Environmental Impact
Assessment in the
Mekong Regionmaterials and commentary (first edition)october 2016

	
  
	
  

This work is made possible by the generous support of theAmerican people through the United States Agency for International
Development (USAID) Mekong Partnership for the Environment
program.
The contents presented in this document do not necessarily reflect
the views of USAID or the United States Government.

This manual was produced by
EarthRights International.
EarthRights International (ERI) is a nongovernmental, nonprofit
organization that combines the power of law and the power ofpeople in defense of human rights and the environment, which we
define as “earth rights.”
We specialize in fact-finding, legal actions against perpetrators ofearth rights abuses, training grassroots and community leaders, andadvocacy campaigns, and have offices in the Amazon, Southeast
Asia, and the United States.

Abbreviations
ABA
ACEE
ADB
ASEAN
BOI
CGM
CCC
CSO
DPRA
EA
ECC
EHIA
EIA
EIACWG
EIF
EIR
ELC
EMMP
EMP
EPNRM Law
EP Act
EPB
EPL
EPP
ERC
ESIA
ESMMP
ESMP
FI
GMO
GMS
IAIA
IAP2
ICJ
IEE
IEIA
IESA
IFC
LEP
MLN
MoE
MOECAF
MONRE
MONREC

American Bar Association
Appraisal Center for Environment and Engineering (China)
Asian Development Bank
Association of South East Asian Nations
Board of Investment (Thailand)
Complaints and Grievance Mechanism
Community Consultation Committee
Civil Society Organisation
District, Provincial and Regional Authorities
Environmental Assessment
Environmental Compliance Certificates
Environmental and Health Impact Assessment
Environmental Impact Assessment
EIA Condition Working Group (Cambodia)
Environmental Impact Form (China)
EIA Report
Economic Land Concession
Environmental Management and Monitoring Plan
Environmental Management Plan
Law on Environmental Protection and Natural Resource
Management (Cambodia)
Environmental Protection Act (China)
Environmental Protection Bureau
Environmental Protection Law (Lao PDR)
Environmental Protection Plan
Expert Review Committee (Thailand)
Environmental and Social Impact Assessment
Environmental and Social Management and Monitoring Plans
Environmental and Social Management Plan
Foreign Investment
Genetically Modified Organism
Greater Mekong Subregion
International Association for Impact Assessment
International Association for Public Participation
International Court of JusticeInitial Environmental Examination
Initial Environment Impact Assessment
Initial Environmental and Social Impact Assessment
International Finance Corporation
Law on Environmental Protection (Lao PDR, Viet Nam)
Mekong Legal Network
Ministry of Environment (Cambodia)
Ministry of Environment Conservation and Forests (Myanmar)
Ministry of Natural Resources and Environment (Lao PDR,
Viet Nam, Thailand)
Ministry of Natural Resources and Environmental Conservation

MRC
NCPO
NEB
NEPA
NEQA
NGO
ONEP
PAP
PNPCA
PRTR
RTWG on EIA
SEA
SESO
SIA
ToR
UN
UN ECE
UNEP
USEPA
WREA
WWF

(Myanmar)Mekong River Commission
National Council for Peace and Order (Thailand)
National Environment Board (Thailand)
National Environmental Policy Act (United States)
National Environmental Quality Act (1992) (Thailand)
Non-Government Organisation
Office of Natural Resources and Environmental Policy and Planning(Thailand)
Project Affected Persons
Procedures for Notification, Prior Consultation and Agreement
Pollutant Release and Transfer Register
Regional Technical Working Group on Environmental Impact
Assessment
Strategic Environmental Assessment
Standard Environmental and Social Obligations (Lao PDR)
Social Impact Assessment
Terms of Reference
United Nations
United Nations Economic Commission for Europe
United Nations Environment Programme
United States Environmental Protection Agency
Water Resources and Environmental Administration
World Wildlife Fund

Table of Contents
Introduction to the First Edition	
  ................................................................................................	
  1	
  Acknowledgements	
  ......................................................................................................................	
  2	
  ASEAN and Environmental Impact Assessment	
  .......................................................................	
  4	
  Sustainable Development	
  .....................................................................................................................	
  4	
  Human rights	
  .........................................................................................................................................	
  5	
  What is an Environmental Impact Assessment?	
  ......................................................................	
  6	
  Objectives of an EIA	  ...............................................................................................................................	
  6	
  Key Features of the Environmental Impact Assessment Process	
  .....................................................	
  8	
  Key Principles of an Environmental Impact Assessment	
  .......................................................	
  11	
  Legally established, clear and effective process	
  ................................................................................	
  11	
  Proponent bears cost of application and assessment	
  ......................................................................	
  11	
  Meaningful public participation at all steps of the process	
  ............................................................	
  12	
  Access to information by Project Affected People (PAP) and other stakeholders	
  .......................	
  12	
  All relevant information is available	
  .................................................................................................	
  12	
  Open and evidence-based decision making	
  .......................................................................................	
  12	
  Effective monitoring, compliance and enforcement	
  ........................................................................	
  13	
  Key mechanisms for an Environmental Impact Assessment	
  .................................................	
  13	
  Reliance on participatory approaches	
  ...............................................................................................	
  13	
  Application of the Precautionary Principle	
  ......................................................................................	
  14	
  Intergenerational equity	
  .....................................................................................................................	
  14	
  Conservation of biological diversity and ecological integrity	
  .........................................................	
  14	
  Improved valuation, pricing and incentives	
  .....................................................................................	
  14	
  Public Participation in an Environmental Impact Assessment	
  .............................................	
  15	
  Meaning of Public Participation	
  ........................................................................................................	
  19	
  Environmental Impact Assessment in Practice in the Mekong	
  .............................................	
  21	
  Environmental Impact Assessment in the Mekong Region	
  ............................................................	
  21	
  Steps in the EIA process	
  ......................................................................................................................	
  23	
  Step 1: Screening	
  ..............................................................................................................................................	
  24	
  Step 2: Scoping	
  ..................................................................................................................................................	
  24	
  Step 3: Preparation of the EIA	  .....................................................................................................................	
  26	
  Step 4: Review and Assessment of the EIA	  ..............................................................................................	
  27	
  Step 5: Approval of the EIA Report	
  ............................................................................................................	
  28	
  Step 6: Monitoring and Compliance	
  ..........................................................................................................	
  28	
  Kingdom of Cambodia	
  ...............................................................................................................	
  32	
  Introduction	
  .........................................................................................................................................	
  32	
  Procedure for IEIA and EIA	  .................................................................................................................	
  38	
  Compliance and Enforcement	
  ............................................................................................................	
  42	
  Monitoring and Compliance	
  ...............................................................................................................	
  44	
  The People’s Republic of China	
  .................................................................................................	
  45	
  Introduction	
  .........................................................................................................................................	
  45	
  Procedure for EIA	  .................................................................................................................................	
  49	
  Public Participation	
  .............................................................................................................................	
  53	
  Compliance and Enforcement	
  ............................................................................................................	
  55	
  Lao People’s Democratic Republic	
  ............................................................................................	
  58	
  Introduction	
  .........................................................................................................................................	
  58	
  

Procedure for EIA	  ................................................................................................................................	
  60	
  Preparation of an ESIA Report	
  ...........................................................................................................	
  69	
  Public Participation	
  .............................................................................................................................	
  71	
  Complaints and Grievances Mechanisms	
  ..........................................................................................	
  74	
  

Republic of the Union of Myanmar	
  ..........................................................................................	
  76	
  Introduction	
  .........................................................................................................................................	
  76	
  Procedure for EIA	  ................................................................................................................................	
  81	
  EIA Report Preparation	
  .......................................................................................................................	
  87	
  Public Participation	
  .............................................................................................................................	
  89	
  Table of Contents for EIA Report	
  .......................................................................................................	
  90	
  Kingdom of Thailand	
  .................................................................................................................	
  95	
  Introduction	
  .........................................................................................................................................	
  95	
  Procedure for EIA and EHIA	
  ............................................................................................................	
  100	
  Assessment of EIA Reports	
  ..............................................................................................................	
  101	
  Public Participation	
  ..........................................................................................................................	
  106	  Recent Developments	
  .......................................................................................................................	
  107	
  Socialist Republic of Viet Nam	  ...............................................................................................	
  109	
  Introduction	
  ......................................................................................................................................	
  109	
  Procedure for EIA	  .............................................................................................................................	
  112	
  Compliance and Enforcement	
  .........................................................................................................	
  116	
  Public Participation	
  ..........................................................................................................................	
  120	
  Monitoring and Compliance	
  ............................................................................................................	
  122	
  Transboundary issues in Environmental Impact Assessment	
  ...........................................	
  126	  
The Convention of Environmental Impact Assessment in a Transboundary Context (Espoo
Convention)	
  ......................................................................................................................................	
  128	
  Protocol on Strategic Environmental Assessment (the SEA Protocol)	
  .......................................	
  129	
  Convention on Access to Information, Public Participation in Decision- Making and Access toJustice in Environmental Matters (Aarhus Convention)	
  .............................................................	
  129	  Mekong River Agreement	
  ................................................................................................................	
  131	
  Procedures for Notification, Prior Consultation and Agreement	
  .................................................	
  133	
  Consideration of Transboundary EIA by the MRC	  .............................................................................	
  133	
  Greater Mekong Subregional Environment Agreement	
  ..............................................................	
  135	
  Requirements For effective transboundary EIA systems	
  .............................................................	
  136	
  Concluding thoughts on the EIA in the Mekong countries	
  .............................................................	
  138	
  Annexure 1: Outline of Project Description	
  .........................................................................	
  140	
  Annexure 2: Legislation	
  ..........................................................................................................	
  142	
  Cambodia	
  ...........................................................................................................................................	
  142	
  China	  ..................................................................................................................................................	
  142	  Lao PDR	
  .............................................................................................................................................	
  143	
  Myanmar	
  ...........................................................................................................................................	
  143	
  Thailand	
  .............................................................................................................................................	
  143	
  Viet Nam	  ............................................................................................................................................	
  144	
  Annexure 3: Further Resources	
  .............................................................................................	
  145	
  Screening Lists for EIA/IEE in selected Mekong Countries	
  ..........................................................	
  145	
  Draft Regional Guidelines on Public Participation in EIA	  ............................................................	
  145	
  Draft Cambodian Guidelines on Public Participation and Access to Information in EIA	  .........	
  145	
  Introduction to the First Edition
EarthRights International (ERI), alongside its partners in the Mekong Legal
Network (MLN), is working directly to build the capacity of communities,
campaigners and lawyers to engage in Environmental Impact Assessment (EIA)
processes in the Mekong region. Consequently, ERI and the MLN havecollaborated to produce this original manual for EIA practitioners in the six
Mekong countries which specifically targets government decision-makers,
investors, lawyers and other professionals working on the implementation of
EIA. The result is this unique practical guide for implementing EIA in the
Mekong, which both ERI and the MLN are strategically placed to disseminate torelevant EIA stakeholders, especially project-affected communities across theregion.
The Environmental Impact Assessment in the Mekong Region manual is the firsttime that anyone has sought to bring together in one volume an analysis of the
EIA systems of each of the six Mekong countries, including the common themes
and approaches. This was also the first project undertaken by the MLN, in
collaboration with ERI. As a result, there was a lot of learning throughout theprocess of collaboration and collation from all involved. Whilst all of themembers of the MLN are experienced lawyers, we found that there was a gap
between law and practice. There was also the need to be able to communicate
in a transboundary way, while acknowledging that different countries useddifferent processes and with some different approaches to EIA.
The First Edition is the result of this period of collaboration. We have tried toensure accuracy and completeness. However, we also recognise that there isalways room for improvement. We welcome any comments, criticisms orcomplaints. Our aim is to provide the materials and continue the existing
discussion on the value of EIA in the region and how EIA can be improved.
The work of the Mekong Partnership for the Environment, and the work of
PACT, has been devoted to the role of EIA in achieving sustainable
development. Through the work of PACT and many other practitioners andcommunities, the profile of EIA has been raised. Many discussions are occurring
to improve the standard and value of EIA. In particular, the development ofRegional Guidelines on Public Participation and the drafting of nationalguidelines on Public Participation in EIA for both Cambodia and Myanmar are allindicators of the importance of enhancing public participation in EIA.
This First Edition is aimed at practitioners, civil society, lawyers, EIA consultants
and project proponents. We hope that, by understanding the legal obligations
under national law, all stakeholders will work together to pursue constantimprovement in the EIA process across the Mekong region.
The Editorial Team
1 October 20161	  

Acknowledgements
The Editorial Team would like acknowledge that this undertaking would nothave been possible without the support of a great many individuals andorganisations. In particular, we would like to thank the following for theircomments and suggestions – EarthRights International, Christy Owen, Barry
Flaming, Dr Vong Sok, PACT MPE, Dr Peter Jensen, Dr Richard Frankel, Dr
Peter King, David Annandale, Iain Watson, Martin Cosier, BJ Schulte, Sui Tip
Lam (Vermont Law School), Vesna Kolar Planinsic, Tahra Vose, Kim Smaczniak.
Above all, Matthew Baird would like to thank Chris Chun for his support for thisproject and all the work on EIA and public participation over the past few years.
Citation: Manual of Environmental Impact Assessment in the Mekong Region:
Commentary & Materials (First Edition). Mekong Legal Network and Matthew
Baird. EarthRights International, September 2016.
Editors: Matthew Baird, Sor Rattanamanee Polkla, Songkrant Pongboonjun,
Manolinh Thepkhamvong, Dang Dinh Bach, Tep Neth, Than Than Aye, Oo Kyaw
Thein, Jinmei Liu, Rémy Kinna.
	
  
	
  
	
  
	
  
	
  
	
  
	
  
	
  

	
  

	
  

2	
  

	
  

	
  

3	
  

ASEAN and Environmental Impact Assessment
Sustainable Development
The Charter of the Association of Southeast Asian Nations (ASEAN), whichcame into force in December 2008, includes as one of its purposes:
To promote sustainable development so as to ensure the protection of theregion’s environment the sustainability of its natural resources, thepresentation of its cultural heritage and the high quality of life of its people.1
Other purposes of ASEAN include:• To enhance good governance and the rule of law;
• To create a single market and production base2;• The promotion and protection of human rights and fundamental
freedoms3; and• To promote a people-oriented ASEAN.4
Article 2 of the Charter also reaffirms the Principles of ASEAN including (butnot limited to) a shared commitment and collective responsibility, noninterference in the internal affairs of ASEAN Member States, respect for
fundamental freedoms, the promotion and protection of human rights, thepromotion of social justice and the upholding of the United Nations Charter andinternational law.5
In 1997, ASEAN adopted Vision 2020 for the ASEAN Community. Vision 2020
envisions a future in which the ASEAN Community is:[C]lean and green…with fully established mechanisms for sustainable
development…6
The recognition of Environmental Impact Assessment (EIA) as a basis forsustainable development in ASEAN was additionally acknowledged in the
Bangkok Declaration on the ASEAN Environment (1984). 7 The Bangkok
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
1

Charter of the Association of Southeast Asian Nations (signed 20 Nov. 2007), Article 1(9),available at: http://asean.org/wp-content/uploads/images/archive/publications/ASEANCharter.pdf [hereinafter ASEAN Charter].
2
ASEAN Charter, Article 1(5).
3ASEAN Charter, Article 1(7).
4ASEAN Charter, Article 1(13).
5ASEAN Charter, Article 2(2).
6ASEAN Vision 2020 (15 Dec. 1997), available at: http://asean.org/?static_post=asean-vision2020.
7
Bangkok Declaration on the ASEAN Environment (signed 29 Nov. 1984), available at:
http://environment.asean.org/bangkok-declaration-on-the-asean-environment; Kheng Lian4	
  

Declaration sought to “strengthen the use of EIA process and extended CostBenefit Analysis for minimizing the adverse effects and for ensuring properconsideration of environmental values in all projects and programmes under
government that are likely to produce significant environmental impact and its
gradual extension to the private sector including industry.”8
The Jakarta Resolution on Sustainable Development (1987) recognised that“the sustainability of development requires that development processes andenvironmental management be conducted in an integral manner” and further
noted that “the integration of environmental considerations into thedevelopment process requires that international and regional cooperation be
further heightened and intensified.” 9 The Jakarta Resolution resolved that
ASEAN member countries “adopt the principles of sustainable development toguide and to serve as an integrating factor in their common effort.”10
The ASEAN Declaration on Environmental Sustainability, signed in Singapore on
20 November 2007 by the heads of the ASEAN member countries, reiterates
the commitment to an economically vibrant and environmentally friendly
ASEAN Community so that “the present and future generation can enjoy aclean and sustainable environment.” 11 The Declaration includes a section on
Environmental Protection and Management that refers to a number of
mechanisms to promote sustainable practices.

