in coordinaion wih local auhoriies on a coninuous basis saring asearly in he EIA process as possible.

According o he EIA Guidelines 2012 he ollowing sub-secions should be included in he PublicConsulaion and Disclosure secion o any draf EIA repor: Mehodology and approach; Summary o consulaion aciviies underaken: - Overview o consulaion aciviies;

- Summary o he opinions o he people or communiies consuled. Resuls o consulaions during projec scoping: - Issues idenified by sakeholders and groups affeced by he projec; - How hese issues were aken ino accoun. Recommendaions or consulaions o be underaken during he EIA Sudies.

The EIA Guidelines 2012 also provide a deailed descripion o groups o be consuled during he scopingphase (see Box 1). Public consulaion is recognized as an imporan responsibiliy o he projec proponen,and is as a crucial sep oward building undersanding and accepance o he projec by he sakeholders.

Public consulaion provides he proponen wih eedback and inormaion abou valuedenvironmenal componens o he communiies affeced by he projec.

37. EIA Guidelines 2012, p. 24.38. Miniserial Insrucions on EIA (2013), Aricle 2.12.



Box 1. Checklis of groups and individuals o be consuled during he scoping phase

Source : EIA Guidelines 2012, p. 23.

I can be seen rom Figure 4 ha in Lao PDR public consulaion is seen as a specrum o paricipaion

and as par o he coninuum o he EIA procedure. The consulaion process is an ongoing aciviy ha

will ake place hroughou he projec implemenaion cycle. The scoping repor should define he uure

consulaion process in erms o he ollowing:

Objecives o consulaions during preparaion o he EIA repor;

The paricipans who will be involved in uure consulaions; and

Inormaion disclosure.



The public paricipaion process under he ideal siuaion can be broken down ino our key sequenialphases, each o which is a prerequisie or he nex: Inormaion gahering: collecion o baseline daa rom he public o eed ino he descripion o

he environmen and impac predicion; Inormaion disseminaion: sakeholders are inormed abou he projec;

Consulaion: sakeholders are given he opporuniy o voice heir views abou he projec; and Paricipaion: an exension o consulaion, where sakeholders become join parners in he designand implemenaion o projecs (miigaion measures, communiy developmen aciviies, ec.) and akepar in decision-making.39

While he projec proponen is clearly responsible or communiy consulaion during he scoping phase,during preparaion and review o he EIA repor and he ESMMP, MONRE, he local adminisraion, heresponsible agencies, and he projec proponen shall organize consulaion meeings a he village, dis-ric, and provincial levels. These consulaion meeings provide a orum or PAP and oher sakeholderso share heir opinions and provide heir commens on he repor and plans, rom he firs drafs hroughhe final drafs.40

The communiy consulaion process will coninue hroughou he consrucion, operaion and decom-missioning, closure and pos-closure phases. The ESMMP

Repor should define he uure consulaion process in erms o: Objecives o he consulaion or each projec phase; Consulaion commitee(s); Complain and grievance mechanisms; and Disclosure.41

Aricle 2.14 o he Miniserial Insrucions on EIA (2013) provides ha he people affeced by he projecand oher sakeholders should paricipae in discussions on implemenaion o he environmenal andsocial aciviies, as well as he ESMMP o he invesmen projec. Aricle 7 (7) o he EIA Decree 2010provided ha people affeced by he projec and oher sakeholders have he righ and duy o make awriten proposal o solve he environmenal and social problems caused by he invesmen projec o helocal adminisraions a each level, or direcly o MONRE i he problems have no ye been solved. Thispar was no included in he Miniserial Insrucions on EIA (2013).

Complains and grievances mechanisms

Under he EIA Guidelines 2012 he projec proponen is required esablish a complains and grievancesmechanism relaed o environmenal and social issues arising during he consrucion, operaion anddecommissioning, closure and posclosure phases.42I is suggesed ha his mechanism be managed byhe projec developer wih involvemen o local auhoriies.

The inroducion o a grievance mechanism is an imporan sep o allow an ongoing involvemen o hecommuniy in he resoluion o dispues.

39. EIA Guidelines 2012, p. 64.40. EIA Guidelines 2012, p. 64.41. EIA Guidelines 2012, p. 86.42. EIA Guidelines 2012, p. 85.



Access o informaion

Aricle 2.20 o he Miniserial Insrucions on EIA (2013) provides deails o he inormaion ha is requiredo be disclosed o he public, including he ESIA repor, he EMMP, he ESMMP and EIA budge and anyoher inormaion required o be disclosed by MONRE. This is o be in Lao and local language. There is a

provisionha allows inormaion o be wihheld by MONRE upon reques by he projec proponen. Thereis no provision ha he inormaion is in English.

