Potentialities for a Regional Public Participation Framework in Asia:

The Strategic Environmental Assessment Perspective

International workshop “Public Participation in Environmental Matters in East Asia: multifaced perspectives” 18 March 2013 UNU-IAS

Akira OGIHARA

Principal Researcher, Governance and Capacity Group, Institute for Global Environmental Strategies)

Mikiko SHIMAOKA IGES Fellow, Research Associate WBS Research Center, Faculty of Commerce,

Waseda University

1

First Draft

Background 1

• In order to resolve trans-boundary environmental problems, it is imperative that the implementation of multilateral environmental agreements (MEAs) be ensured in the Asia-Pacific region (IGES, 2012).

• Trans-boundary environmental pollution such as yellow dust and drifting garbage have become obvious .

• In order to minimize environmental impacts on neighboring countries collaboration and cooperation with the relevant countries is important. 2

Background 2

• In MEAs, the process is extremely important in which the various parties involved such as the citizens, governments, and business sector participate in the decision making process, build consensus, and furthermore, implement the consensus.

3

Political

Country C

Mu

ltin

atio

nal

fra

mew

ork

Stakeholder

Country B

Country A

Geographic

Social Cultural

Legal

Stakeholder Stakeholder

Source: Adapted from Choi, F. D. S., & Mueller, G. G. (1992). International accounting (2nd ed.). Englewood Cliffs, N.J.: Prentice-Hall.

A theoretical Framework for MEAs

4

Stakeholder participation

• Multi-stakeholder process (MSP) • Various stakeholders participate in order to have a dialogue

and reach an agreement. • At Rio+20, held in June 2012 , there was a recognition of

the diversification of entities and stakeholders that are involved in the pursuit of sustainable development

• MSP consists of…. • 1) challenges and purposes • 2) participation of the stakeholders • 3) equality • 4) dialogue (Sato, 2010)

5

MSP examples

Aarhus Convention

the United Nations Commissions on Sustainable Development (CSD)

the dialogue process on the Brent Spar issue at the Environment Council

the Global Reporting Initiative (GRI),

the UN Global Compact

the Forest Stewardship Council (FSC).

6

Focus of this research :EIA & SEA

• Environment Impact Assessment (EIA) is in general a process whereby a certain program or a project is assessed for its effect on the environment before its implementation

• Strategic Environmental Assessment (SEA) assesses the impact at the stages of higher level; namely policy making, basic concept, and basic planning, in addition to not just conducting traditional project impact assessment.

7

Research Questions

• While EIA systems are being prepared in Asian countries, how much of their effectiveness has been ensured?

• Do the reasons for not having ensured the effectiveness vary from country to country?

• Can a lack of public participation be the main constraining factor in ensuring their effectiveness?

• What sorts of solutions are necessary?

8

9

Appendix 1: Overall reviews on Environmental Impact Assessment in Asia region

(incomplete)

Country Lead

administrative agency

Legal basis Scope of target business Plan for

environmental management

External Committee Analysis on

alternative options Legislation on Public

Participation Legislation on

Information disclosure

Republic of Korea

Ministry of Environment (MOE)

Article 5 (on Prior Consultation) of the Environment Preservation Act legislated in 1977 Act on Assessment of Impacts on Environment, Traffic and Disaster (Dec. 1999), EIA Act (Jan. 2009), 3 principal mechanisms on impact assessment (IA) including; 1) SEA, 2) PERS and 3) EIA

Yes 17 (covering 62 unit projects) with the addition of sand, mud, and mineral collection.

No PERS or Preliminary Environmental Scan (PES), and SEA-type system is legislated under the Framework Act of Environmental Policy (FAEP) (Articles 25- 28). The system is used to predict and minimize environmental impacts at an early stage for certain plans and projects.

Yes Korea Environment Institute (KEI)

Yes no action is impossible

Yes Environmental Impact Assessment Act requires the release of EIA documents for reference to the public in addition to presentations and public hearings.. Public hearings are used to collect and reflect opinions of local residents in the EIA.

Yes The Basic Environmental Policy Act included provisions on the release of EIA documents to the public and presentations and public hearings on the EIA.

China Ministry of Environment Protection

Environmental Impact

Assessment Law（’03）

Yes According to Art. 16 of the EIA Law, “Classification Catalog Management of EIA for Construction Projects” issued by MEP( in Aug. 2008) Planning stage All processes of construction stage

Not include the following items: 1) ecosystem 2) GHGs gases 3) landscape 4) historical and cultural environment,

Yes Regulations on Environmental Protection Management of Construction Project

No No Clear provisions are required for this. According to Article 27 of the EIA Law modification is allowed after construction, which should be prohibited

Yes “Interim Measures for Public Participation in EIA” promulgated by SEPA ( Feb. 2006)

clearly defines the

rights of public to

participate in EIA,

and explicitly

prescribes the

specific scope,

procedure, way and

time limit of public

participation, which

is beneficial to

assure public the

“Right To Know” of

the environmental

information as well.