Human rights
The recent ASEAN Human Rights Declaration has a number of relevant
principles that deal with property rights and the right to an adequate standardof living, including the rights to “a safe, clean and sustainable environment” andaccess to health care.
ASEAN Human Rights Declaration (2012)
Article 28:
Every person has the right to an adequate standard of living for himself or
herself and his or her family including:	  	  (e) The right to safe drinking water and sanitation;(f) The right to a safe, clean and sustainable environment.12
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
Koh, ASEAN Environmental Law, Policy and Governance: Selected Documents, volume 1(2009), p.657.
8
Bangkok Declaration; Koh (2009), p.658.
9
Jakarta Resolution on Sustainable Development, ASEAN (signed 30 Oct. 1987), available at:
http://environment.asean.org/jakarta-resolution-on-sustainable-development [hereinafter
Jakarta Resolution]; Koh (2009), p.663.
10
Jakarta Resolution.
11
ASEAN Declaration on Environmental Sustainability (signed 20 Nov. 2007), available at:
http://environment.asean.org/asean-declaration-on-environmental-sustainability.
12
ASEAN Human Rights Declaration (adopted 18 Nov. 2012), Article 28, available at:
http://www.mfa.go.th/asean/contents/files/other-20121217-165728-100439.pdf.

5	  Additionally, whilst the right to Development is recognised under the ASEAN
Human Rights Declaration, it is constrained so that the right to development
should be fulfilled so as to meet equitably the developmental andenvironmental needs of present and future generations.13

What is an Environmental Impact Assessment?
Rio Declaration on Environment and Development (1992)
Principle 17:
Environmental Impact Assessment, as a national instrument, shall be
undertaken for proposed activities that are likely to have a significant adverse
impact on the environment and are subject to a decision of a competent
national authority.14
Environmental Impact Assessment can be defined as:
The process of identifying, predicting, evaluating and mitigating thebiophysical, social, and other relevant effects of development proposals (andother activities) prior to decisions being taken and commitments made.

Objectives of an EIA
	
  
•
•
•
•

To ensure that environmental considerations are explicitly addressed andincorporated into the development decision making process;To anticipate and avoid, minimize or offset the adverse significant
biophysical, social and other relevant effects of development proposals;
To protect the productivity and capacity of natural systems and theecological processes which maintain their functions; andTo promote development that is sustainable and optimizes resource use
and management opportunities.15

The EIA was first introduced in the United States in the early 1970s with the
National Environmental Policy Act (NEPA). 16 Since then, the concepts andpractices of the EIA have developed significantly. A 1996 Review 17 by the
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
13

ASEAN Human Rights Declaration, Article 35.
Rio Declaration on Environment and Development, United Nations Conference on
Environment and Development, Principle 17 (1992), available at:
http://www.unesco.org/education/information/nfsunesco/pdf/RIO_E.PDF.
15
More details are available atwww.iaia.org/publicdocuments/specialpublications/principles%20of%20IA_web.pdf.
16
Mandy Elliot, Environmental Impact Assessment in Australia: Theory and Practice (2014),
p.103.
17
Barry Sadler, International Association for Impact Assessment, Environmental Assessment in a
Changing World: Evaluating Practice to Improve Performance, Final Report of the International
Study of the Effectiveness of Environmental Assessment (1996), available at:
14

6	
  

International Association for Impact Assessment (IAIA) of EIA experience
worldwide suggested four necessary ingredients to the effective application of
EIA:• Appropriate timing in initiating the assessment so that the proposal isreviewed early enough to scope for development of reasonable
alternatives;• Clear, specific directions in the form of terms of reference or guidelines
covering priority issues, timelines, and opportunities for information andinput at key decision-making stages;• Quality information and products fostered by compliance withprocedural guidelines and use of “good practices”; and• Receptivity of decision makers and proponents to the results of the EA,
founded on good communication and accountability.
In addition to these ingredients, an effective EIA must also necessarily include
the requirement for meaningful public participation.
The following definitions were adopted by the 1996 Review and are still
relevant today:
Environmental Assessment (EA) is a systematic process of evaluating anddocumenting information on the potentials, capacities, and functions of
natural systems and resources in order to facilitate sustainable development
planning and decision making in general, and to anticipate and manage theadverse effects and consequences of proposed undertakings in particular.
Environmental Impact Assessment (EIA) is a process of identifying,predicting, evaluating, and mitigating the biophysical, social, and other relevant
effects of proposed projects and physical activities prior to major decisions
and commitments being made.
Strategic Environmental Assessment (SEA) is a process of priorexamination and appraisal of policies, plans, and programmes and other higher
level or pre-project initiatives.
Social Impact Assessment (SIA) is a process of estimating the social
consequences that are likely to follow from specific policy and government
proposals, particularly in the context of national EA requirements (Interorganizational Committee on Guidelines and Principles (1994) (108).18

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
http://www.ceaa.gc.ca/Content/2/B/7/2B7834CA-7D9A-410B-A4EDFF78AB625BDB/iaia8_e.pdf.
18
Sadler (1996), p.13.

7	
  Further, the 1996 Review proposed two substantive purposes of an EIA:First, the immediate aim is to facilitate sound, integrated decision-making inwhich environmental considerations are explicitly included. The EA process
does so by providing clear, well-organized information on the environmental
effects, risks, and consequences of development options and proposals.
Secondly, the EA process is usually (but not universally) directed towardachieving or supporting ultimate goals of environmental protection andsustainable development. These reference or end goals are variously phrased
and framed in EA laws and policies, as are the specific objectives to be met by
the process.19
The EIA has developed over the past four decades into a “multi-purpose
process,” with increasing emphasis given to promoting long-term, societal goals
that reflect and express the ideals of sustainable development. Other elements
have been identified (in addition to the above aims), including:• Safeguarding valued ecological processes and heritage areas;• Avoiding irreversible and unacceptable loss and deterioration of natural
capital;• Ensuring development is adjusted to the potentials and capacities of theresource base;• Optimizing natural resource use, conservation and management
opportunities;• Protecting human health and community well-being;• Addressing distributional concerns related to the disruption of people
and traditional lifestyles;• Improving coordination among participating agencies and actions;• Fostering better designed and planned development projects, i.e.,
greener and more cost effective;• Empowering community development and building local capacity
through public participation;• Instilling environmental values and accountabilities across a range ofinstitutions; and• Internalizing environmental costs and damages in industry consistent
with the polluter pays principle.20

Key Features of the Environmental Impact Assessment Process	
  Some of the key features in the modern EIA process should include:• Screening - to determine whether or not a proposal should be subject toan EIA and, if so, at what level of detail;• Scoping - to identify the issues and impacts that are likely to beimportant and to establish terms of reference for an EIA;
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
19
20

Sadler (1996), p.13.
Sadler, (1996), p.14.

8	
  

•

•
•

•
•

•

•
•

Examination of alternatives - to establish the preferred or mostenvironmentally sound and benign option for achieving proposal
objectives;
Impact analysis - to identify and predict the likely environmental, socialand other related effects of the proposal;
Mitigation and impact management - to establish the measures that arenecessary to avoid, minimize or offset predicted adverse impacts and,
where appropriate, to incorporate these into an environmental
management plan (EMP) or system;
Evaluation of significance - to determine the relative importance andacceptability of residual impacts (i.e., impacts that cannot be mitigated);
Preparation of an environmental impact assessment statement or report(EIA Report) - to document clearly and impartially impacts of the
proposal, the proposed measures for mitigation, the significance ofeffects, and the concerns of the interested public and the communities
affected by the proposal;
Review of the EIA Report - to determine whether the report meets its
terms of reference, provides a satisfactory assessment of the proposal(s)and contains the information required for decision-making;Decision making - to approve or reject the proposal and to establish theterms and conditions for its implementation; andFollow up, Monitoring, Compliance and Enforcement - to ensure that theterms and condition of approval are met; to monitor the impacts ofdevelopment and the effectiveness of mitigation measures; tostrengthen future EIA applications and mitigation measures; and, whererequired, to undertake environmental audit and process evaluation to
optimize environmental management.

9	
  The Right to a Clean Environment
Thailand Constitutional Court’s Judgment No. 32/2552 (2009)
•
•

•
•

•

•

•

•

Parties: Mr. Paiboon Kongkerd and 210 plaintiffs, referred by the Officeof Administrative Court as Petitioner
Brief Facts: The Plaintiffs filed a lawsuit in the Administrative Court
against three local municipalities in Khonkhen, Thailand, claiming thatthese municipalities illegally approved resolutions to build a landfill in the
Khonkhen community without the preparation of an environmental
health impact assessment (EHIA), or holding a public hearing or
receiving comments from health and environmental experts.
The Khonkhen Administrative Court dismissed the case because:
According to Environmental Act B.E. 2535 (1992), which is only one law
relating to Environmental Impact Assessment, article 46 and relating
decrees, this project was not required to do Environmental Impact
Assessment.
On the public hearing ground, because the rule of the office of Prime
Minister on Public Consultation B.E. 2548 (2005) states that it is notcompulsory to do public hearing but leaves discretion to Khonkhen
governor and there is no evidence demonstrated that the governor
abused of discretion, so this was not illegal.
The Plaintiffs appealed to the Supreme Administrative Court and also
requested a Supreme Administrative Court to refer the constitutional
issue to the Constitutional Court to decide.
Legal issue: The issue was that does article 46 of the Environmental
Act B.E. 2535 (1992) contradict to article 56 of the Constitution ofThailand B.E. 2540 (1997) or article 67 of the Constitution ofThailand B.E. 2550 (2007)? Does article 46 of the Environmental Act
B.E.2535 (1992) contradict article 56 of the Constitution of Thailand
B.E. 2540 (1997) or article 67 of the Constitution of Thailand B.E. 2550
(2007)?
Judgment: The Constitutional Court ruled that article 46 of theEnvironmental Act B.E. 2535 did not contradict article 56 of theConstitution of Thailand B.E. 2540 or article 67 of the Constitution ofThailand B.E. 2550. The court also set up the precedent that the rightto live in a decent environment according to article 67 of the 2007
Constitution is guaranteed. It requires the relevant authorities toconsider if any projects, whether they are obliged to do EIA or not,are likely to cause severe impact to natural resources andenvironment of the community or cause severe impact to health ofpeople. Relevant authorities have to follow this approach if not
people have right to challenge the approval to required the projects
to do health and environmental impact assessment, public hearing
and to get commend from health and environmental experts.

10	
  Key Principles of an Environmental Impact Assessment	  An effective EIA is achieved through the adoption and application of key
principles, including:• A legally established, clear and effective process;• That the proponent bears the cost of the application and assessment
process;• Meaningful public participation at all steps of the process;• Access to information by Project Affected People (PAP) and otherstakeholders;• That all relevant information is available;• Open and evidence-based decision making; and• Effective monitoring, compliance and enforcement.21
Legally established, clear and effective process
The EIA process can be complicated, time-consuming and expensive. It
therefore needs to be underpinned by a clear legal requirement which outlines
the process to be followed. This provides certainty for all stakeholders –including the PAP, the project proponent, the EIA Consultant, government
regulators (not just environmental) and other interested parties – andconsistency in approach over time.
Following a legal process that is widely understood also reduces the potential
for disputes to arise once a decision is ultimately made.
	
  Proponent bears cost of application and assessment
The EIA process can be a costly exercise, especially for major development
proposals that involve many aspects and phases. The proper investigation andanalysis of all potential impacts of a proposal requires detailed technical work.
The EIA process also requires extensive public participation. The general publicshould not have to bear the costs of participating in, or government
assessments of, EIAs. All of these costs need to be included in the overall EIA
budget.
The EIA will also likely result in a range of monitoring and management duties
should the project proposal proceed to implementation. The project budget
needs to adequately provide for these activities.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
21

Matthew Baird and Martin Cosier, Principles of Environmental Impact Assessment, Presented
17-18 Sept. 2016 in Kyauk Phyu, Rhakine State, Union of Myanmar, available at:
http://matthewbaird.com.au/wp-content/uploads/2016/10/M-Baird-ICJ-Principles-of-EIASeptember-2016.pdf.

	
  

11	
  

Meaningful public participation at all steps of the process
A key goal of EIAs is to reduce the risk of social conflict arising from projects byensuring that all PAP and other stakeholders feel involved, valued andrespected in the decision-making on development proposals.
To be effective in this regard, public participation must occur in a structured
and planned way throughout the EIA process. Efforts to involve the public mustalso be genuine and meaningful, not simply tokenistic or undertaken tocomplete a regulatory requirement.
This public participation process must be tailored to the particular needs andcircumstances of the participants.
Access to information by Project Affected People (PAP) and other stakeholders
In order to effectively participate in the EIA process and make an informed
decision on an EIA, all PAP and other stakeholders, including civil society andgovernment agencies, must have appropriate access to information. This
includes access to technical information, as well as information that can beunderstood by laypeople. Information needs to be provided in a form andlanguage that can be used by the target audience and with sufficient time for it
to be understood, considered and responded to.
All relevant information is available
For an EIA to be a useful decision-support tool, it needs to be based on the best
available information. This information must be relevant and available to the
PAP and other stakeholders. This covers scientific information as well as local
and indigenous knowledge, which can only be obtained through genuine andmeaningful public participation (thus reinforcing the importance of this earlier
principle).
Identifying the “best available” information involves a balance between relying
on the most up-to-date and comprehensive knowledge and providing what canbe feasibly (and affordably, in the context of the particular development
proposal) obtained.
	  Open and evidence-based decision making
An effective EIA process requires both the preparation of an EIA by the project
proponent (and/or the EIA consultant) and the review of the EIA by thegovernment to determine whether or not the project should proceed. This
review must be conducted transparently and based on sound reasoning.
The government’s review of the EIA needs to be independent of the
preparatory work and must involve an independent public participation process.
The ultimate decision on whether or not to approve the EIA and the project
	
  

12	
  

should be made according to the evidence contained in the EIA Report and in
public submissions made to the government.
The entire review and decision-making process should be transparent, with thegeneral public able to follow the process and access the ultimate decisions andreasoning.
Effective monitoring, compliance and enforcement
The EIA process formally ends with a decision, but an approved EIA Report andits Environmental Management Plan (EMP) are critical ongoing tools for
ensuring the project’s impacts are addressed in the way intended when it wasapproved. It is vital for the overall integrity of the EIA system that governments
and other external parties are able to monitor the performance of projects andensure they comply with all commitments and duties contained in the EIA
Report and EMP.
The monitoring mechanisms and findings adopted within a project must be
made publicly available for all stakeholders to have confidence in both the
project at hand and all future EIAs.