The EIA Decree 2010 required ha he projec proponen make suiable inormaion available o sake-holders in a language and orma ha is undersandable o hem o aciliae meaningul consulaion wihgroups affeced by he projec, civil sociey organizaions, and NGOs acive in he projec area. The EIAGuidelines 2012 sill require he projec proponen o provide sakeholders sufficien ime o review andundersand he projec and is issues o enable hem o paricipae effecively during consulaion. Forhe public consulaion meeings, he projec inormaion provided o he people affeced by he projecs

and he sakeholders should include he scoping repor and he presenaion maerials. This inormaionwas o be provided in Lao and in English.43There is no equivalen Aricle in he Miniserial Insrucionson EIA (2013).

According o he EIA Guidelines 2012, disclosure o inormaion is an imporan par o he projecproponens engagemen process during he consrucion, operaion and decommissioning, closure, andpos-closure phases. A he sar o he consrucion phase, he projec developer should prepare anddisribue inormaional maerials abou he consrucion aciviies. Inormaion disclosure should beocused on he local and disric levels.

The EIA Guidelines 2012 provide ha all inormaional maerial shall be provided in Lao and in English, andwriten in nonechnical erms o make i easy o undersand by he populaion.44Under he EIA Guidelines2012 he public consulaion coninues hroughou he EIA preparaion phase. The projec proponen musunderake a process o consulaion during he EIA sudy involving he affeced communiies and heprojec sakeholders. Consulaions should ake place on a coninuous basis saring as early as possiblein he EIA process.45

Aricles 12 and 13 o he Lao PDR Decree on Compensaion and Resetlemen o People Affeced byDevelopmen Projecs46describes addiional requiremens when he projec involves resetlemen and

compensaion. The Public Involvemen Guidelines provide inormaion on he disseminaion, paricipaion,and consulaion aciviies o be carried during he EIA process.47

The overall public paricipaion process in he Lao PDR EIA Guidelines 2012 is quie comprehensive. Isars a he scoping phase and coninues o he operaion and decommissioning phase. The acual scopeo public paricipaion in he Miniserial Insrucions on EIA (2013) and he EIA Decree 2010 is more limied.Wayakone and Makoo observe ha while public paricipaion is required under Lao PDR EIA Guidelines2012, he lack o independen and acive NGOs and he reliance on he projec proponen o underake heconsulaion wihou supervision or review rom MONRE provides a gap beween he heory and pracice.48

43. EIA Guidelines 2012, 3.8.1.3, p. 26.44. EIA Guidelines 2012, p. 87.45. EIA Guidelines 2012, p. 62.46. No. 192/PM, 7 July 2005.47. EIA Guidelines 2012, p. 64.48. Wayakone and Makoo (2012), p. 1662.



Overview

The Minisry o Environmenal Conservaion and Foresry (MOECAF) was ormed in 2010 anddemonsraes he governmens commimen o improving he planning and managemen o nauralresources and he environmen. The Environmen Conservaion Law 2012 (ECL 2012) provides he legalbasis or implemening a range o enhanced environmenal managemen measures. Currenly he regulaionso enac he ECL 2012, including regulaions and echnical guidelines on environmenal saeguards and

polluion abaemen are being developed.49

The governmen is working o pu in place he policies, laws, and regulaions needed o properly managehe counrys naural resources and environmen. These encompass: (i) environmen policy and legislaion;(ii) a susainable developmen sraegy; (iii) ores policy and maser planning; (iv) a biodiversiy proecion

area sysem; (v) soil conservaion and land rehabiliaion programs; (vi) disaser risk reducion planning;and (vii) mining legislaion.

The Myanmar Naional Environmen Policy was adoped in 1994. The policy saes:

The wealh o he naion is is people, is culural heriage, is environmen and is naural resources.The objecive o Myanmars environmenal policy is aimed a achieving harmony and balance beweenhese hrough he inegraion o environmenal consideraions ino he developmen process oenhance he qualiy o he lie o all is ciizens. Every naion has he sovereign righ o uilize is

naural resources in accordance wih is environmenal policies; bu grea care mus be aken no o

exceed is jurisdicion or inringe upon he ineress o oher naions. I is he responsibiliy o heSae and every ciizen o preserve is naural resources in he ineress o presen and uure

generaions. Environmenal proecion should always be he primary objecive in seeking developmen.