Yes Regulations of the People's Republic of China on Open Government Information” and “Measures on Environmental Information disclosure” (which clarifies the scope, means, time and procedure for releasing information.) Law of Environmental Protection specifies environmental report at national and provincial levels

Country Lead

administrative agency

Legal basis Scope of target business Plan for

environmental management

External Committee Analysis on

alternative options Legislation on Public

Participation Legislation on

Information disclosure

Philippines Department of Environment and Natural Resources (DENR)

Presidential Degree

1151/1977) and 1586/1978，

EIS system (1985)，

DAO30/03（’03）

Project stage Yes No Yes Yes Allow to discussion EIS with public on screening and scoping stages of EIA

Yes The Freedom on Information Bill (12 May 2008) Disclose ECC

（Environmental

Compliance

Certificate）

10

Appendix 2: EIA Enforcement: Republic of Korea, China, Philippines, Thailand, Indonesia,

Vietnam and Cambodia (incomplete)

Country Environment

right Environment obligations

Challenges for Enforcement Proposals for enforcement

EIA Public Participation(PP) Information Access (IA)

Republic of Korea

○ ○

A democratic society should try to protect its people from risks in the area of environmental health and safety (EHS).

Procedural laws are necessary for people to exercise their rights.

How to sieve the integrated Impact Assessment horizontally and vertically.

Public hearings are used to collect and reflect opinions of local residents in the EIA

Public hearings are held only when the mayor, county chief or head of the district office deemed necessary,

Information on EIA come through public hearings are held only when the mayor, county chief or head of the district office deemed necessary..

(EIA)

Promote participants understanding of EIA system and on-going development in participating countries

Provide a forum for an inter-agency and cross-cultural exchange of ideas concerning EIA in transbounday context

Develop regional transboundary EIA guidelines and promote standard of IEA for development project in the tranboudnary areas.

(IA)

Legal system for Impact Assessment should be shaped similarly.

Legal objectives should be achievable by predefined process (procedural laws).

Regulatory system on Impact Assessment (IA) need to be reformed

(PP)

public participation in decision-making process should be increased and secured together with provisional development

China

○

EIA law covers plan in addition to the project, and is SEA inclusive.

EIA does not cover policy although in the early stages of its development, the aim of EIA was to cover policy, plan and project. The policy was subsequently dropped

Public participation to be involved into decision-making is still far to go.

Only government officials and some scholars and experts can be involved in decision-making processes.

Other than for the confidential matters, public consultation has to be held for the EIAs related to large infrastructure and other environmental related plans (Article 7-9.)

All the environmental issues have not been covered with Public Participation.

The EIA law encourages public participation, but this is not sufficiently strong.

information disclosure on environmental impacts on industrial sectors is not mandatory based on existing laws

Lack of practical and specific mechanisms on legal support for public participation in decision-making of environment decision and plan

Insufficient support for disadvantage groups for

(EIA)

strengthen supervision and management of EIA

(PP/IA))

raise awareness of governments and the publics to improve access to information and public participation in decision-making

improve legal framework to strengthen the rights of access to information public participation in decision-making

(IA)

Governments should provide more spaces for NGOs and media to play increasing roles in improving information access.

Build a platform of EIA information through

integration of data and information from all

relevant institutions

(PP)

Meaningful participation is not still institutionalized in decision-making.

Increase investment for capacity building for NGO, government as well as public

Reach on the good governance and accountability mechanism

Promote NGO roles in policy advocacy

Philippines

○

duplicated authorities between central and local governments due to lack of clear demarcation

inefficient EIA process, due to individual legislation

public hearings and public consultations are hazardly conducted and poorly presented due to time constraints and lack of skills within government to

disclose ECC

no provision which clarifies the approaches to access to EIS

(EIA)

Strengthen the capacity of Monitoring and Evaluation (M&E) System of EIS.

Provide financial support for EIA implementation.

Technical capacity such as monitoring of

11

Appendix3: Principles for Improving Environmental Compliance and Enforcement in

Asia

(1) Institutional Arrangements 1) Agency mandates and powers: Laws should provide Environmental Agencies with clearly-defined mandates, responsibilities, and resources to protect public health and the environment.

2) Subsidiarity and devolution: Decision-making should be made at the lowest level that possesses the competency to effectively carry out the required tasks.