Key mechanisms for an Environmental Impact Assessment
To achieve the overarching goal of sustainable development, an EIA should use
some key analytical criteria in the assessment process. These mechanisms
reflect current norms of international environmental law. Many of thesemechanisms are included within the Rio Declaration on Environment andDevelopment, adopted at the 1992 Earth Summit (the Rio Declaration).
Five primary mechanisms can be identified:• Reliance on participatory approaches22;• Application of the precautionary principle23;• Application of the principle of intergenerational equity24;• Conservation of biological diversity and ecological integrity is a primaryconsideration25; and• Improved valuation, pricing and incentives.26
Reliance on participatory approaches	
  A central feature of an EIA is to maximise the opportunity for participation by all
stakeholders. Stakeholders include other government departments, nongovernmental organisations (NGOs), civil society organisations (CSOs), the
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
22

Rio Declaration, Principle 10.
Rio Declaration, Principle 15.
24
Rio Declaration, Principle 3.
25
Rio Declaration, Principle 4.
26
Rio Declaration, Principles 8, 12-13, 16.
23

	
  

13	
  

general community (whether directly or indirectly affected), indigenous
communities and the corporate sector. Best-practice EIA will provide for public
participation at all stages of the assessment process, from scoping to decisionmaking, and will provide community participation in the compliance andmonitoring phase of the development. Best-practice EIA will also provide for
specific participation strategies for women27 and indigenous people and theircommunities.28
Application of the Precautionary Principle	  Where there are threats of serious or irreversible environmental damage, lackof full scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation. In the application of the
precautionary principle, public and private decisions should be guided by:•Careful evaluation to avoid, wherever practicable, serious or irreversible
damage to the environment; and•An assessment of the risk-weighted consequences of various options.29
Intergenerational equity	  The principle of intergenerational equity provides that the present generation
should ensure that the health, diversity and productivity of the environment ismaintained or enhanced for the benefit of future generations. This requiresconsideration of the impact of a proposed activity or project that takes into
account any long-term impact. This could also require consideration of project
closure and site decontamination.
Conservation of biological diversity and ecological integrity	  The starting point for the assessment of any development proposal is thatconservation of biological diversity and ecological integrity should be afundamental consideration. 30 This does not mean that a project cannot beapproved if it will harm the environment. It merely ensures that harm anddamage to the environment and society must be justified by the project. The
project must evaluate various options and propose ways to avoid or reduce thepotential harm. If harm is unavoidable, the project must provide appropriatecompensation for the harm.
Improved valuation, pricing and incentives	  The use of economic tools is integral to an effective EIA. Environmental factors
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
27

Rio Declaration, Principle 20.
Rio Declaration, Principle 22.
29
Inter-Governmental Agreement on the Environment, signed by the Australian Government
and its States and Territories and Local Government (signed 1 May 1992), available at:www.environment.gov.au/about-us/esd/publications/intergovernmental-agreement.
30
See for example the National Environment Policy of Myanmar (1994) that makes
environmental protection the primary objective in seeking development.
28

	
  

14	
  

should be included in the valuation of assets and services, including eco-systemservices. This is particularly important to accurately evaluating the costs versus
the benefits of projects. Additionally the EIA process should adopt the principleof “polluter pays.”31 This principle is often defined to mean that those who
generate pollution and waste should bear the cost of containment, avoidance orabatement.
One other economic measure is that the users of goods and services should
pay prices based on the full life cycle costs of providing goods and services,
including the use of natural resources and assets and the ultimate disposal of
any wastes.32

Public Participation in an Environmental Impact Assessment	
  Public participation is recognized as an integral part of the environment impact
assessment process. Public participation was identified in the Rio Declarationof 1992 and has been accepted as a part of EIA since the beginnings of EIA in
the 1970s.
Rio Declaration on Environment and Development (1992)
Principle 10:
Environmental issues are best handled with the participation of all concerned
citizens, at the relevant level. At the national level, each individual shall haveappropriate access to information concerning the environment that is held by
public authorities, including information on hazardous materials and activities
in their communities, and the opportunity to participate in decision-making
processes. States shall facilitate and encourage public awareness andparticipation by making information widely available. Effective access to
judicial and administrative proceedings, including redress and remedy, shall be
provided.33
Some benefits may be difficult to value, such as better decision-making or thedevelopment of greater trust in government agencies. Other benefits, such as
better project design, efficient environmental management or an effective
grievance process, may be difficult to measure but provide real benefits to thecommunities affected by development.
Also, because public participation falls into a broad spectrum of approaches andpractices, choosing the most effective and relevant approach can be difficult.
The International Association for Public Participation (IAP2) has developed aspectrum for public participation. We use this spectrum in the Guidelines. Goodpublic participation will depend on how each of the steps is managed.
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
31

Rio Declaration, Principle 16.
Rio Declaration, Principles 8, 13, 16.
33
Rio Declaration, Principle 10.
32

	
  

15	
  

In most cases the project proponent and the EIA consultant should develop, in
consultation with the PAP and interested stakeholders, a Public Participation
Plan. This Plan, also called a Stakeholder Engagement Plan, is the roadmap or
guide to the involvement and consultation that will occur during the EIA
process. The Public Participation Plan needs to fit the project and the local
environment and community and is to be tailored to the specific project.
It must always be acknowledged that consultation is not participation. It is one
part of the process. Information exchange is important and responding to theissues raised by the stakeholders is an important part of public participation.

	
  

16	
  

	
  

17	
  

Public participation was part of the EIA process since the passage of the US
National Environmental Policy Act (NEPA), which formally established EIA in the
USA in 1969.34 As the international community modified and adopted the EIA,
public participation remained a key feature of the process. This was recognised
in Principle 10 of the 1992 Rio Declaration, which stated: “environmental issues
are best handled with the participation of all concerned citizens at the relevant
level.” In 1998, the UN Economic Commission for Europe (UNECE) negotiatedthe Convention of Access to Information, Public Participation in Decision
Making and Access to Justice in Environmental Matters (the Aarhus
Convention). The Aarhus Convention recognised that public participation
enhanced decision-making and improved the quality and implementation ofdecisions.
The Aarhus Convention contains a number of definitions:“The public” means one or more natural or legal persons, and, in accordancewith national legislation or practice, their associations, organizations orgroups.
“The public concerned” means the public affected or likely to be affected by,or having an interest in, the environmental decision-making; for the purposesof this definition, non-governmental organizations promoting environmental
protection and meeting any requirements under national law shall be deemed
to have an interest.
Although Article 6 of the Aarhus Convention outlines the provisions for public
participation in decisions on specific activities, there is no clear definition ofwhat constitutes adequate public participation. Certain elements arerecognised in Article 6:• Early notification;• Adequate;• Timely;• Effective;• Nature of the proposal;• Identity of the decision-maker;• Procedure for public to make comments;• Adequate time-frame for comments; and• Whether the proposal is subject to EIA or transboundary EIA procedures.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
34

Anne N. Glucker et al., Public Participation in Environmental Impact Assessment: Why, Whoand How?, Environmental Impact Assessment Review volume 43 (2013), pp.104-11.

	
  

18	
  

Meaning of Public Participation	  A recent review of public participation in EIA identified that it is not always clear
what is meant by public participation or community consultation. Nor is it
always clear what the “public” or the “community” means. It has also been
noted that there is a significant disagreement as to the specific objectives ofpublic participation in EIA.35 This not only relates to academic debate but “isalso reflected in EIA practice.”36
There is also “considerable dispute” as to the goals of public participation.37 A
group of academics has identified nine overarching objectives for public
participation:• Influencing decisions;• Enhancing democratic capacity;• Social learning;• Empowering and emancipating marginalised individuals and groups;• Harnessing local information and knowledge;• Incorporating experimental and value-based knowledge;• Testing the robustness of information from other sources;• Generating legitimacy for decisions; and• Resolving conflict.
In addition, there is also not always a clear understanding or agreement on who
should participate: everyone interested in the project or the outcome, or only
those with recognised interests. An inclusive approach may lead to greater
legitimacy but given scare resources and limited capacity, such an approachrisks overburdening the EIA systems.38
In many countries, including Costa Rica and Nicaragua, the failure to take into
account public comments and submissions has led people to “refrain fromformal participation in an EIA and to make use of informal forms of participation
instead (such as protest marches, boycotts, etc.).”39
Cheryl Wasserman of the United States Environmental Protection Agency(USEPA) notes that “meaningful public participation requires much more that
simply holding public meetings or hearings or collecting public comments.”40 In
the US, it is more about engagement and consideration of the issues raised by
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
35

Glucker, et al. (2013), p.104.
Glucker, et al. (2013), p.106.
37
Glucker, et al. (2013), p.106.
38
Glucker, et al. (2013), p.109.
39
Glucker, et al. (2013), p.109.
40
Cheryl Wasserman, United States Environmental Protection Agency, Application of Public
Participation Principles in EIA: Strengthening Public Participation in
Environmental Management in Indonesia, Presented 10-11 July 2012 in Jakarta, Indonesia,
available at: https://www.epa.gov/sites/production/files/2014-05/documents/application-ppeia.pdf; Cheryl Wasserman, United States Environmental Protection Agency, National
Environmental Policy Act (NEPA) Regulations, Guidelines and Experience, 19 Nov. 2014,
available at: epa.connectsolutions.com/p6qgkt3cfqh.
36

	
  

19	
  

the engagement.41 At its highest, public participation allows the public to legallyand peacefully influence the decision. Wasserman identifies some of therationale behind the inclusion of public participation in an EIA:
• Relevant information;• Better decisions;• Builds understanding and legitimacy;• Often results in creative solutions;• Useful role in monitoring follow up;• Minimizes cost and delay from unresolved conflicts; and• Facilitates implementation.
She lists nine elements to define the public participation role in an EIA:
• Understand public participation requirements for an EIA;
• Incorporate public participation principles in an EIA;
• Identify the public and stakeholders;• Define decision-making roles of stakeholders/public;• Tailor and apply public participation tools;• Respond to interests: avoid/mitigate/compensate;• Implement environmental conflict resolution;• Transparency and documentation; and• Define performance in terms of success indicators.42
In addition, the USEPA has identified five consistent lessons for successful
publication participation in an EIA:
• Adapt the process to meet the needs of the circumstances;• Reach out to and understand the audience;• Start early in the EIA process;• Consider public consultation and involvement an ongoing process, not a
one-time event; and• Attempt to find ways to be responsive to concerns withoutcompromising scientific integrity, law or feasibility.43
Moreover, the US and Australian experience has identified many different
mechanisms to gather information and input from stakeholders. These can
include any of the following:• Public hearings;• Public comment periods soliciting written comment letters;• Public meetings;• Small group meetings, focus groups or workshops;• Advisory groups and task forces;• News releases, newsletters with public comment forms, fact sheet,flyers;
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
41

Council on Environmental Quality, Executive Office of the President of the United States, A
Citizens Guide to the NEPA: Having Your Voice Heard (Dec. 2007), available at:https://ceq.doe.gov/nepa/Citizens_Guide_Dec07.pdf.
42
Wasserman (2014).
43
Wasserman (2012).

	
  

20	
  

•
•
•
•
•
•
•
•
•

Media – feature stories, interviews, public service announcements;
Project/program websites;
Information repositories or clearinghouses;
Speakers bureaus;
Surveys or polls;;
Mailing lists;
Briefings by and for public officials;
Social networking (Facebook, Twitter, etc.); andVisioning.44

Environmental Impact Assessment in Practice in the Mekong
The EIA is employed in nearly all countries of the world. It has been suggested
that 191 of the 193 member nations of the United Nations either have national
legislation or have signed some form of international legal instrument thatrefers to the use of the EIA.45 The worldwide spread of the EIA was assisted by
Principle 17 of the Rio Declaration, which provides that signatory nations must
employ the EIA “for proposed activities that are likely to have a significant
adverse impact on the environment and are subject to a decision of acompetent national authority.”46
Environmental Impact Assessment in the Mekong Region
The EIA is a process used by all governments in the Mekong Region to assess
the potential impacts of development proposals and to consider alternative
options and management strategies as part of the decision on whether toproceed with the project.
The EIA is recognised as an important tool to assess and analyse theenvironmental, social, economic and other impacts of a project and develop
ways to avoid, mitigate or manage these potential impacts. It is also a processused to identify and respond to key concerns by PAP and other stakeholders
The entire EIA process must be completed before any approval is given for aparticular project. This is critical, given that one of the main objectives of an EIA
is to ensure the negative impacts of proposals are avoided, or at least reducedor mitigated, before they arise. It is also important to meet the objective ofensuring affected citizens have the opportunity to participate in the decisionmaking process.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
44

Wasserman (2012).
Richard K. Morgan, Environmental Impact Assessment: The State of the Art, Impact
Assessment and Project Appraisal volume 30, issue 1 (2012).
46
Angus Morrison-Saunders and Francois Retief, Walking the Sustainability Assessment Talk –Progressing the Practice of Environmental Impact Assessment (EIA), Environmental Impact
Assessment Review volume 36 (2012), pp.34-41.
45

	
  

21	
  

Screening(!
INITIAL(ENVIRONMENTAL(!
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Preparation(of(draft(!!
EIA(Report(and(ESMP(!!
Submission(of((((((((((((((((((((((!!
EIA(Report(!!
Assessment(of((((((((((((((((((((((!!
EIA(Report(and(ESMP(!!
Approval(of(EIA(Report(!!
and(ESMP(!!!
Environmental(Compliance(!!
Certificate((ECC)(!!
!
!!!
OTHER(PERMITTING(!!!
!
PROCESS(!!
!
!
Commencement(of(!
Project(Construction(!
!
!
Commencement(of(!
Project(Operations!
!
!!

!!!

!!
!!
!!
!!

!!!

!!
!!

!!

!
!!

!

!!

!

!!

Closure(of(Completion(!!
of(Project(
!!!

!

!!

!!!

!

!!!

!

!!!

!!!

Monitoring(and(Compliance(!
with(ECC(and(ESMP(!!

Reject(!
!
Appeal(Process(
!!
!!
!!
!!
!!
!!
!!

!!!

YELLOW(FONT(=(stage(where(public(
participation(occurs(
!

!!
!!

!

!!

!

Figure 1: Overview of Environmental Assessment Process.47

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
47

PACT, Regional Technical Working Group on Environmental Impact Assessment, Draft
Guidelines on Public Participation (2015).

	
  

22	
  

Each country provides for a specific Ministry or Department to be responsible
for the EIA process. In all countries in the Mekong, the EIA investigation and EIA
Report preparation are undertaken by an EIA consultant engaged by the project
proponent. The EIA consultant will conduct the assessment and prepare thestudies that form the basis for the EIA Report.
The EIA is a process that can be divided into a number of steps. Each step ispart of the process. All of the steps must be followed to achieve compliancewith the EIA procedures. Although each country does have its own system of
EIA, there are a number of similarities.
Steps in the EIA process	  The EIA systems in the Mekong Region and throughout much of the world
generally have most or all of the following steps:
1.
Screening;2.
Scoping/defining Terms of Reference (ToR);
3.
Collection of data by EIA Consultants;
4.
Preparation of draft EIA Report;
5.
Preparation of Environmental and Social Management Plan (ESMP);
6.
Submission of EIA Report;
7.
Assessment of EIA Report and ESMP;
8.
Decision on whether to approve EIA Report and ESMP;
9.
Issuing of Environmental Compliance Certificates (ECCs);
10. Approval of other licenses or permits;
11.
Commencement of project construction;
12. Commencement of project operations;
13. Monitoring and compliance with ECC and ESMP; and14. Closure or completion of project.
This process is depicted in the flow-chart in Figure 1. This is taken from theRegional Technical Working Group on Environmental Impact Assessment(RTWG on EIA).
In order to consider a more simplified approach to the EIA, the following steps
can be identified as key parts of the EIA process:1.
Screening;2.
Scoping;3.
Conducting Environmental Impact Assessment and preparation of EIA
Report and ESMP;
4.
Review of EIA Report and ESMP;
5.
Decision on EIA and EMP; and6.
Monitoring and compliance.
Each of these steps provides an opportunity for participation by PAP and otherrelevant stakeholders. These six steps are therefore used as the key focal areas
for this Manual.
	
  
	
  

23	
  

Step 1: Screening	  The first stage in the EIA process is the screening stage. Screening is an
important part in the EIA process. It is often the first time that the project
proponent will discuss the proposed project with the government and with thecommunity. The key outcome for the screening step is a Screening Report.
Most of the screening lists in the Greater Mekong Subregion (GMS) countries
combine these factors in listing projects that require an EIA to be prepared. But
the screening lists can remove some of the subjective categorization ofdevelopment projects. It is always important to ensure that all projects likely tohave a significant environmental or societal impact are subject to an EIA andnot only those referred to in the screening lists.
	  Step 2: Scoping	  Scoping is an important step in the EIA process. It embodies the process fordetermining the scope of an EIA (i.e., the data that need to be collected andanalysed to assess the potential adverse impacts of a project) and producing a
Terms of Reference (ToR) for preparation of an EIA Report.48
Scoping is often the first time that the project proponent will discuss the
proposed project with the government and with the community. The key
outcome for the Scoping Report is the preparation of the Draft Terms ofReference for the EIA for the proposed project. The Draft ToR will contain the
key environmental and social impacts that will need to be investigated andassessed by the EIA consultant. These Draft ToR should be approved by thegovernment in conjunction with the Scoping Report, which should articulate
both the public participation efforts to date and the future public participation
plan. The EIA assessment step will then gather and analyse all the impacts
identified in the ToR and consider the mitigation measures, including
alternatives to the project.
The Scoping step of the proposed project has the following objectives:• Define the study area, area of influence, time boundaries, project phases
and potential stakeholders;• Start the process of understanding the applicable regulations andstandards and their context for project design and completion of the EIA;
• Make a provisional identification of Environmental Impacts, focusing inparticular on the environmental, social and health issues that need to beaddressed in the EIA;
• Provide an indication of the depth and breadth of the EIA investigations
including what baseline data and information are required, what further
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
48

Government of the Republic of the Union of Myanmar, Ministry of Environmental
Conservation and Forestry, Environmental Impact Assessment Procedure, Article 2(gg) (2015),
available at: http://www.myanmar-responsiblebusiness.org/pdf/2015-06-Myanmar-EIAProcedures.pdf [hereinafter Myanmar EIA Procedures].