The Foreign Invesmen Law 2012 and Foreign Invesmen Rules 2014 (FI Rules), implemens heGovernmens approach o oreign invesmen and o promoe susainable economic developmen bygrowing oreign invesmens in Myanmar. The invesors have o carry ou heir aciviies in a way no ocause environmenal polluion or damage in accord wih exising laws.

Aricle 34 o he FI Rules provides ha or proposals or capial-inensive invesmen projecs

designaed by he Myanmar Invesmen Commission (MIC), which need o assess environmenal andsocial impac, and EIA or social impac assessmen repor shall be atached ogeher wih he invesmenproposal. This is hen reerred o MOECAF or iniial assessmen and review.

The ECL 2012 provides he overview on environmenal proecion in Myanmar.

EIA Procedure

The Environmen Proecion Rules 2014 (EP Rules) esablish a ramework or EIA in Chaper XI. MOECAFis o deermine which projecs, caegories o plan, businesses or aciviies ha are required carry ou

environmenal impac assessmen.50 The EP Rules would allow or a wo-iered sysem o IEE or EIA.51

49. htp://www.adb.org/sies/deaul/files/linked-documens/icps-mya-2012-2014-ena.pd.50. EP Rules, Aricle 52.51. EP Rules, Aricle 53.

Myanmar



EIAs or IEEs are o be carried ou by qualified and regisered hird pary consulans.52Proposed projecsmus include an Environmenal Managemen Plan (EMP) ha is o be submited ogeher wih he IEE or

EIA. These are o be submited prior o he projec being approved53and are o be assessed by MOECAF.

The EP Rules also make provision or an Environmenal Impac Assessmen Repor Review Body wih he

expers rom he relevan governmen deparmens and oher governmen organizaions.54

MOECAF mayapprove he EIA or EMP ollowing approval o he proposed projec by he EIA Repor Review Body.55TheEP rules do no make any specific reerence o public paricipaion or communiy consulaion.

The Environmen Impac Assessmen Procedures Draf 2014 (Draf EIA Procedures) deail he proposedEIA sysem in Myanmar. These are sill being refined and developed. Alhough here have been some com-muniy workshops o inorm civil sociey and he privae secor on he Draf EIA Procedures, here hasbeen no ormal public consulaion process on he procedures.

Chaper 2 o he Draf EIA Procedures provides ha all Projecs underaken in he Republic o he Union

o Myanmar by any minisry, governmen deparmen, organizaion, corporaion, board, developmencommitee, local governmen or auhoriy, company, cooperaive, insiuion, enerprise, firm, parnership

or individual having he poenial o cause significan adverse impacs, are required o underake IEE orEIA and o obain an ECC in accordance wih his Procedure. The Draf EIA Procedures includes a screeningAnnex lising hose projecs required o carry ou eiher an EIA or IEE.

The Draf EIA Procedure esablishes an EIA Repor Review Body.

The curren draf he EIA process does no address specific maters in relaion o resetlemen or inrelaion o Projecs ha may have an Adverse Impac on Indigenous People. These mus prepare urherassessmen in accordance wih he respecive Rules and Procedures o oher Minisries.

The Draf EIA Procedures provide ha EIA consulans mus be regisered wih MOECAF. No EIA or IEEmay be conduced unless he consulan o firm is regisered.

The Draf EIA Procedure provides a sandard process or IEE or EIA (Figure 5) :

Selecion and check o he EIA exper;

Screening;

Scoping: - Inormaion disclosure and consulaion; - Scoping repor and EIA TOR; - Revision/approval/condiions wihin 15 days.

EIA invesigaion;

EIA repor;

EIA review process;

ECC issuing;

Appeal process.

52. EP Rules, Aricle 56.53. EP Rules, Aricle 52.54. EP Rules, Aricle 58.55. EP Rules, Aricle 61.



Figure 5. EIA procedures in Myanmar : he EIA process

Source : prepared by Marin Cosier, Vermon Law School, and Mathew Baird or presenaions in 2014.

EIA Pracices in Myanmar wih Respec o Public Paricipaion

Under he Draf EIA Procedures, he projec proponen shall underake he ollowing public consulaionprocess in regard o an EIA ype projec:

Disclose inormaion abou he proposed projec o he public and civil sociey hrough local media,including by means o he prominen posing o legible sign boards a he projec sie which arevisible o he public; and

Arrange consulaion meeings as advised by he minisry, wih local communiies, people

poenially affeced by he projec, local auhoriies, communiy based organizaions, and civilsociey.