3) Inter-agency cooperation: Governmental agencies with complementary enforcement and compliance responsibilities should cooperate closely through clearly defined coordination mechanisms that address strategic planning and implementation.

(2) Planning, Performance and Evaluation

4) Planning and priority setting: Environmental Agencies should develop clear strategies and implementation plans that address

program priorities, and realistically reflect available human and institutional capacity.。

5) Monitoring and evaluating performance: Environmental Agencies should adopt appropriate performance management systems to support planning, performance evaluation, and continuous improvement of programs based on performance indicators.

6) Monitoring and evaluating performance: Environmental Agencies should adopt appropriate performance management systems to support planning, performance evaluation, and continuous improvement of programs based on performance indicators.

(3) Compliance Monitoring, Inspection and Permitting

7) Compliance monitoring and inspection: Environmental Agencies should monitor compliance and conduct inspections in accordance with standard procedures that reduce risks to public health and the environment.

8) Permitting: Environmental compliance and enforcement programs should require all stationary pollution sources with significant environmental impact to obtain an environmental permit as a precondition to operation.

9) Permitting: Environmental compliance and enforcement programs should require all stationary pollution sources with significant environmental impact to obtain an environmental permit as a precondition to operation.

(4) Enforcement Response 10) Rule of law in environmental enforcement: Environmental Agencies should demonstrate commitment to the rule of law by developing timely enforcement responses that deter noncompliance and accomplish a range of objectives, including correcting violations and rectifying or compensating environmental harm.

11) Fair, consistent and proportionate responses: Environmental Agencies should develop procedures that clearly define enforcement responses and associated remedies that are timely, fair, consistent, and proportionate to the conduct.

(5) Compliance Promotion and Incentives

12) Compliance promotion: Environmental Agencies should promote compliance with regulatory requirements by providing information and technical assistance, sharing best practices, and promoting adoption of voluntary measures.

13) Incentives-based instruments: Environmental Agencies should employ economic and incentives-based instruments to promote compliance.

(6) Public Participation

14) Access to information: Environmental Agencies should facilitate citizen access to relevant agency information, subject to reasonable rules.

15) Stakeholder participation: Environmental Agencies should provide clear mechanisms for stakeholder participation in decision-making on compliance and enforcement.

16) Citizen enforcement: Environmental Agencies should involve civil society in compliance monitoring and filing of complaints or lawsuits.

Source: AECEN website

(http://www.aecen.org/principles-improving-environmental-compliance-and-enforcement-asia)

EIA in Asia : An overview(1)

• 1990~, many developing countries in Asia have proceeded to institutionalize an EIA system influenced by the international society and by regulations established in the EU.

• Myanmar and Brunei have fallen behind this trend

• China, Korea, the Philippines, and Vietnam are shifting from EIA to Strategic Environmental Assessment (SEA).

12

EIA in Asia : An overview(2)

• Situation differs depending on the country. Many countries target the stages of a project, while

Korea is the only country in Asia that does not designate any particular category for assessment.

China, on the other hand, targets the planning stages and all the other stages of construction projects.

The targets of environmental protection also vary widely depending on each country.

13

EIA in Asia :Legislation and structure • Many countries have … legislated basic principles that cover fundamental laws, reference

values, specific laws, and subordinate regulations Established principal environmental administrative bodies and have

reinforced administrative functions. Some countries have legislated an environmental assessment act

that involves proceedings which combine a variety of methods such as direct/indirect methods, economic methods, participatory methods, and democratic methods including educational/awareness raising activities

• Dispute-settlement body • The Philippines and Thailand have established a Department of

Environment and Natural Resources and Ministry of Natural Resources and Environment.

• Singapore has established a Ministry of the Environment and Water Resources and National Environment Agency. 14

EIA in Asia

• the range of target projects (projects/plans), environmental management plans, presence/absence of an external examination board, a system to register qualified writers of environment assessment reports, alternative plans, public participation, information disclosure, and a registered NGO system reflect the situation of each country.

15

Obstacles in the enforcement of an EIA (do not directly concern the regulations)

– Lack of granting appropriate authority to related governmental organizations

– Lack of adequate capacity to monitor and inspect / Officials’ lack of ability to cope

– Lack of human resources / Lack of funds

– Insufficient awareness or effort on the part of governments in promoting public participation

– Lack of public awareness of the decision-making process

16

The essence of SEA

• Transparency of the decision-making process since participation at the policy and planning stages is essential.

disclose information to the public regarding the decision-making process

ensure that it is a process in which the public can actively take part from the examination stage of the proposed project plan.

17

Introduction of SEA

• Introduction of SEA varies considerably from country to country.

China, Hong Kong, Korea, Taiwan, and Vietnam are moving toward SEA.