	
  

24	
  

•

•
•

studies and investigations must be carried out and how such datacollection, studies and investigations shall be undertaken;
Provide an opportunity for consultants, relevant authorities, project
developers and interested and affected parties to express their views
and concerns regarding the proposal before an EIA proceeds;
Enable an efficient and comprehensive assessment process that saves
time, resources and costs and avoids delays; andIdentify potentially affected communities and other stakeholders with aninterest in the project.49

As part of the scoping, the project proponent shall ensure that the following
public consultation and participation process is carried out:
• Disclose information about the proposed project to the public and civilsociety through posting on the project or project proponent’s website(s)and local media, including by means of the prominent posting of legible
sign boards and advertising boards at the project site which are visible tothe public; and• Arrange the required complement of consultation meetings as advisedby the Ministry, with local communities, potential PAPs, local authorities,
community based organizations and civil society, and provide appropriate
and timely explanations in press conferences and media interviews.50
Checklist of PAP and Stakeholders for Scoping Step51
1. Government Authorities• National, provincial, district and local authorities;• Authorities responsible for pollution control including
water, waste, soil, noise and air pollution;• Authorities responsible for protection of nature, cultural
heritage and the landscape;• Health and safety authorities;• Land use control, spatial planning and zoning authorities;
and• Authorities
inneighbouring
countries
wheretransboundary impacts may be an issue.
2. Other Stakeholders• Local, national and international environmental, social anddevelopment interest groups;• Sector government departments responsible for
agriculture, energy, forestry, fisheries, etc. (whose
interests may be affected);• International agencies whose interests may be affected,
e.g., Mekong River Commission;• Local employers’ and business associations such as
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
49

Myanmar EIA Procedures.
Myanmar EIA Procedures, Article 50.
51
Laos EIA Guidelines, MONRE, 2012. Box 3.3, p.26.
50

	
  

25	
  

Chambers of Commerce, trade associations, etc.;
Civil Society organizations such as women’s groups, youth
groups, etc.;• Employees’ organisations such as trades unions;• Groups representing users of the environment, e.g.,
farmers, fishermen, women using local resources for own
consumption and trade, tourism operators;• Research institutes, universities and other centres ofexpertise; and• The local and national media.
3. PAP and the wider community• Landowners and residents;• Ethnic groups in the affected area;• Elected representatives and community figures such as
religious leaders or teachers;• Local community groups, resident groups, etc.; and• Members of the local and wider general public.
•

The key issues and impacts should also be divided into the different stages ofthe project. These stages could include construction, operation and closure.
Sometime the operation stage may include plans to enlarge or intensify the
project, such as a special economic zone or a mine. The EIA consultant should
outline clearly the different stages of the project and the proposedconstruction and operation timeline.
Some of the key issues to be explained by the EIA consultant in the meetings
during the Scoping Step include:• Project boundaries and limits;• Key concerns (based on similar projects);• Identification/explanation of the steps in the EIA process;• Significant potential impacts;• Identification of sensitive/important areas;• Identification of alternatives;• Identification of key environment/social issues;• Identification of the PAP;
• Identification of the other stakeholders;• Stakeholder engagement plan (Public Participation Plan); and• Draft ToR.
Step 3: Preparation of the EIA	
  Once the Scoping Report and ToR have been approved by the relevant EIA
authority, or finalized by the EIA consultant, the task of gathering theinformation and preparing the EIA Report commences. This can take between
three months and three years, depending on the type of project and theenvironmental and social issues that must be addressed.

	
  

26	
  

Based on the information gathered, the EIA consultant will prepare the EIA
Report. Once the EIA Report is drafted, the EIA consultant should arrange for ameeting (or meetings) to present the draft EIA Report to both the Ministry and
the PAP and stakeholders. Following the consideration by the EIA consultant of
those comments and issues raised by the PAP and stakeholders, the EIA Report
should be revised. The EIA Report is then ready to be submitted to the EIA unit
for review and assessment.
The EIA Report should include the key sections as required under national laws.
These can be summarised as follows:•
Executive Summary;•Context of the Project;•
Policy, Legal and Institutional Framework (including Environmental
Quality Standards);•
Project Description and Alternatives to the Project;•
Description of the Environment (including social aspects);•
Impact Assessment and Mitigation Measures;•
Cumulative Impact Assessment;•
Risk Assessment;•
Public Participation Report and Comments; and•Technical Reports.
An Environmental Management Plan (EMP) must be prepared for the project.
The EMP should be presented in a separate volume annexed to the EIA Report.
It should be developed for each stage in the project as required: preconstruction, construction, operation, closure, decommissioning andrehabilitation.
Step 4: Review and Assessment of the EIA	  The decision on whether to approve, require amendments to, or reject outright
an EIA ultimately rests with government. This is a decision that should be madeindependently, transparently and on the basis of complete information andscientific evidence. Accordingly, a clear review process, involving opportunities
for public participation, is required.
Importantly, at this review step, the responsibility for organising public
participation, with the targeted goal of PAP and stakeholder input, shifts fromthe proponent (and its EIA consultant) to the responsible government decisionmaking body (the EIA authority).
Important considerations for the EIA authority in reviewing the EIA and deciding
whether or not it should be approved include (but are not limited to) the
following:• The level of public participation undertaken throughout the preparationof the EIA;
• The PAP and stakeholder views on the project proposal, including the
EMP and any compensation proposed;
	
  

27	
  

•
•
•
•
•

Whether the proposed mitigation measures and EMP are likely toadequately address/reduce the impacts;
The relevance and value of project commitments (i.e., those proposedsocial benefits in addition to the EMP measures);
Consistency with broad sustainable development objectives;
Consistency with the approved ToR; andConditions that should be attached to an approval (in addition to thecommitments in the EIA and EMP).

Step 5: Approval of the EIA Report	  The government makes the ultimate decision as whether to approve, require
amendments to, or reject outright an EIA. This decision must be madeindependently, transparently and on the basis of complete information andscientific evidence.
Once a decision is made on the EIA, the public and proponent should both haveaccess to an appeals process. For the appeals process to be effective andtrusted, the decision must be publicly released along with the reasoning.
Following the approval of the EIA Report, the project will require all otherapprovals and permits, including any foreign investment approvals.52
Step 6: Monitoring and Compliance	  For projects that have an EIA approved and proceed to implementation, it isvital both for the environmental and social outcomes and for the integrity of the
EIA system that the project construction, operation and eventual
decommissioning comply with the EIA, ESMP and any conditions of approval.
To ensure this compliance, and to achieve the commitments in the EIA, amonitoring system is required that involves both internal monitoring by the
project manager and objective monitoring by external parties. This externalmonitoring could be undertaken by either (or both) government bodies orcommunity organisations.
Monitoring is a continuous activity. Monitoring will help satisfy the communitythat the project is being operated in accordance with the conditions ofapproval. It also helps to respond to issues and concerns before serious
consequences occur.
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
52

Myanmar's new 2016 Investment Law might distinguish its processes from the other Mekong
countries. Under Myanmar’s 2015 EIA Procedures, EIA Reports must be approved, and an ECC
issued, before the project receives relevant approvals and permits to proceed with
implementation. However, the 2016 Myanmar Investment Law does not indicate whether an
ECC must be issued before or after an investment permit is granted. The Government of
Myanmar is expected to clarify this point through regulations in early 2017.

	
  

28	
  

There also needs to be a mechanism to ensure that the community
engagement that was committed to in the EIA and EMP is being undertaken
during the project implementation. Should the monitoring discover a lack ofcompliance or breaches of conditions, mechanisms to enforce compliance need
to be readily available and understood by the project proponent, as well as the
PAP and other stakeholders.

Compliance, Monitoring and Enforcement
Although the formal EIA process may end with an approval of a project, this iswhen the impacts will start to be felt by the PAP. As the project gets underway,
there should be opportunities for the PAP and other stakeholders to ensurethat the project fulfils all the conditions of the approval or permit and complies
with the obligations and commitments made during the EIA process.
Prior to Construction
The project proponent and the project builder should arrange a meeting with
the PAP before the pre-construction and construction works begin on site. This
meeting should provide the details of the proposed construction schedule.
Details should be provided about issues like the number of trucks andconstruction vehicles, the number of works, the hours of construction and how
long the construction period will last. The possible impact to the PAP should
also be explained.
Construction Phase
The project builder should also detail the proposed Public Participation Plan
during the construction phase. This should provide details of any Community
Consultation Committee (CCC) and any Grievance Redress Mechanism. For
larger projects that will last a number of months (or years) and will havesignificant impacts during construction, the CCC should meet on a regular basis.
The PAP should be well represented in the CCC and the PAP should be allowed
to choose their representatives. CSOs should also be represented on the CCC.
Additionally, the project builder should be represented, so as to allow
comments and complaints to be quickly addressed.
The CCC should engage and empower the PAP and stakeholders so thatproblems and issues are dealt with quickly and efficiently.
Operational Phase
The operational phase will last the life of the project and should have its own
EMP. This EMP will include the details for the management of theenvironmental and social impacts of the project.
During the operational phase the project builder will be required to undertake
monitoring of any pollutant produced by the operation of the project. This
	
  

29	
  

could be air pollution, noise pollution, visual pollution or water pollution. The
project will also produce waste. This waste could be recyclable waste, general
garbage or even toxic or hazardous waste.
Table 2: Summary of Public Participation at Key Stages in the EIA Process
Cambodia

Laos PDR

MyanmarThailand

VietnamScreening

Yes, inpractice.

No.

No
requirements
to consult with
PAP.

No
requirement
for PP.

Scoping/
ToR

Yes.

Yes. PAP
must beinvolved in
scoping.

Yes, clear
requirements
for PP.

Yes.

Preparation

Yes.

Yes, there isarequirementfor MoE tohold PPmeeting.

ToR must
provide details
of PP plan tobe approved by
MOECAFMOECAF must
hold PPmeetings andreceivecomments.

Yes, twice for
EHIA.

Assessment

Yes. PAP and
local
communities
must beconsulted.
Yes, MONRE
must consult
at various
levels during
theassessment,
including on
EMP.

Feasibility
assessment
should include
some
consultation.
Not checkedagainst EIA.
There isrequirement
for PP.
Yes, butlimitedguidance.

ExpertReview Panelmay hold
publicmeeting.
Required for
EHIA.

No clearrequirement
to hold
further PP
meetings
duringassessment.

Approval

Not clear if
approval is a
publicdocument.
EIA and ECC
not yetpublic.
Yes, PAP
should be
involved andhave GRM

ECC must be
made publicallyavailable
including EMP.

Approval is a
publicdocumentand should
include EMP.

EIA must be
madeavailable.

Yes.
Community is
involved in
EMP.

No
requirement
for community
involvement.

No.

No.

No.

Reports areprovided to
ONEP andpermitting
authority.
Citizens can
bringproceedings
in court.

Monitoring

Enforcementof EIA
Process by
PAP

	
  

30	
  

No.

Requirement to comply with the EHIA obligations of the Constitution ofThailand 2550 (2007)
Central Administrative Court’s judgment No.1352/2553
•
•

•

•

•

Parties: Anti-­‐Global Warming Association and 42 plaintiffs v The
National Environmental Board and 7 defendants
Brief Facts: The Constitution of Thailand 2550 (2007) came into
force on 24 August 2007. The question was whether since that time
the Defendants had a duty to consider whether projects or activities
are likely to cause severe impact to natural resources or environmentof community or to health of people or not? If they are fall under thiscategory, to conform with Article 67of the Constitution the
Defendants would need to conduct a environmental and health impact
assessment (EHIA), arranging public hearing and give environmental
and health experts an opportunity to commend. The Defendants, it
was claimed, had ignored this requirement for EHIS and had given atleast 76 permissions for projects/activities which were likely to cause
severe impact to community, using same procedures they adopted
before this constitution coming into force.
Legal Issue: Did the 76 permissions given to business owners after
the 2007 Constitution of Thailand came into force contradict therequirements of article 67 of the 2007 Constitution?
Judgment: The Central Administrative Court held that according to
the 2007 Constitution, the performing of the legislative, executive andjudiciary must conform with the rule of law. Furthermore, article 27 of
the 2007 Constitution stated that rights and freedoms recognized by
the Constitution, both explicitly and implicitly, or recognized by theConstitutional Court must be protected and be bounded directly tolegislative, cabinet, judiciary, constitutional organs and administrative
agencies in legislating, applying and interpreting laws. The
Administrative Court was bound to protect rights, freedom of people
and public interest by stopping the impact to community, quality ofthe environment and the health of people, which has occurred in Mah
Tha Phut and surrounding areas, by enforcing relating stakeholders to
conform procedures written in article 67 paragraph 2 of theConstitution.
The Central Administrative Court revoked permissions, which werelisted in the list of severe impact projects or activities by the decree of
Natural Resources and Environment Ministry in 2010, given tobusiness owners after 2007 Constitution came into force which did
not conform all procedures were written in article 67 paragraph 2 ofthe 2007 Constitution.

	
  

	
  

31	
  

Kingdom of Cambodia
Introduction	  The legal requirements for EIAs in Cambodia are set out in the Law on
Environmental Protection and Natural Resource Management (1996) (Chapter
III) (EPNRM Law)53 and the Sub-Decree on Environmental Impact Assessment(1999) (EIA Sub-Decree).54
Law on Environmental Protection and Natural Resource Management(1996)
Article 1:
This law has an objective:• To protect and upgrade the environment quality and public health bymeans of prevention, reduction and control of pollution;• To assess the environmental impacts of all proposed projects prior to theissuance of decision by the Royal Government;• To ensure the rational and sustainable preservation, development,
management and the use of the natural resources of the Kingdom of
Cambodia;• To encourage and provide possibility to public to participate in theprotection of the environment and the management of the natural
resources;• To suppress any acts which may affect to environment.55
Cambodia is currently in the process of developing a new Environmental Code.
A draft EIA law, which was in the process of being finalized in 2015, will now
become part of the new Environmental Code. It is expected that theEnvironmental Code will be submitted to the National Assembly in early 2017.56
The new Environmental Code, as with all Cambodian law, will need to comply
with the national Constitution, which requires the state to protect theenvironment:
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
53

Kingdom of Cambodia, Law on Environmental Protection and Natural Resource Management,
Preah Reach Kram/NS-RKM-1296/36 (enacted 18 Nov. 1996), available at:
http://www.cambodia-redd.org/wp-content/uploads/2013/05/LAW-1296-36-96Environmental-Protection-Natural-Resources-Mgt-E.pdf [hereinafter Cambodian EPNRM Law(1996)].
54
Kingdom of Cambodia, Sub-decree on Environmental Impact Assessment Process, No. 72
ANRK.BK (issued 11 Aug. 1999), available at:
http://sithi.org/admin/upload/law/72%20on%20the%20Environmental%20Impact%20Assessm
ent%20Process%20(1999).ENG.pdf [hereinafter Cambodian EIA Sub-decree (1999)].
55
Cambodian EPNRM Law (1996), Article 1.
56
See Ros Chanveasna, Environmental Code Aims to Safeguard Natural Resources, Khmer
Times (6 Apr. 2016), available at: http://www.khmertimeskh.com/news/23704/environmentalcode-aims-to-safeguard-natural-resources.

	
  

32	
  

Constitution of Cambodia (1993)
Article 59:
The State shall protect the environment and balance of abundant natural
resources and establish a precise plan of management of land, water, air,wind, geology, ecological system, mines, energy, petrol and gas, rocks andsand, gems, forests and forestry products, wildlife, fish and aquatic
resources.57
There are also a number of other Prakas58 on the procedures implementing the
EIA Sub-Decree (1999):
•
•

•

•

•

Prakas on General Guidelines for Conducting Initial and Full
Environmental Impact Assessment Reports (No.376 BRK.BST 2009)
Prakas on Registration of Consulting Firms for Studying and Preparing
Environmental and Social Impact Assessment Report (No.215 Brk MoE
2014)
Prakas on Delegation of Authority to the Provincial Departments ofEnvironment on Matters Related to Investment Project on Behalf of the
Ministry of Environment (No. 230 BRK.BST, 29 July 2005)
Inter-ministerial Prakas on screening on for project of all kinds ofconstruction minerals exploitation or other minerals with thecharacteristic of handicraft or small exploitation (No 191, 26 April 2016)
Decision on the composition and duties of the EIA Coordination
Working Group (8 July 2015)

Under the current framework, all investment project applications and all
projects proposed by the state shall have an Initial Environmental Impact
Assessment (IEIA), a report of pre-feasibility study or an EIA as specified in
Articles 6 and 7 of EPNRM Law.59 A copy must be submitted to the Project
Approval Ministry/Institution and the MoE.
Law on Environmental Protection and Natural Resource Management(1996)
Article 6:
An environmental impacts assessment shall be carried out on every project
and activity of either private or public and shall be examined and evaluated by
the Ministry of Environment before it is submitted to the Royal Government
for decision. This assessment shall also be applicable for those existing
activities and those which are being under process and which theirenvironmental impacts have yet not been assessed.
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
57

Kingdom of Cambodia, Constitution of the Kingdom of Cambodia (adopter 21 Sept. 1993),
Article 59, available at: http://www.wipo.int/edocs/lexdocs/laws/en/kh/kh009en.pdf.
58
A Prakas is a regulation promulgated by a Ministry to implement a law.
59
Cambodian EPNRM Law (1996), Article 6-7.