In addiion, he EIA process provides or he scoping o projecs ha should include consulaion wihPAP. Consulaion and inormaion disclosure abou he projec is required a he Scoping Sage. Underhe Draf EIA Procedures, he EIA shall consider he views, concerns, and percepions o sakeholders,communiies and individuals ha could be affeced by he projec or who oherwise have an ineres inhe projec. The EIA should include he resuls o public consulaions and negoiaions wih he affecedpopulaions on he environmenal and social issues. Public concerns should also be aken ino accoun inassessing impacs, designing miigaion measures, and selecing monioring parameers.



During he EIA preparaion phase, which occurs afer he TOR has been finalized wih MOECAF, he projecproponen shall underake he ollowing consulaion process:

1) Timely disclosure o all relevan inormaion abou he proposed projec and is likely adverseimpacs o he public and civil sociey hrough local and naional media, he websie o he projec

proponen, a public places such as libraries and communiy halls and sign boards a he projecsie visible o he public; 2) Arrange consulaion meeings a naional, sae and local level wih PAPs. auhoriies, communiy

based organizaions, and civil sociey; 3) Consulaions wih concerned governmen organizaions including MOECAF, he concerned secor

minisry, regional governmen auhoriies, and ohers; and

4) Field visis or he MOECAF and concerned governmen organizaions.56

The EIA repor mus also include a secion on he public consulaion process, including he commensrom PAP.

Figure 6. EIA preparaion and review

Source : Included in he Draf EIA Procedures.

Figures 6 and 7 show he processes o EIA preparaion and approval. Following submission o he drafEIA repor o MOECAF, i will be made public, MOECAF will arrange public consulaion meeings and heEIA Review Repor Body will examine he EIA repor, he EMP and eiher recommend he projec be ap-

proved, amended or rejeced. I approved, MOECAF will hen issue an ECC or he projec.

56. None o he deails are clarified in he Draf EIA Procedures. This mus be subjec o urher guidelines.



The projec proponen is liable or monioring and compliance wih he EIA, EMP and ECC. There is norequiremen or he projec proponen o esablish any communiy consulaive commitee or grievancemechanism or PAP.

Figure 7. EIA approval

Source : Included in he Draf EIA Procedures

The Draf EIA Procedures also provide or an appeal process. This is applicable or boh he projec pro-ponen and hose poenially adversely affeced by he projec.

The Draf EIA Procedures do no make any provision or a communiy consulaive commitee or grievancecommitee o be esablished. Likewise, public paricipaion and communiy involvemen in he operaionphase and in he monioring and enorcemen o he EMP is no specified.



Overview

The firs mandaory provisions or EIA in Thailand were issued in 1975. By Secion 46 o he Enhancemenand Conservaion o Naion o Naional Environmenal Qualiy Ac 2535 1992 (NEQA 1992), The Minisryo Naural Resources and Environmen (MONRE) wih he approval o he Naional Environmen Board,has he power o speciy he ype and size o projecs or aciviies requiring EIA.

Under Aricle 67 o he Consiuion o Thailand o 2007,57any projecs and aciviies which may causesevere adverse impacs o he communiy wih respec o environmenal qualiy, naural resources andhealh are required o prepare Environmenal and Healh Impac Assessmen (EHIA). Projecs and aciviieswhich are required o prepare EHIA are issued in he Miniserial Noificaion o MONRE.

EIA Procedure

Par 4 o NEQA 1992 esablishes he EIA sysem or Thailand. The procedure depends on wheher a projecrequires Cabine approval or no.

In he case o he projec or aciviy ha is required o prepare EIA, he projec or aciviy o agovernmen agency or o a sae enerprise which requires he approval o he Cabine, he EIA reporhas o be submited o he Naional Environmen Board or is review and commens and hen submitedo he Cabine or consideraion.

NEQA 1992 does no have any provisions on public paricipaion and inormaion disclosure wih respeco EIA. Secion 6 provides righs or paricipaion and access o inormaion in general maters o envi-ronmenal conservaion.

The 2007 Consiuion and he Guidelines prepared by MONRE provide ha a projec is required o holdpublic paricipaion a leas wice. This will occur a he sar o he preparaion o he EIA repor or hepublic o review he TOR o he projec and he scope o he sudy, and during he preparaion o he drafEIA repor including he proposed prevenion and miigaion measures. In he case o a projec requiringEHIA i requires our public meeings.