At the local government level: Indonesia, the Philippines, and Thailand.

18

Trans-boundary EIA

• In East Asia, SEA aimed at environmental conservation through an economic development cooperation program (the GMS program) has been developed in the Greater Mekong Sub-Region (GMS) through the initiative of the ADB (ADB, 2006).

• In this region, the impact from the development of large-scale infrastructure improvement projects such as road network construction is felt not only on one country, but also over a broad area of the region.

19

Functions of Trans-boundary EIA (Koyano (2011))

• 1) dispute settlement

• 2) promotion of the prevention and reduction of trans-boundary environmental damage

• 3) integration of economic development and environmental conservation

• 4) deepening of cooperation in international and domestic environmental regulation

• 5) ensuring procedural transparency and democracy

20

Obstacles for Trans-boundary EIA

• EIA has not yet been properly assured in many countries for the following reasons:

• discretion of the country of jurisdiction is not appropriately managed

• lack of the national will and capability for implementing

21

Public Participation

• Institutional development has progressed in China, Korea, Thailand, and Indonesia.

• In other countries, the institutional infrastructure has not yet been developed

• While Korea has established clear regulations for ensuring that the public participate in the decision-making process, there are countries such as Thailand where the administrative bodies do not actively promote public participation.

Whether or not public participation is assured cannot be judged by the presence or absence of an institution

22

Information Disclosure

• Korea, China, Malaysia, and Indonesia have established institutions.

• Information disclosure has not been clearly regulated in other countries (see Charts 2 and 4). There is still much to do to realize democratic information disclosure and public participation in the process of decision-making in these areas.

23

Conclusion/ Recommendations

• Although Asian countries are taking the helm in implementing impact assessments that gives greater consideration to the environment, there are still many problems.

• The importance of the introduction and the enforcement of SEA in all countries to tackle trans-boundary environmental problems.

24

Necessity of Raising the Level of Assessment in Each Country

• Ensuring Enforcement

• it is essential, to not only carry out procedural systematization to clarify the authority, but also to pursue democracy, a scientific approach, and transparency, to ensure information disclosure and public participation, and to construct a rational and efficient environmental management method

25

Promoting Public Participation

• Although participation in environmental management varies from country to country, there is a trend towards improvement in participatory processes while a shift towards SEA and Transboundary Environmental Impact Assessment is also being established.

26

Promoting Public Participation

• However….

• There are some cases where the government is not active in the promotion of public participation even though an institution exists.

• It is necessary to institutionally clarify and further enhance the responsibility of the government regarding public participation.

27

28

Appendix 4: Existing Regional Frameworks in Asia (example)

Mechanisms Content Year

Established

Promoting/ Hosting

Organization Countries Involved

NEASPEC Comprehensive and intergovernmental programme for environmental cooperation on:

energy and air pollution

ecosystem management, in particular deforestation and desertification

capacity building

1993 UN/ESCAP China DPRK, ROK, Japan, Mongolia

NEAC

Forum for governmental officials and environmental experts to:

exchange information

explore possibilities for cooperation amongst countries involved

1992 Environment ministries/agencies of member countries

China, Japan, Mongolia, and ROK

NOWPAP Intergovernmental programme for protecting and managing transboundary marine environment issues:

Regional data collection

Survey of national legislations

Marine pollution monitoring and preparedness

Response strategies

1994 UNEP China, Japan, and ROK

TEMM Annual meeting of tripartite environment ministers 1999 Environment ministries/agencies of member countries

China, Japan, and ROK

TRADP Promotes economic cooperation to develop effective long-term strategy to deal with international water pollution and biodiversity loss

1995 UNDP China, DPRK, Mongolia, and ROK

North-East To protect migratory waterbirds based on the Asia-Pacific Migratory Waterbird Protection Strategy

Links sites important for survival of cranes

1997 Wetlands International – Pacific

China, DPRK, Japan, Mongolia, and ROK

NAPEP A non-governmental network of NGOs and experts to promote information exchange and expertise between environmental NGOs

1992 China, Japan, Mongolia, and ROK

Source: UNPE ROAP (2004) Priority Paper on Sustainable Development for North-East

Asia

Develop a Basic Model for Regional Information Sharing

• A regional convention related to the environment

has not yet been concluded among the Asian countries as a whole or among East Asian countries.

• develop a framework of existing networks such as EANET?

• an organization in a neutral position and multiple stakeholders are able to participate in the process?

•

29

Conclusion

• When such an organization has a certain amount of influence in the countries concerned, this leads to the promotion of a multi-stakeholder process with the organization providing a platform for this.

• Furthermore, the organization is considered to carry highly important potential for the enforcement and development of MEAs in the Asia-Pacific region.

30