	
  

33	
  

Procedures for the environmental impact assessment shall be determined bysub-decree following a proposal of the Ministry of Environment.
Nature and size of the proposed projects as well as the existing activities andactivities under process of both private and public which are subject toassessment of their environmental impacts, shall be determined by subdecree following a proposal of the Ministry of Environment.60
Article 7:
Every Investment Project Application and proposed project which aresubmitted by the State, shall enclose with them a preliminary Environmental
Impact Assessment or Environmental Impact Assessment as stated the article
6 of this law. The Ministry of Environment shall consider and makerecommendations on the preliminary Environmental Impact Assessment orEnvironmental Impact Assessment to relevant competent bodies within aperiod as determined in the Law on Investment of the Kingdom of
Cambodia.61
The EIA Sub-Decree was prepared by the MoE and issued by the Prime Ministerof Cambodia in 1999. The objectives of the EIA Sub-Decree are set out in
Article 1.
Sub-Decree on Environmental Impact Assessment (1999)
Article 1:
The main objectives of this Sub-Decree are:•To determine an Environmental Impact Assessment (EIA) upon every
private and public project or activity, and it must be reviewed by the
Ministry of Environment (MoE), prior to the submission for a decisionfrom the Royal Government;•
To determine the type and size of the proposed project(s) and activities,
including existing and ongoing activities in both private and public prior
to undertaking the process of EIA;•
Encourage public participation in the implementation of EIA process andtake into account of their conceptual input and suggestion for reconsideration prior to the implementation of any project.62
The EIA Sub-Decree applies to all public and private projects or activities in
Cambodia.63 The EIA Sub-Decree identifies the specific project types covered
by EIA. In total these cover four areas: industry, agriculture, tourism andinfrastructure.64 Under each area, there are a number of specific project types
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
60

Cambodian EPNRM Law (1996), Article 6.
Cambodian EPNRM Law (1996), Article 7.
62
Cambodian EIA Sub-decree (1999), Article 1.
63
Cambodian EIA Sub-decree (1999), Article 1.
64
Cambodian EIA Sub-decree (1999), Annex.
61

	
  

34	
  

listed. This list has been attached as an annex to the EIA Sub-Decree. 65
According to the list, the current screening process in Cambodia is projectbased rather than by reference to significant environmental impact.66
The key difference in the Cambodian approach to screening in the EIA process(compared to the other Mekong countries) is that all projects in the screening
list annexed to the Sub-Decree go through an Initial Environmental Impact
Assessment (IEIA) to determine whether an EIA is required. Article 6 provides
that a project owner must conduct an IEIA in accordance with the Annex.67
The project owner is then required to submit the IEIA to the MoE forassessment of the Report68 or to the Provincial EIA Department if the project is
to be determined at the provincial level.69 The Prakas on Delegation of Power in
Decision Making Representing the Ministry for the Investment Plan toProvincial/Municipal Department provides that, for projects with less than US$2
million in investment, the responsibility for reviewing and monitoring isdelegated to the provincial department of environment. 70 However, thesedepartments do not have adequate capacity for effective EIA implementation.
Sub-Decree 146 on Economic Land Concessions (ELC) (2005) also requires
environmental assessment of ELCs. Article 7, Clause 5 of Sub-Decree 146
states that “if the initial environmental and social impact assessment indicates a
medium or high degree of adverse impact, arrange for the conduct of a fullenvironmental and social impact assessment.” 71 In 2014, the Ministry ofAgriculture, Forestry and Fisheries and the Ministry of Environment issued an
Inter-Ministerial Prakas on Strengthening Economic Land Concession
Management.72 This Prakas sought to strengthen the protection for forests andprotected areas. It also required companies to seek permission to clear forest
products from lands subject to an existing ELC.
The EPNRM Law also includes a general provision for public participation andaccess to information. Article 16 of the EPNRM Law provides that the MoE shallencourage public participation in “environmental protection and natural
resources management.”73 Article 17 also requires the MoE to develop a subdecree on public participation and access to information. 74 The MoE has
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
65

Cambodian EIA Sub-decree (1999), Annex.
Cambodian EIA Sub-decree (1999), Annex.
67
Cambodian EIA Sub-decree (1999), Article 6.
68
Cambodian EIA Sub-decree (1999), Article 7.
69
Cambodian EIA Sub-decree (1999), Article 9.
70
Kingdom of Cambodia, Prakas on Delegation of Power in Decision Making Representing the
Ministry for the Investment Plan to Provincial/Municipal Department, No.230 BS.KB (issued 29
July 2005), Articles 2-6, 8 [hereinafter Cambodian Prakas on Delegation (2005)].
71
Kingdom of Cambodia, Sub-decree on Economic Land Concessions, No. 146 ANK/BK (issued
27 Dec. 2005), Article 7.
72
Kingdom of Cambodia, Inter-Ministerial Prakas on Strengthening Economic Land Concession
Management, No. 206 MoE (issued 9 May 2014).
73
Cambodian EPNRM Law (1996), Article 16.
74
Cambodian EPNRM Law (1996), Article 17.
66

	
  

35	
  

developed a Prakas on preparing an EIA report, which includes more detailed
requirements on public participation.75
Environmental Protection and Natural Resource Management Law(1996)
CHAPTER VII: PUBLIC PARTICIPATION AND ACCESS TO INFORMATION
Article 16:
The Ministry of Environment shall, following proposals of the public, provide
information on its activities, and shall encourage participation of the public in
the environmental protection and natural resource management.76
Article 17:
Procedure for participation of the public and access to information pertaining
to the environmental protection and management of the natural resources,
shall be determined by a Sub-Decree following a proposal of the Ministry ofEnvironment.77
Article 18:
Information related to environmental protection and natural resource
management shall be mutually disseminated between the Ministry ofEnvironment and other ministries.78
With respect to public participation, public involvement is “encourage[d]” in the
EIA Sub-Decree but no concrete requirements are stipulated.79 Additionally, the
Sub-Decree contains no requirements for consideration of alternatives orinformation disclosure. 80 These have been further outlined in the relevant
Prakas. The existing Prakas provide for NGOs to be represented at multistakeholder meetings to review the EIA and IEE lodged with the Ministry or theProvincial Department of Environment.81
Article 20 of the Law on Mineral Resources Management and Exploitation
authorizes the Minister to release information on environmental and social
issues to the public.82
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
75

Kingdom of Cambodia, Prakas on General Guidelines for Initial and Final Environmental
Impact Assessment Reports, No. 376 BRK.BST (issued 2009) [hereinafter Cambodian EIA
Guidelines Prakas (2009)].
76
Cambodian EPNRM Law (1996), Article 16.
77
Cambodian EPNRM Law (1996), Article 17.
78
Cambodian EPNRM Law (1996), Article 18.
79
Cambodian EIA Sub-decree (1999), Article 1.
80
See Cambodian EIA Sub-decree (1999).
81
Cambodian EIA Prakas (2009).
82
Kingdom of Cambodia, Law on Mineral Resources Management and Exploitation, Preah
Reach Kram NS/RKM/0701/09 (enacted 13 July 2001), Article 20, available at:
http://www.cambodiainvestment.gov.kh/law-on-mineral-resource-management-andexploitation_010713.html.

	
  

36	
  

The Law on Forestry (2002) requires details of an EIA to be made available forpublic comment and requires public participation in “any government decision”
that might impact forests.83
Law on Forestry (2002)
Article 4:This law shall be implemented to ensure public participation in any
government decision that has the potential for heavy impact on concerned
general citizens, livelihoods of local communities and forest resources of theKingdom of Cambodia.
Consistent with the Cambodian code of forest management and theEnvironmental Protection and Natural Resources Law, an Environmental andSocial Impact Assessment shall be prepared for any major forest ecosystem
related activity that may cause adverse impact on society and environment.
Document of the Environmental and Social Impact Assessment shall be madeavailable for public comment.
Any final decisions by the Royal Government on major forest ecosystems
related activities must consider the recommendations of the final
Environmental and Social Impact Assessment. The Royal Government canpublicly notice any final decisions under this article.84
Public participation is also required under other provisions of the Law on
Forestry (2002):
Law on Forestry (2002)
Article 6:
The Forestry Administration shall perform its duties in a manner consistent
with principles of transparency, thereby ensuring the right of the public toparticipate in decisions regarding the management, sustainable use andconservation of the forests.85

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
83

Kingdom of Cambodia, Law on Forestry, Preah Reach Kram NS/RKM/0802/016 (adopted 31
Aug. 2002), Article 4, available at: http://www.cambodiainvestment.gov.kh/law-onforestry_020930.html [hereinafter Cambodian Forestry Law (2002)].
Article 4.
84
Cambodian Forestry Law (2002), Article 4.
85
Cambodian Forestry Law (2002), Article 6.

	
  

37	
  

Prakas (Declaration) on General Guidelines for Conducting Initial and Full
Environmental Impact Assessment Reports states:
Prakas on General Guidelines for Conducting
Environmental Impact Assessment Reports (2009)

Initialand

Full

Article 11:
Review comments at multi-stakeholder meeting chaired by the Minister of
Ministry of Environment with representation from relevant government
ministries/ agencies, local authorities, non-governmental organizations, andother stakeholders concerned with the investment project (within 5 workingdays).86
The same Prakas states:
Prakas on General Guidelines for Conducting
Environmental Impact Assessment Reports (2009)

Initialand

Full

Article 12:
Review Comments at multi-stakeholder meeting chaired by the Director ofprovincial Department of Environment with representation from relevant
provincial departments/agencies, local authorities, non-governmentalorganizations, and other stakeholders concerned with the investment project(within 5 working days).87
The MoE is currently developing a Prakas on public participation in EIA. The
draft of this Prakas and attached Guidelines were released for public comment
in July 2016. The Prakas and Guidelines are due to be finalised by the end of
2016.

Fees and charges	  The Joint Prakas (Declaration) on Public Service Charge of the Ministry ofEnvironment 88 provides for a list of Public Service Charges. It provides forService Charge, Duration of Service Providing and validity according to thetypes of Public Service as stipulated in the Annex.

Procedure for IEIA and EIA	  Cambodia adopts the following steps in the IEIA/EIA process:1. Project screening;
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
86

Cambodian EIA Guidelines Prakas (2009), Article 11.
Cambodian EIA Guidelines Prakas (2009), Article 12.
88
Joint Prakas on Public Service Charge of the Ministry of Environment, No. 999, (issued 28
Dec. 2012).
87

	
  

38	
  

2.
3.
4.
5.
6.
7.

Project scoping;
Preparation of the EIA Report and EMP;
Reviewing and assessment of EIA report;
Approval or Refusal of EIA Report;
Construction, operation; andProject monitoring, compliance and enforcement.89

Under the Sub-Decree on EIA, the project owner submits the IEIA to the MoE
for screening consideration.90 The MoE will determine whether the project will
require an EIA or if the IEIA is sufficient. The MoE must also determine if aproject requires an EIA within 30 days.
The MoE is to review and provide recommendations on the IEIA or the EIA tothe competent organization.91 If the MoE does not respond to the findings andrecommendations within a 30-day period, the Project Approval
Ministry/Institution will assume that the revised IEIA or EIA report has compliedwith the criteria of this Sub-Decree.92
Sub-Decree on Environmental Impact Assessment (1999)
Article 18:
If the Ministry of Environment fails to respond its findings andrecommendations as described in Article 15 and 17, the Project Approval
Ministry/Institution will assume that the revised IEIA or EIA report hascomplied with the criteria of this Sub-Decree.93
The EIA Sub-Decree provides for 30 days as the timing for the processing an
EIA and responding to the project proponent and relevant ministry. 94 The
project owner must acknowledge the findings and recommendations of its
IEIA/EIA Report(s) that have been approved by the MoE, before it can proceedwith project implementation.95
The MoE has developed a Prakas to assist in the preparation of IEIA and EIA
and also for the establishment of the process for reviewing and commenting on
EIA Reports.

Preparation of EIA/IEIA Report	  The Prakas on General Guidelines for Conducting Initial and Full Environmental
Impact Assessment Report (2009) provides general guidelines on the
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
89

See generally, Cambodian EIA Sub-decree (1999).
Cambodian EIA Sub-decree (1999), Articles 6-7.
91
Cambodian EIA Sub-decree (1999), Article 15.
92
Cambodian EIA Sub-decree (1999), Article 18.
93
Cambodian EIA Sub-decree (1999), Article 18.
94
Cambodian EIA Sub-decree (1999), Article 17.
95
Cambodian EIA Sub-decree (1999), Article 20.
90

	
  

39	
  

development of IEIAs and full EIAs. 96 The Prakas also includes a general
guideline on the content of an IEIA or EIA Report and a checklist for scoping
adverse impacts and mitigation measures. The Prakas also provides somedefinitions for the EIA process.
Under the 2005 Prakas on delegation, approval for project of less than US$2
million has been delegated to the Provincial Departments of the Environment.97
The EIA process is similar irrespective of whether a project is assessed atnational level or at sub-national level.
One of the key features of the EIA system in Cambodia is that the screening list
identifies all projects that are required to carry out IEIA. Once the project
proponent has conducted the screening process, the Ministry will determine
whether an EIA is required or whether the IEIA will be sufficient.
The EIA Department of the MoE (or the relevant provincial department) will
also be required to carry out a site visit, with includes the opportunity for publiccomment within the screening process.
Article 7:
The Department of Environmental Impact Assessment Monitoring and Review
or concerned Provincial Departments of Environment shall make visit to andcomment on the project site as stated in Article 2 and 3 above whether an
IEIA or full EIA report is needed.
Article 9:
The Department of Environmental Impact Assessment Monitoring and Review
or concerned Provincial Departments of Environment shall review andcomment on the IEIA or full EIA report following the general guidelines.

Assessment of IEIA/EIA Report	
  Under the 2009 Prakas, once an IEIA or EIA is submitted to the Ministry it must
be assessed within 30 days. Within this timeframe, there is a requirement for asite visit and consultation with PAP and other stakeholders.
The MoE has established a review process for IEIA/EIA Reports. This a twostage review process. First, by the EIA Coordination Working Group (EIACWG),
which has the MoE providing initial assessments. This is followed by an interMinisterial Review process. The Decision on the Composition and Duty Revisionof the EIA Condition Working Group (EIACWG) (2015) established the EIACWG
for the review and consideration of IEIA and EIA Reports for investment
projects.98
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
96

Cambodian EIA Guidelines Prakas (2009), Article 1.
Cambodian Prakas on Delegation (2005).
98
Kingdom of Cambodia, Decision on the Composition and Duty Revision of the EIA Condition
Working Group, No. 013 (issued 2015) [hereinafter Cambodian Decision on EIACWG (2015)].
97

	
  

40	
  

Decision on the Composition and Duty Revision of EIA Condition Working
Group No. 013 (2015)
Article 2:
EIACWG has duties as follows:•
Examine and decide on EIACWG internal regulation;•
Examine and comment on reports of Environmental and Social Impact
Assessment (ESIA) of proposed project and other existing andprocessing private or public development activities by depending on the
result from examination and initial comment from Department of EIA;•
Decide on report of Initial Environmental and Social Impact Assessment(IESA);•
Report to the Minister of the Ministry of Environment on result of themeeting of giving comment on reports of Environmental and Social
Impact Assessment.99
Article 3:
Department of EIA is the Secretariat of EIACWG and has duties as follow:•
Prepare internal regulation of EIACWG;•
Coordinate and provide administrative and technical protections inaccordance with regulations in force;•
Prepare meeting minutes of EIACWG of both the internal ministerial andInter-Ministerial Skills;•
Prepare meeting reports of EIACWG of both the internal ministerial andInter-Ministerial Skills for the Minister of the Ministry of Environment toexamine and decide in compliance with the administrative procedure;•Prepare inter-ministerial leadership level meeting led by the Minister ofthe Ministry of Environment to examine and decide on reports ofEnvironmental and Social Impact Assessment (ESIA) and this meetingshall comprise of Director, Deputy Director of EIACWG, Skilled Officials
and Ministerial leadership level, relevant Institutions, Municipal/Provincial
Governors or Deputy Governors and Municipal/ Provincial Department ofEnvironment;•
Prepare comment letter on report of ESIA for project owners tomodify.100
This TWG is the body responsible for the assessment and consideration of the
IEIA or EIA reports. The EIACWG is able to ask for written opinions on IEIA or
EIA Reports from other experts including national and international NGOs,
university professors or research institutes (Article 4).
Following this technical review, there is a further multi-stakeholder meetingthat includes other Ministries and relevant stakeholders, during which therecommendations will be considered. Following this meeting, there will be the
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
99

Cambodian Decision on EIACWG (2015), Article 2.
Cambodian Decision on EIACWG (2015), Article 3.

100

	
  

41	
  

final recommendation to the Minister of Environment whether to approve or
reject the IEIA or EIA. There will be an EIA Approval Certificate that will be
issued together with any conditions imposed on the project.