The projec has o disclose inormaion a he office o local auhoriies, projec sie and communiies,in accordance wih he Prime Miniser Office Rule on Public Hearing (2005) a leas consising o heollowing inormaion : Raionale and objecives o he projec; Main poins o he projec; Projec proponen; The projec sie; Producs and oucomes o he projec, including posiive benefis ha each sakeholder group

will receive rom he projec; Negaive impacs ha migh happen o he people living or working in area and neighboring areas

o he projec sie and general public including prevenion, miigaion and remediaion measures;and The esimaed projec cos.

57. The 2007 Consiuion was abrogaed on May 22, 2014.

Thailand



In accordance wih he Oicial Inormaion Ac (1997), he Oice o Naural Resources andEnvironmenal Policy and Planning (ONEP) mus disclose EIA Repors o any individual i requesed.

Oher han including privae projecs and aciviies, he EIA repor has o be reviewed and approved byhe Exper Review Commitee (ERC) appoined under he Naional Environmen Board prior o obaining hepermi or consrucion or operaion rom a legally auhorized permiting agency. The ONEP o MONRE ischarge o EIA, coordinaing wih permiting agencies and he Secrearia o he commitees o expers.

Five seps and corresponding asks o he EIA process are esablished and public paricipaion is includedin all seps as well. 1) Screening comprises o iniiaion o he projec, sie evaluaion and local auhoriies involvemen; 2) Scoping comprises o sie selecion, scope o EIA and public and sakeholders involvemen; 3) Repor preparaion comprises o consulan selecion, draf repor preparaion and daa acquisiion/ public inpu/opinion; 4) EIA review comprises o final repor preparaion, EIA exper panel review or privae projec

submited o permiting auhoriy, or governmen projec submited o Naional EnvironmenalBoard and o he Cabine; and

5) Monioring comprises o projec owner submited repor, ollow-up by permiting auhoriy andmonioring by a hirdpary.

Figures 8 and 9 depic he EIA process in Thailand.

Guidelines or preparaion o he EIA repor or a projec or aciviy which may seriously affec a com-muniy wih respec o qualiy o environmen, naural resources and healh are provided by ONEP. TheEIA repor mus include a summary conaining he descripion, locaion and alernaive locaion and

operaional mehod o he projec or aciviy. I mus repor on impacs which may significanly affec heenvironmen, proecion and remedy hereo and invesigaion and examinaion o environmenal impacand conclusion. Furhermore, he main repor mus conain an inroducion, ollowed by secions on helocaion o he projec or aciviy, descripion, exising environmenal condiions and evaluaion o healernaives, measure or proecion and remedy o environmenal impac, compensaion and summarizingable.

For larger scale projecs ha may cause significan impacs, he EIA repor mus be submited o ONEPo be reviewed and or recommendaions o be made. EIA have o be prepared by a consuling firm hais regisered by ONEP.



Figure 8. Approval process for projecs or aciviies which are required by law and projecs or

aciviies which are no required by law o receive he approval of he cabine

Source : ONEP (2012), p. 11.

The official conens o an EIA repor and preparing sysem are wellorganized in Thailand. The EIArepors mus be submited o he ONEP o be reviewed and given a recommendaion. Well-esablishedenvironmenal legislaion and EIA guidelines such as rules, procedures, and accepable mehods and howo prepare he repor, guidelines or evaluaion o healh impac assessmen, guidelines or consulaionwih he public and ineresed paries, orms o he repor, cerificae or repor preparaion, lis o hepersons preparing he repor, and orm or repor submission, have been clearly idenified and ormulaed.ONEP uses a lising mehod as a key qualiy conrol insrumen or accuracy and veraciy o he repors.



Figure 9. Approval process for projecs or aciviies which may seriously affec communiy wihrespec o he environmen, naural resources and healh, and are required by law or no requiredby law o be approved by he cabine

Source : ONEP (2012), p. 13.

However, inormaion providing or he general public regarding EIA echniques and any relevanacors affecing environmenal qualiy, display on he ONEP websie (htp://www.onep.go.h/eia/ENGLISH/eia_eng_index.hm), are limied.



EIA Pracices in Thailand wih Respec o Public Paricipaion

I has been observed ha wih 35 years o EIA operaion in Thailand, i is sill regarded by indusry as anundesirable burden on developmen. Consequenly, here are many examples o atemps o minimize heperceived burden o EIA, including avoidance.

As noed above, he NEQA 1992 does no provide any significan righs or public paricipaion and publicconsulaion. The Thai Consiuion 2007 gives greaer weigh on environmenal decision-making o hecommuniy. Righs o a person o, receive inormaion, explanaions and reasons rom governmen/saeagencies beore graning a license o underake

MPE Mekong EIA Briefing Final

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