Unofficial Translation by Mr. DANH Serey, EIA Department

Process for EIA clearance for proposals with endorsement from project approval entity/ CDC or by provincial
Investment Sub-committee

30 daysP.O submits AFE
and IEIA/EIA to
MoE/PDEP.O revises IEIA/EIA or
prepare EIA Report

30 daysP.O submits revised
IEIA/ EIA Report to
MoE/PDE

Require revised
IEIA/EIA report
MoE/PDEreviews IEIA/EIA report

Require EIA report

MoE/PDE
Reviews IEIA/EIA
ReportApproval on
IEIA/EIA Report

NOTE:

P.O revises
IEIA/ EIA R.
reportProject
approval
entity/CDC/PISC

RequireRevised IEIA/EIA ReportP.O
carriesout
Project
andEMP

Approval on
Revised IEIA/EIA Report

IEIA: Initial Environmental Impact Assessment

MoE: Ministry of Environment P.O: Project Owner

EIA: Full Environmental Impact Assessment

PISC: Provincial Investment Sub-committee

CDC: Council for Development of Cambodia

PDE: Provincial Department of Environment

EMP: Environmental Management Plan

AFE: Application Form of Environment-6-

Flow chart for EIA Process from Prakas on General Guidelines (2009)

Compliance and Enforcement
Penalties for breach of the EIA process	  Both the EPNRM Law and the Sub-Decree on EIA provide for the imposition ofpenalties for the failure to comply with the environmental protection laws of
Cambodia. The EPNRM Law enables the MoE to issue a written order torequire corrective action for any behaviour that is in breach of the law. In
addition, the MoE could also issue an order to stop any activities until theoffence is corrected and may order the clean up of pollution.101
It is unclear if any such orders have been issued. The MoE is not required tomaintain a register of any orders or a list of any complaints that have beenbrought to the attention of the MoE.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
101

	
  

Cambodian EPNRM Law (1996), Articles 20-25.

42	
  Law on Environmental Protection and Natural Resource Management(1996)
CHAPTER IX: PENALTIESArticle 20:
Any person who violates the rule of the Ministry of Environment as stated in
the article 14 of this law, this Ministry shall issue a written order requiring such
person to:•
Correct his/he/its offending activities immediately or within a specified
period; or•Stop his/her/its activities, until the offence is corrected; or•Clean up immediately the pollution.102
The Sub-Decree on EIA specifies penalties for the failure to comply with theprovision of the Sub-Decree.
Sub-Decree on Environmental Impact Assessment (1999)
CHAPTER 7: PENALTIESArticle 29:
A Project Owner/Responsible Person, who fails to submit their EIA report orprovides false information or misconduct the EMP, as described in their EIA
report, or violates any provisions in this Sub-Decree, will be an offence under
Cambodian law, as stated in Article 20/21/22/23 and 25 of Chapter 5 of the
Law on Environmental Protection and Natural Resources Management.103
Article 30:
The MoE duly has a responsibility to compile a report and complaint against
any Project Owner/Responsible Person who has been offended or breached
any articles described in this Sub-Decree.104
Article 31:
Any environment official, who has neglected, lacked vigilance or breached the
MoE's regulations, or conspires with perpetrator or assists this activity, mustbe subject to administrative offense or face prosecution before the court oflaw.105
It is not clear if any enforcement action has ever been commenced under the
EPNRM Law or the EIA Sub-Decree. As note above, there is no requirement for
the MoE to maintain a register of enforcement actions taken or orders issued.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
102

Cambodian EPNRM Law (1996), Article 20.
Cambodian EIA Sub-decree (1999), Article 29.
104
Cambodian EIA Sub-decree (1999), Article 30.
105
Cambodian EIA Sub-decree (1999), Article 31.
103

	
  

43	
  

Monitoring and Compliance	  The responsibility for follow-up and compliance and enforcement is also sharedunder the Prakas depending on which body approved the project.
Article 14:
The Department of Environmental Impact Assessment Monitoring and Review
or provincial Department of Environment shall be responsible for follow-up,
monitoring and taking appropriate measures to ensure compliance by the
project owner of the Environmental Management Plan (EMP) during project
construction, operation and closure as stated in the IEIA or EIA reportapproved by the Ministry of Environment or provincial Department ofEnvironment.
Additional provisions for monitoring, record keeping and inspections are also
found in the EPNRM Law.
Law on Environmental Protection and Natural Resource Management(1996)
CHAPTER VI: MONITORING, RECORD KEEPING, AND INSPECTION
Article 14:
The Ministry of Environment shall collaborate with the concerned ministries
to require the owners or responsible of the factories, pollution sources,industrial zones or those zones which have natural resource development
activities to: - install or use of monitoring equipment, - provide samples; prepare or keep files and submit records and reports for examination.106
Article 15:
In order to carry out its duty and take responsibility on the National Protected
Areas, the Ministry of Environment, in collaboration with the concerned
ministries, may enter to inspect on site in the areas, premises, buildings, or anymeans of transportation or place, etc...in case when it is found out by the
Ministry of Environment that these sources cause affects to quality of theenvironment. Inspectors of the Ministry of Environment and officials ofconcerned ministries which are collaborating, shall present their identity cards
and mission orders, before conducting an inspection. During the inspection,
when found out that there is any criminal offence, the inspectors shall report
it immediately to the competent institution to take action according to thelaw.107

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
106
107

	
  

Cambodian EPNRM Law (1996), Article 14.
Cambodian EPNRM Law (1996), Article 15.

44	
  The People’s Republic of China
Introduction
The EIA system in China is based on the Environmental Impact Assessment Law(2002) (EIA Law). EIA was first introduced in China in the late 1970s.108 The EIA
Law was most recently revised in 2016.109 The most significant amendment
removed the requirement that EIA approval needed to be granted prior to theproject proponent applying for other approvals. There is still a requirement that
all EIA assessments and approvals are required prior to the construction of the
project. There is some concern that such a parallel process will diminish theimportance of EIA.110
•
•
•
•

•

Environmental Protection Act (1989, revised in 2014)
Environmental Impact Assessment Law (2002, revised in 2016)
Regulation on Environmental Impact Assessment of Planning (2009)(Order of the State Council No. 559)
Measures on Open Environmental Information for Trial Implementation(2007) (Order of the State Environmental Protection Administration No.
35)
Interim Measures for Public Participation in Environmental Impact
Assessment (Huan Fa [2006] No. 28)

The Constitution includes an obligation to protect the environment.
Constitution of the People’s Republic of China (1982, revised 2004)
Article 26:
The State protects and improves the environment in which people live andthe ecological environment. It prevents and controls pollution and other publichazards.
The State organizes and encourages afforestation and the protection offorests.111
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
108

Environmental Impact Assessment in China, Edited Tan Zhu and Kin-Che Lam, ResearchCenter for Strategic Environmental Assessment, Nankai University, China and Centre ofStrategic Environmental Assessment for China, The Chinese University of Hong Kong, 2009, p.1
109
People’s Republic of China, Environmental Impact Assessment Law of the People's Republicof China (initially adopted 28 Oct. 2002; revised 2016), 2002 version available at:
http://api.commissiemer.nl/docs/os/sea/legislation/china_s_ea_legislation_03.pdf [hereinafter
Chinese EIA Law (2002, revised 2016)].
110
Zhang Chun, Has China’s impact assessment law lost its teeth?, China Dialogue, 20 July 2016,
https://www.chinadialogue.net/blog/9122-Has-China-s-impact-assessment-law-lost-its-teeth/en.
111
People’s Republic of China, Constitution of the People’s Republic of China (promulgated 4
Dec. 1982, revised 2004), Article 26, available at:
http://www.npc.gov.cn/englishnpc/Constitution/node_2825.htm.

	
  

45	
  

The Appraisal Center for Environment and Engineering (ACEE) was establishedin 1992 under the authority of the State Environmental Protection Authority. It
has a number of key responsibilities including the technical review of EIA
documents, training of EIA staff, research on policies relating to EIA andinvestigation of construction projects with potential environmental impacts.
The Environmental Protection Act (1989) (EP Act) was significantly revised in
2014.112 In particular, the 2014 amendments strengthened the role of EIA inenvironmental protection.
Environmental Protection Act (1989, revised 2014)
Article 19:
Compilation of draft development plans and construction of projects withenvironmental impacts shall be subject to environmental impact assessment inaccordance with the law.
Development plans without environmental impact assessment developed inaccordance with the law are prohibited to be implemented. Construction
projects without environmental impact assessment developed in accordancewith the law shall not commence to construct.113
Article 41:
Installations for the prevention and control of pollution at a construction
project must be designed, built and commissioned together with the principal
part of the project. Installations of the pollution prevention and control facility
shall comply with the requirements of the approved environmental impact
assessment report, and shall not be dismantled or left idle withoutauthorization.114
This principle, also known as the “Three Synchronizations” (or “Three
Simultaneities”), requires that “pollution prevention and control facilities shallbe designed, built and put to use simultaneously with design, construction andinauguration of a construction project.”115
The EP Act also requires companies to taken measures to reduce pollution andemissions and to establish pollutants inventories and staff responsibilities forpollution control, including the keeping of records.116
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
112

People’s Republic of China, Environmental Protection Law of the People's Republic of China(adopted 26 Dec. 1989, revised 2014), available at:
http://www.china.org.cn/english/environment/34356.htm [hereinafter Chinese EP Act (1989,
revised 2014)].
113
Chinese EP Act (1989, revised 2014), Article 19.
114
Chinese EP Act (1989, revised 2014), Article 41.
115
The People’s Republic of China’s Environmental Impact Assessment Framework, Key Laws,
Regulations, Standards and Guidelines, American Friends Service Committee, 2014.
116
Chinese EP Act (1989, revised 2014), Article 42.

	
  

46	
  

Recent amendments also provide for the adoption of a “total emission control
system for key pollutants.”117 If the total key pollutants exceed the relevant
quota or control EIA, approvals for new constructions may be suspended.
Environmental Protection Act (1989, revised 2014)
Article 44:
For regions that fail to fulfill the total emission control quota or achieve theenvironmental quality targets assigned by the State, environmental
departments at or above provincial level governments shall suspend the EIA
approval for their new construction projects that may cause increase of thetotal key pollutants emission in the region.118
In addition, the 2014 amendments also make clear provision for construction
projects that commence without the necessary EIA approvals. This is asignificant change from the previous law.
Environmental Protection Act (1989, revised 2014)
Article 61:
For construction projects that proceed to commence the construction of the
projects prior to submitting EIA reports or having such reports approved,
competent government departments with environmental protection
supervision responsibility shall order them to stop the construction, impose
fine penalty, and may require restoration of the construction sites.119
Other laws provide specific requirements for EIA in the event of particulartriggers, such as impact on wildlife and ecological areas.
Law of the People's Republic of China on the Protection of Wildlife (1988,
revised 2004, amended 2016)
Article 13:
The people's government at the county level and above shall, when drawing up
plans relating to exploitation and utilisation, give due consideration to theprotection of wildlife and their habitats; shall analyse, calculate and evaluate all
potential impacts that implementation of these plans may have on protection
and wildlife and their habitats; and shall avoid or reduce adverse impacts that
could result from the implementation of these plans.
Construction projects that are not permitted by construction laws andregulations shall be prohibited in nature reserves. The selection of sites and
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
117

Chinese EP Act (1989, revised 2014), Article 44.
Chinese EP Act (1989, revised 2014), Article 44.
119
Chinese EP Act (1989, revised 2014), Article 61.
118

	
  

47	
  

routes for construction projects such as airports, railways, roads, irrigation andhydroelectricity projects, cofferdams and land reclamation shall avoid nature
reserve and other protected areas and wildlife migration routes. If they cannot
be avoided, infrastructure to allow for wildlife migration shall be constructed,
such as tunnels and fish passes, to eliminate or reduce adverse impacts on
wildlife.120
When the departments that examine and approve environmental impact
assessment documents are examining and approving environmental impact
assessment documents relating to construction projects that may impact uponnature reserves or other protected areas or wildlife migration routes, they shallseek the opinion of wildlife protection departments under the State Council if
wildlife under special national protection may be affected, and shall seek theopinion of wildlife protection departments under the governments ofprovinces, autonomous regions or municipalities if wildlife under special local
protection may be affected.
Article 14:
Departments of wildlife protection at various levels shall keep watch on andmonitor the impact of the environment on wildlife. When the environmental
impact causes harm to wildlife, the department of wildlife protection shallconduct an investigation and deal with the matter jointly with the departments
concerned.121

Law of the People's Republic of China on the Prevention and Control ofAtmospheric Pollution (1995, amended 2000, revised 2015)
CHAPTER III: SUPERVISIONS AND ADMINISTRATION OF AIR POLLUTION
PREVENTION AND CONTROL
Article 18:
Enterprises, institutions and other producers and operators shall make anenvironmental impact assessment, following the law, when constructing a
project that can affect the atmospheric environment, and publish its
assessment documents. Units that discharge pollutants into the atmosphereshall meet air pollutants emission standards, and comply with key atmosphericpollutant total amount control requirements.122

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
120

People’s Republic of China, Law of the People's Republic of China on the Protection of
Wildlife (adopted 8 Nov. 1988, most recently revised 2 July 2016), Article 13, available at:
http://chinalawtranslate.com/2016wildlifeprotection/?lang=en [hereinafter Chinese Wildlife
Protection Law (1988, revised 2016)].
121
Chinese Wildlife Protection Law (1988, revised 2016), Article 14.
122
People’s Republic of China, Law of the People's Republic of China on the Prevention andControl of Atmospheric Pollution (adopted 29 Aug. 1995, most recently revised 29 Aug. 2015),
Article 18, available at: http://www.china.org.cn/english/environment/34422.htm [hereinafter
Chinese PCAP Law (1995, revised 2015)].

	
  

48	
  

Article 19:
Enterprises, institutions and operational entities with centralized heating
facilities, and those that discharge industrial waste gases, or toxic andhazardous air pollutants as stipulated in Article 78 as well as other entities
pursuant to pollution administrative permit system according to law, shall apply
for a pollutant discharge permit. The State Council shall determine theapplication process and concrete implementation procedures.123

Procedure for EIA	  The Law on Environmental Impact Assessment (2002) (EIA Law) outlines the
mandatory requirements for construction projects and plans to undertake
environmental impact.124 EIA is required to be integrated into the constructionof the project.
Law on Environmental Impact Assessment (2002, revised 2016)
Article 4:
The appraisals of the environmental impacts shall be objective, open andimpartial, and shall take the impacts imposed upon the various environmental
factors and the corresponding ecosystem by the programs or construction
project after they are carried out so as to provide a scientific basis for
decision-making.125
Chapter III of the EIA Law sets out the procedures for the EIA with respect toprojects. 126 The construction unit is to prepare the relevant environmental
impact form depending on the estimate level of potential environmental impactof the construction project.
Law on Environmental Impact Assessment (2002, revised 2016)
Article 16:
The state shall execute classified administration on EIAs for construction
projects according to different degrees of environmental impacts of theconstruction projects.
The construction unit shall prepare an EIA report, environmental impact form
(hereafter termed EIFs) or fill in environmental impact registration table(hereafter generally called EIA document) in accordance with the following
stipulations:
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
123

Chinese PCAP Law (1995, revised 2015), Article 19.
Chinese EIA Law (2002, revised 2016).
125
Chinese EIA Law (2002, revised 2016), Article 4.
126
Chinese EIA Law (2002, revised 2016), Chapter III.
124

	
  

49	
  

(1) Preparing an EIA report for construction projects possibly withsignificant environmental impacts, to perform a comprehensive
assessment for the environmental impacts;(2) Preparing EIF for construction projects possibly with slightenvironmental impacts, to perform analysis or specific assessment for
the environmental impacts; and(3) Filling in environmental impact registration table for construction
projects possibly with very small environmental impacts and notneeding an EIA.127
There are three categories of potential environmental impact:• Category A (Major): projects which are likely to cause a range ofsignificant adverse environmental impacts need to produce a full EIA andsubmit a full EIA report (EIR). An EIA outline may be prepared by the
consultant and submitted to the approval authority prior to preparationof a full EIA but is not mandatory;• Category B (Light): projects which are likely cause to a limited numberof significant adverse environmental impacts, they need to conduct a
limited EIA and submit a limited Environmental Impact Form (EIF);• Category C (De minimis): projects not expected to cause significant
adverse environmental impacts do not require EIA, but still should fill in
an Environmental Impact Registration Form. Proponents in this category
fill in an Environmental Impact.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
127

	
  

Chinese EIA Law (2002, revised 2016), Article 16.

50	
  The above chart is a simplified system of EIA in China (ADB, 2011).128
The content of the starting document shall be the following:• Briefing on the proposed projects, including location, investment, projectfeatures, etc.;• Environmental baseline of the project location and surrounding area;• Potential environmental impacts brought about the project in study;• Measures for preventing and mitigating the adverse environmental
impacts; and• Environmental management plan involving pollution control facilities andinvestments.129
The EIA documentation is subject to public consultation and consideration and
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
128

Asian Development Bank, Environmental Impact Assessment: People’s Republic of China:
Hunan Xiangjiang Inland Waterway Project, Project Number: 43031 (July 2011), p.3, available
at: https://www.adb.org/sites/default/files/project-document/74202/43031-013-prc-eia.pdf.
129
Chinese EIA Law (2002, revised 2016), Article 17.

	
  

51	
  

is then submitted to the relevant EBP (at a local, city or provincial level) for
assessment and review. If approved, it can be subject to relevant conditions
including requirements to comply with relevant EMP and emission guidelines.
In addition, China has extensive Environmental Quality Standards for air, waterand soil. The construction project must comply with these standards.
Under the Provisions of the State Environmental Protection Administration on
the Examination and Approval Procedure of EIA on Construction Projects(2005), 130 the approval of a construction project may only occur if theconstruction project complies with the relevant laws, regulations and standards.
Provisions of the State Environmental Protection Administration on the
Examination and Approval Procedure of EIA on Construction Projects(2005)
Chapter 4. Approval
Article 14:
Regarding the construction project which complies with the conditions listed
in Article 12 of these Provisions and is passed after examination, the SEPA
shall make a decision to approve it, and shall notify the construction unit in
writing.
Regarding the construction project which does not comply with the abovesaid conditions, the SEPA shall make a disapproval decision, and notify theconstruction unit in writing with the reasons thereof stated.131
The EIA system in China is subject to a number of laws relating to theclassification of projects and technical guidelines for specific sectors.
• Classification Catalogue of Construction Projects Environmental Impact
Assessment (2015 Revision);• Measures for the Administration of Construction Projects Environmental
Impact Assessment (2015 Revision)-Annex 1 to 6; and• Technical guidelines for environmental impact assessment -Generalprogramme, HJ 2.1-2011, Chapter 8 (issues in 1993, revised in 2011) by
Ministry of Environmental Protection.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
130

People’s Republic of China, Provisions of the State Environmental Protection Administrationon the Examination and Approval Procedure of EIA on Construction Projects (promulgated 23
Nov. 2005) [hereinafter Chinese Provisions on EIA on Construction Projects (2005)].
131
Chinese Provisions on EIA on Construction Projects (2005), Article 14.

	
  

52	
  

Public Participation	
  Public participation is required under the EIA Law:
Law on Environmental Impact Assessment (2002, revised 2016)
Article 21:
Except for those that are confidential as the state stipulates, for theconstruction projects that have potential significant environmental impacts
and shall prepare EIA reports, the construction units shall hold expert
meetings and public hearings or in other forms to solicit comments andsuggestions of relevant units, experts and the public, before submitting the
EIA reports for approval.
The EIA reports submitted by construction units for approval shall specify adescription on having adopted or not adopted the comments and suggestionsof relevant units, experts and the public.132
It was only in 2015 that the full versions of EIA were available for download on
the relevant website of the local or provincial Environmental Protection Bureau.
Prior to 2015, only the executive summary was available for public inspection.
The new procedure for public access to EIA is more in accord with theprovisions of the EP Act.133
Environmental Protection Act (1989, revised 2014)
Article 56:
The project owner of a construction project for which an environmental
impact report should be prepared pursuant to the law shall explain relevant
situations to the potentially-affected public when preparing the environmental
impact report, and solicit public opinions.
The competent department that is responsible for the examination andapproval of environmental impact assessment documents for theconstruction project shall make public the full text of environmental impact
reports of the construction project upon receipt thereof with exception ofcommercial secrets and confidential circumstances as specified by the State.
In the case of a construction project failing to solicit sufficient publiccomments, they shall request the project to fulfill the task.134

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
132

Chinese EIA Law (2002, revised 2016), Article 21.
Chinese EP Act (1989, revised 2014), Chapter V: Information Disclosure and Public
Participation, Articles 53, 56.
134
Chinese EP Act (1989, revised 2014), Article 56.
133

	
  

53	
  

Under the Interim Measures for Public Participation in Environmental Impact
Assessment (2006),135 the agency conducting the EIA is required to solicit input
from affected communities and other relevant organizations.
Interim Measures for Public Participation in Environmental Impact
Assessment (2006)
Article 3:
These Measures shall apply to the solicitation of public opinions conducted bycompetent administrative departments of environmental protection in theexamination and approval or reexamination of environmental impact reportsof construction projects.136
Article 4:
The State encourages public participation in EIA activities.
The principle of openness, equality, extensiveness and convenience shall be
put into practice throughout public participation activities.137
The EIA Report is also required to include details of the submissions received
during the EIA investigation process. This period of public solicitation is to beavailable for a minimum of 10 days.138
Interim Measures for Public Participation in Environmental Impact
Assessment (2006)
Article 17:
Construction entities or EIA agencies entrusted thereby shall pay serious
attention to opinions of the public, and attach an explanation of the reasons
why certain public opinions are adopted or not adopted in the environmental
impact report.139
It is clearly the aim of the Interim Measures for Public Participation, reinforced
by Article 21 of the EIA Law, that there is to be an assessment and analysis of
the comments received from the public. These comments are then meant to beaddressed by the EIA agency.140 Conflicting submissions and comments aremeant to be addressed.
The Interim Measures for Public Participation also provide for a minimum
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
135

People’s Republic of China, Interim Measures for Public Participation in Environmental
Impact Assessment (adopted 22 Feb. 2006) [hereinafter Chinese Interim Measures for EIA
Public Participation (2006)].
136
Chinese Interim Measures for EIA Public Participation (2006), Article 3.
137
Chinese Interim Measures for EIA Public Participation (2006), Article 4.
138
Chinese Interim Measures for EIA Public Participation (2006), Article 12.
139
Chinese Interim Measures for EIA Public Participation (2006), Article 17.
140
See Chinese EIA Law (2002, revised 2016), Article 21; Chinese Interim Measures for EIA
Public Participation (2006).

	
  

54	
  

period of seven days notice prior to the holding of meetings or other activities
to obtain information and data from the public. However, the opportunity toparticipate is also limited in accordance with Article 25.141 Organisations andindividuals appearing as Observers are not allowed to speak or comment atthese meetings, but may submit written requests and comments.
Interim Measures for Public Participation in Environmental Impact
Assessment (2006)
Article 25:
Citizens, legal persons or other organizations that wish to participate in ahearing shall file an application in accordance with the requirements andmethods specified in the public announcement of the hearing, and at thesame time, present the key points of their own opinions.
Hearing Organizers shall select representatives to participate in the hearing
among all applicants in accordance with the provisions of Article 15 of these
Measures, and notify the representatives so selected five (5) days prior to thehearing.142
The limitations on the public hearing process in EIA in China has been thesubject of some adverse comment and the process is undergoing changes in
the manner and substance.143

Compliance and Enforcement	  There are seven articles in EIA Law to regulate the legal liabilities of illegal andunlawful acts during the implement of EIA,144 including:• The legal liability of the institution compiling the plan145;• The legal liability of the institution reviewing and approving the plan146;• The legal liability of the construction entities147;• The legal liability of the institution reviewing and approving theconstruction project148;• The legal liability of the institution performing Project EIA149;• The legal liability for illegal charging of fees by the departments
responsible for the preliminary examination, inspection, and examination
and approval of the EIA documents150;
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
141

Chinese Interim Measures for EIA Public Participation (2006), Article 25.
Chinese Interim Measures for EIA Public Participation (2006), Article 25.
143
See for example, “Weaknesses of Public Participation in the EIA Process in China”, a report
prepared by the Chinese Academy for Environmental Planning (CAEP) and revised by theEuropean Academy (EURAC), June 2013.
144
Tan Zhu and Kin-Che Lam, 2009, p.28.
145
Chinese EIA Law (2002, revised 2016), Article 29.
146
Chinese EIA Law (2002, revised 2016), Article 30.
147
Chinese EIA Law (2002, revised 2016), Article 31.
148
Chinese EIA Law (2002, revised 2016), Article 32.
149
Chinese EIA Law (2002, revised 2016), Article 33.
150
Chinese EIA Law (2002, revised 2016), Article 34.
142

	
  

55	
  

•

The legal liability of the administrative departments of environmental
protection illegally approving Project EIA.151

The Provision on the Graded Examinations and Approval of Environmental
Impact Assessment Documents of Construction Projects (2009) provides thatdifferent levels of Environmental Protection Bureaus (EPBs) will be responsible
for examining and approving EIA Reports.152
Provision on the Graded Examinations and Approval of Environmental
Impact Assessment Documents of Construction Projects (2009)
Article 5:
The competent department of environmental protection under the StateCouncil is responsible for approving the EIA documents of the following
construction projects:(1) Construction projects of nuclear facilities or confidential projects;(2) Trans-province, autonomous region, or municipal city construction
projects;(3) Construction projects subject to examination and approval by theState Council or by the relevant department authorized by the StateCouncil. The relevant department of the State Council should record
the construction project with special character that may causesignificant impact on environment.153
Article 8:
The limits of power for examination and approval of the EIA documents ofconstruction projects other than the ones specified in Article 5, should givethe advices on rating approval by the people's governments of provinces
according to the Article 4 and following principles and then submit to people’s
government and report to the ministry of environmental protection.
(1) The EIA documents of projects related to the smelting of nonferrous metal, mining, steel processing, calcium carbide, ferroalloy,
coke, waste incineration, power generation and pulp and others
causing heavy pollution should be approved by provincial competentadministrative department of environmental protection.
(2) The EIA documents of projects related to chemical industry,
papermaking, electroplating, printing and dyeing, brewing,monosodium glutamate, citric acid, enzymes, yeast and others
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
151

Chinese EIA Law (2002, revised 2016), Article 35.
People’s Republic of China, Provision on the Graded Examinations and Approval ofEnvironmental Impact Assessment Documents of Construction Projects (enacted 1 Mar. 2009)[hereinafter Chinese Provision on the Graded Examinations and Approval of EIA Documents(2009)].
153
Chinese Provision on the Graded Examinations and Approval of EIA Documents (2009),
Article 5.
152

	
  

56	
  

causing heavy pollution should be approved by provincial and the citylevel competent administrative department of environmental protection.
(3) The management of rating approval of EIA documents of project
regulated by other laws or regulations should implement inaccordance with the relevant provisions.154
Article 9:
Where the relevant competent administrative departments for environment
protection disagree with each other over the conclusions of EIA of theconstruction project that may cause adverse environmental impacts on transadministrative regions, the EIA documents should be submitted for
examination and approval to their common competent administrative
department for environment protection at the next higher level.155
The same provision also provides that if an EPB exceeds its authority andapproves a project, the decision to approve the project to may be cancelled by
the higher authority EPB or the approving officer may be subject to a fine or
demotion.156

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
154

Chinese Provision on the Graded Examinations and Approval of EIA Documents (2009),
Article 8.
155
Chinese Provision on the Graded Examinations and Approval of EIA Documents (2009),
Article 9.
156
Chinese Provision on the Graded Examinations and Approval of EIA Documents (2009),
Article 10.

	
  

57	
  

Lao People’s Democratic Republic
Introduction	  The Environmental Protection Law (1999) (EPL 1999) established a framework
for management of environmental resources with the objective of conserving
and facilitating the sustainable use of natural resources. This was amended by
the Environmental Protection Law (2012) (EPL 2012).157
The Environmental and Social Impact Assessment (ESIA) Department within
the Ministry of Natural Resources and Environment (MONRE) is responsible foroverseeing the implementation of the EIA process. MONRE issues
environmental compliance certificates (ECCs) for projects that havesuccessfully completed the EIA process and coordinates with line agencies(DPRAs) to carry out follow-up (compliance) monitoring and evaluation. Project
proponents are required to submit regular monitoring reports to MONRE basedon their Environmental Management and Monitoring Plans (EMMPs).158
•
•

•

•

Law on Environmental Protection (Amended) No.29/NA (2012)
Ministerial Instruction on the Process of Environmental Impact
Assessment of the Investment Projects and Activities No /MONRE (17December 2013)
Ministerial Instruction on the Process of Initial Environmental
Examination of the Investment Projects and Activities No 8029/MONRE(17 December 2013)
Process of Environmental and Social Impact Assessment of theInvestment Projects and Activities No 8030/MONRE (17 December
2013)

The Constitution of Lao PDR (2003)
Article 19:
All organisations and citizens must protect the environment and natural
resources: land, underground, forests, fauna, water sources and atmosphere.159
Under the EPL 2012, there is an obligation to protect the environment.160 The
EPL 2012 also includes the requirement to conduct EIA161 and IEE.162
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
157

Lao People’s Democratic Republic, Environmental Protection Law, No. 29/NA (adopted 18
Dec. 2012), available at: http://www.laolandissues.org/wpcontent/uploads/2012/03/Environmental-Protection-Law-2013English.pdf [hereinafter
Laotian EP Law (2012)].
158
Sengdeuane Wayakone and Inoue Makoto, Evaluation of the Environmental Impacts
Assessment (EIA) System in Lao PDR, Journal of Environmental Protection volume 3 (2012), p.
1658.
159
Lao People's Democratic Republic, Constitution of the Lao People's Democratic Republic,
No. 25/NA (adopted 6 May 2003), Article 19, available at:
http://www.refworld.org/docid/3ae6b5221a.html.

	
  

58	
  

There have been a number of changes in the environmental assessment regimein Lao PDR over the past decade. The first EIA regulation was issued in 2000
and upgraded to the Lao PDR Decree of Environmental Impact Assessment(2010) (EIA Decree 2010).163 It prescribes the thematic issues to be covered andthe outputs expected at the different stages of the EIA process (preconstruction, construction, operation and closure stages), and it addresses two
categories of investment projects requiring environmental and social
assessments:• Category 1: Investment projects, which are small or create fewer
impacts on the environment and society, and require initialenvironmental examinations (IEEs); and• Category 2: Large investment projects which are complicated or create
substantial impacts on the environment and society, and require EIAs.
In December 2013, MONRE issued two Ministerial Instructions to implement theprovisions of Articles 21 and 22 of the Law on Environmental Protection(Amended) No.29/NA 2012. These were the Process of Environmental andSocial Impact Assessment of the Investment Projects and Activities No.
8030/MONRE, Ministry of Natural Resources and Environment, 17 December
2013 (Ministerial Instruction on ESIA 2013) and the Ministerial Instruction on theProcess of Initial Environmental Examination of the Investment Projects andActivities No 8029/MONRE, Ministry of Natural Resources and Environment, 17
December 2013. These Decrees maintain the distinction between the IEE andEIA process but separate the processes.
The Ministerial Agreement on the Endorsement and Promulgation of List of
Investment Projects and Activities Requiring for Conducting the Initial
Environmental Examination or Environmental and Social Impact Assessment
2013 lists the types and sizes of projects that are in Category 1 and Category 2.
As an example, hydropower projects over 15 MW require an ESIA. Additionally,an ESIA is required for all projects that include resettlement and compensation(irrespective of type and size) in accordance with the Prime Minister’s Decree
on Compensation and Resettlement of People Affected by Development
Projects No. 192/PM or if the planned project is located in a Socially or
Environmentally Valuable Area such as a National Protected Area or National
Protection Forest.
The Lao PDR Environmental Impact Assessment Guidelines (2012) (EIA
Guidelines 2012) 164 contain detailed provisions for the preparation of EIA
reports in Lao PDR. The Guidelines run to some 140 pages. The EIA Guidelines
2012 were developed by the Ministry of Natural Resources and Environment(MONRE) of the Lao PDR in consultation with line ministry agencies, provincial
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
160

Laotian EP Law (2012), Articles 3, 7.
Laotian EP Law (2012), Articles 17, 22.
162
Laotian EP Law (2012), Article 21.
163
Lao People’s Democratic Republic, Decree of Environmental Impact Assessment, No. 112/PM(issued 16 Feb. 2010).
164
October 2012.
161

	
  

59	
  

governments, project developers and EIA consultants and with technicalassistance from a team of experts from the international consulting company
Grontmij and the Finnish Environment Institute (SYKE).165 The EIA Guidelines
2012 were based on practical experience in preparing and reviewing EIAs in the
Lao PDR as well as in other developing and industrialized countries. These
Guidelines were updated and revised in October 2015. The ESIA Guidelines
2015 are currently in draft form.
The EIA Guidelines 2012 were in line with the Lao PDR EIA Decree 2010 for
Category 2 projects (i.e., those identified as having significant potential impacts[Article 2]), with recent Guidelines issued under the Decree and with otherlegislation and Guidelines in the Lao PDR. The EIA Guidelines are also broadly inaccordance with MONRE Instruction on ESIA 2013 (MONRE ESIA 2013).
The Draft Lao PDR Environmental Impact Assessment Guideline 2015 (Draft
EIA Guideline 2015)166 contains detailed provisions for the preparation of EIA
reports in Lao PDR.
	
  Procedure for EIA	  The EPL 2012 made some amendments to the provision of EIA in Laos andamended a number of definitions.
Environmental Protection Law (2012)
Article 2. Environment (revised):
Environment means any organic and inorganic features existing naturally or
created by mankind and surrounding such as people, animals, plants andothers and the positive and negative interaction and impacts on livelihood,production, existence and expansion of mankind and nature.
Environment consists of social and natural environment.167

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
165

EIA Guidelines 2012, Preface.
October 2012.
167
Laotian EP Law (2012), Article 2.
166

	
  

60	
  

Part II of the EPL 2012 inserted new provisions concerning impact onenvironment.
Environmental Protection Law (2012)
PART II: IMPACT ON ENVIRONMENT
Article 10. Impact on Social Environment (new):An impact on social environment is an adverse impact on human life andhealth, properties and livelihoods, including shelters of people, and on culturaland historical heritages.168
Article 11. Impact on Natural Environment (new):An impact on natural environment is an adverse impact on natural ecologicalfundamentals, natural resources, biodiversity, arable land, water sources,
climate change and natural heritages.169
Under Article 17, IEE and EIA were inserted into a new category ofenvironmental prevention tasks.170 In this Chapter were also inserted provisions
relating to Strategic Environmental Assessment, 171 Initial Environmental
Examination, 172 Environmental Impact Assessment 173 and the Use of Clean
Technology.174
Environmental Protection Law (2012)
Article 21. Initial Environmental Examination (new):IEE is a data examination, exploration and analysis to anticipate possible minor
environmental impacts, while identifying appropriate methods and measures toprevent, avoid or mitigate environmental impacts from investment projects oractivities including considerations of climate change.
IEE shall promote participations by organizations, local concerned authorities
and people, who directly or indirectly affected by the sector’s plan or program.
Process of conducting IEE on investment projects and activities shall comply
with the specific regulations.175

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
168

Laotian EP Law (2012), Article 10.
Laotian EP Law (2012), Article 11.
170
Laotian EP Law (2012), Article 17.
171
Laotian EP Law (2012), Article 19.
172
Laotian EP Law (2012), Article 21.
173
Laotian EP Law (2012), Article 22.
174
Laotian EP Law (2012), Article 24.
175
Laotian EP Law (2012), Article 21.
169

	
  

61	
  

Article 22. Environmental Impact Assessment (revised):
EIA shall be a process of addressing an issue in order to anticipate impacts that
may affect the environment, society and nature, derived from investment
projects or activities, along with considerations related to climate change in Lao
PDR, and development of reports. Apart from reporting, there shall be
development of Environmental Social Management and Monitoring Plans.
Both the report and the plan shall be approved by MONRE prior to functioning
investment projects and activities.
The process of assessing impacts from the investment project and the activity
on the environment, society and nature, shall comply with the specificregulations.176
A new provision was also inserted with respect to public participation.
Environmental Protection Law (2012)
Article 48. Public Participation (new):
An integrated spatial plan, strategic environmental assessment, environmental
action plan, social and natural environmental impact assessment, environmental
management and monitoring plan, pollution control and others, shall be
developed with participations by organizations, local authorities and people,
who are directly or indirectly affected by investment projects or activities.177
Articles 2.14 and 2.15, MONRE ESIA 2013, provide details of public participation
in EIA.
The Draft EIA Guidelines 2015 identify that normal project planning cycle whichruns parallel to the EIA process will generally include the following phases:• Pre-Feasibility;• Feasibility;• Design and procurement;• Pre-construction;• Construction or survey-exploration;• Operation; and• Decommissioning, closure and post-closure.
Lao PDR adopts the following steps in the EIA Process:1. Project screening;
2. Project scoping;
3. Preparation of the ESIA Report and ESMMP;
4. Reviewing and assessment of ESIA Report;
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
176
177

	
  

Laotian EP Law (2012), Article 22.
Laotian EP Law (2012), Article 48.

62	
  

5.
6.
7.

Approval or Refusal of ESIA Report and ESMMP;
Construction and operation and management; andProject monitoring, compliance and enforcement.

During each of these phases, the project proponent is required to undertake
investigation and consultation activities to minimize the environmental andsocial impacts of a project.
The ESIA system in Lao PDR combines the function of ESIA as a decisionmaking tool with its function as an environmental and social licensing or
permitting instrument.
As a decision-making tool, the ESIA system helps MONRE to make a decision as
to whether an ESIA and ESMMP for a proposed project or activity should be:• Approved on the basis of the potential environmental impacts and their
mitigation measures presented in the ESIA Report; or• Substantially revised and resubmitted for renewed review and approval;or• Rejected in case the results from the ESIA studies and the review of
ESIA and ESMMP Report show that the project or activity is likely tocause substantial, unavoidable and un-remedied social or environmental
impacts; or such in case where the project and activity is not consistent
with the National Environmental Policy or Strategic Plan of the Natural
Resources and Environment.
As a permitting instrument, the ESIA system gives MONRE the powers to:• Issue Environmental Compliance Certificates (ECCs) approving the ESIA
and the ESMMP reports. An ECC is mandatory for obtaining an
investment license to construct and operate a project or activity, which islisted in the Ministerial Decision No. 8056/MONRE under Group 2
Projects and Activities;• Enforce compliance with the conditions specified in the Environmental
Compliance Certificate; and• Sanction non-compliances including imposing fines and suspending andrevoking the Environmental Compliance Certificate.178
The Draft EIA Guidelines 2015 provide a detailed overview of EIA process:
EIA is a legal requirement for all projects that may have a significant adverse
impact on the environment and/or society. EIA is therefore a regulatory tool
to identify and minimize adverse environmental and social impacts, and toensure that proper management and mitigation measures are implemented.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
178

	
  

ESIA Guideline, Volume 1, June 2015 (Draft), MONRE, Laos PDR.

63	  

An EIA should consider the environmental issues in all project phases,
including design and procurement, pre-construction, construction, operation,
decommissioning, closure, and post-closure. The EIA helps the project
developer to prepare a project in consideration of its consequences on theenvironment without threatening its technical and economic feasibility.
An EIA should consider all biological, physical, social, economic, health culturaland visual components of the environment that could be affected by aproject. It offers the possibility of analyzing and defining the relations andinteractions between the factors having an influence on the ecosystems,
resources and quality of life of the population and communities.179
The Draft EIA Guidelines 2015 contain detailed definitions to assist in theimplementation of EIA:Best Practices mean practices to which the project developer will commit,
which are not yet required by applicable laws, but are nonetheless arerecognized by a consensus of relevant stakeholders, including government,
industry, labor, financial institutions and academia as being practices whichhave been adopted by leading, reputable companies of international standing
and which, when carried out by the project developer, can be expected tofurther to reduce the adverse impacts arising from the project and activities
related thereto.
The Definitions also include references to public participation:
Involvement means the process of consulting and disseminating information
on an investment project to gather comments from people or groups who arelikely to be affected by, gain benefits from, or have an interest in the project.
The comments are to be used as references in preparing and deliberating on
an initial environmental examination (IEE), environmental impact assessment(EIA) report, or environmental and social management and monitoring plan
(ESMMP). Involvement can take the form of meetings with stakeholders at alllevels, or with those who are likely to be affected by the investment project
during all phases of the project.
Project Affected People means a natural person, legal entity, or organizationthat is directly or indirectly affected, or likely to be affected, by the investment
project. The people may be affected by legal expropriation of land or realestate, changes of land category, and impacts on the ecological andenvironmental systems in their settlement areas.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
179

	
  

Draft EIA Guidelines 2015, p.83.

64	
  Stakeholders are defined as persons, groups or communities external to thecore operations of a project who may be affected by the project or have aninterest in it. This may include individuals, businesses, communities, or local
government (IFC, 2012).
One of the key issues in the MONRE ESIA 2013 is the focus on scoping andscreening. Project scoping and screening are not defined in the MONRE ESIA
2013.
Project Screening means study and analysis of data contained in a proposed
investment project to determine whether the project requires initialenvironmental examination (IEE), or environmental impact assessment (EIA).
Scoping means the process of determining the scope of the environmental
impact assessment (EIA), i.e., the data that need to be collected and analyzed
to assess the impacts of the investment project on the environment. The
primary objective of the scoping process is to produce a terms of reference(TOR) for preparation of an environmental impact assessment report.
The Draft EIA Guidelines 2015 identify the main responsibilities of the project
developer. These are to:• Send an investment application form to MONRE to enable MONRE to
determine the scale of the project;• Prepare a Scoping Report and ToR for the EIA;
• Prepare the EIA Report, Environmental and Social Management andMonitoring Plan (ESMMP), and development plans;• Conduct public consultation meetings during preparation of the EIA;
• Incorporate mitigation measures in the design and procurement
documents;• Improve the ESMMP frequently, and implement the mitigation measuresduringthepre-construction,
construction,
operation
anddecommissioning, closure and post-closure phases; and• Carry out monitoring and auditing activities as stipulated in the
ESMMP.180
Chapter 2.1 of the Draft EIA Guidelines 2015 outlines the EIA process. The EIA
process requires completion of a Screening and Scoping Report and ToR for
EIA activities prior to preparation of the EIA Report. For the project screening,
the project developer shall submit an investment application to MONRE. The
project developer shall utilize the list of projects subject to EIA, in addition toconsidering the significance of the potential impacts of the project. MONRE will
make a decision based on the information provided by the project developer as
to whether the proposed project will have to undertake an IEE or an EIA.
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
180

	
  

Draft EIA Guidelines 2015, p.23.

65	
  During the project scoping, the project developer will prepare a Scoping Reportand detailed terms of reference for preparation of the EIA.181 Chapter 3 of the
Draft EIA Guidelines 2015 provides guidance on how to prepare the Scoping
Report and the ToR. MONRE will revise, comment on and approve the Scoping
Report and ToR before the project developer begins preparing the EIA.
Preparation of the EIA Report, ESMMP and development plans will requireconsultations with the local authorities and affected people.
The Draft EIA Guidelines 2015 describe this consultation process. Figure 3182
indicates the most important steps to undertake during preparation of the EIA,
especially with regard to public consultation. MONRE will conduct anadministrative and technical review of the EIA Report, ESMMP anddevelopment plans. The project developer will be required to revise the EIA
Report, ESMMP and development plans to comply with the consolidated
comments provided by MONRE and those of the Panel of Experts.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
181
182

	
  

MI Part II, Screening and Scoping.
Draft EIA Guidelines 2015, p.15

66	  

Project Proponent

1.1	
  Screening	
  based	  on	
  the	
  principles	
  and	
  categorization	
  in	
  the	
  Ministerial	
  Decision

MONRE

In case of doubt

Screen	  Project	
  and	  Activity

1.2	
  Determine	
  ESIA,	  IEE	  or	
  noneESIA Required

2.2	
  Review	
  Scoping	
  Report	
  and	  TOR

2.1	  Prepare/revise	  Scoping	
  Report	  and	
  Terms	
  of	
  References	
  (TOR)	
  for	  the	
  ESIA	  investigations
Revisions required

2.3	
  Decision	
  on	
  Scoping	
  Report	  &	
  TORApproved

	
  

	
  
3.1	
  Prepare/revise	
  ESIA	  Report

3.2	
  Review	
  ESIA	  Report

Revisionsrequired

3.3	
  ESIA	  Report	
  Decision

Project	
  implementation	  in	
  compliance	
  with	  ECC,	
  ECC	
  Conditions	  and	
  ESIA	  Report	
  (incl.	
  ESMMP)

Approved

Rejected

3.4	
  Issue	  ECCs	
  with	  conditions	  Termination

Figure 3: the ESIA process in more detailed, but only for the phases during
project development until issuance of the ECC for the ESIA and the ESMMP183

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
183

	
  

Draft ESIA Procedure 2015, p.15.

67	
  Screening	  The screening is conducted according to the MONRE Guidelines on Screening(2013).

Scoping	
  Scoping is the first phase in carrying out EIA studies.184 The project developer is
responsible for preparing the Scoping Report and Terms of Reference (ToR)and for preparing the EIA study. When completed, these documents shall besent to MONRE for comments and approval within 15 days under Article 2.4 of
the MONRE ESIA 2013.
Scoping is a fundamental phase in the EIA process,185 which:• Defines the study area, area of influence, time boundaries, project
phases, and potential stakeholders;• Starts the process of understanding the applicable regulations andstandards, and their context for project design and completion of the
EIA;• Makes a provisional identification of impacts, which provides focus on
the environmental and social issues that need to be addressed insubsequent EIA studies;• Provides an indication of what baseline data and information are
required, and how to obtain it;• Provides an opportunity for consultants, relevant authorities, project
developers, interested and affected parties to express their views andconcerns regarding the proposal before an EIA proceeds;• Enables an efficient assessment process that saves time, resources, costs
and delays; and• Identifies potentially affected communities and other stakeholders withan interest in the project.
During scoping, the likely key environmental impacts and risks of the project are
identified in a preliminary manner. The scoping phase establishes theframework of activities and impacts that require further investigation during the
EIA study. One of the main reasons for scoping is to limit further investigation
to those issues that are most important for decision-making and efficient,sustainable project execution.
According to the Draft EIA Guidelines 2015, the Scoping Report should include
the following main sections. A proposed table of contents for the Scoping
Report is presented in Table 3 of the Guidelines.
• Executive Summary;• Context of the Project;• Overview of the Policy, Legal and Institutional Framework
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
184
185

	
  

MI 2013, Article 2.3.
EIA Guidelines 2015, p.24.

68	
  

•
•
•
•
•

Project Description and Alternatives;
Description of the Environment;
Key Potential Environmental Impacts and Mitigation Measures;
Public Consultation and Disclosure; andConclusions and Recommendations.

Following scoping, MONRE will review the Scoping Report and approve andTerms of Reference.186

Preparation of an ESIA Report	  The project proponent is then required to prepare an ESIA Report, including an
Environmental and Social Management and Monitoring Plan (ESMMP). The
ESIA Report will be reviewed by MONRE in conjunction with other line
agencies. MONRE is required to hold consultation meeting with relevant
stakeholders including PAP and provide comments to the project proponent.
This may require further assessment if resettlement is required.187
The ESMMP has to be prepared in Lao language and is subject to review andapproval prior to the issuance of the ECC by MONRE. The ECC is the documentthat formally approves the ESIA Report and the ESMMP. MONRE is able tosuspend the ECC should the project proponent not comply with the ECC or the
ESMMP.
The process involves the following interconnected activities:• Description, mapping and analysis of the project components and theirlocation, activities, installations, production processes and use ofmaterials and resources;• Identification, mapping and analysis of emissions, extraction of resourcesand other potential disturbances and risks including their characteristics
and their likely spatial distribution, temporal aspects, amounts andhazards;• Identification, mapping and characterization of the receiving natural andsocial environment, including environmental, social, cultural, economic
assets; the state of such assets, and other existing and planned economic
activities;• Identification, analysis and synthesis of project related impacts and risks
on the surrounding natural and social environment including
determination of the significance of the impacts and risks;• Identification and characterization of legal and contractual requirements
and other provisions related to i) the identified emissions, resources use
and other potential disturbances; and ii) the identified receiving naturaland social environment; and• Determination and design of appropriate mitigation measures to ensurethat the impacts and risks are mitigated in the following order of priority:
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
186
187

	
  

MI 2013, Article 2.4.
MI Article 2.8.

69	  

prevented, minimized, rehabilitated or compensated; and in any case toensure compliance with all applicable legal and contractual
requirements.188

Access to information
	  The EPL 2012 also includes a broad provision regarding access to information:
Environmental Protection Law (2012)
Article 47. Environmental Information Services (new):
The natural resources and environmental sector shall develop theenvironmental information management and services to ensure the public
information provision based on regulations.
Persons, legal entities and organizations shall be able to access environmental
information.189
In addition, Articles 16 and 20 of the Law on Media (2008) allow Lao people theright of access to information about matters that are happening within the
country.
Article 2.20 of the MONRE ESIA (2013) provides details of the information thatis required to be disclosed to the public, including the ESIA Report, the EMMP,
the ESMMP and EIA budget and any other information required to be disclosed
by MONRE. This is to be in Lao and local language. There is a provision thatallows information to be withheld by MONRE upon request by the project
proponent. There is no provision that the information be provided in English.
The EIA Decree requires that the project proponent make suitable information
available to stakeholders in a language and format that is understandable tothem to facilitate meaningful consultation with groups affected by the project,civil society organizations and NGOs active in the project area. The EIA
Guidelines still require the project proponent to provide stakeholders sufficient
time to review and understand the project and its issues to enable them toparticipate effectively during consultation. For the public consultation meetings,
the project information provided to the people affected by the projects and thestakeholders should include the Scoping Report and the presentation materials.
This information is to be provided in both Lao and in English.190 There is noequivalent article in the MONRE ESIA (2013).
According to the EIA Guidelines 2015, disclosure of information is an importantpart of the project proponent’s engagement process during the construction,
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
188

Draft EIA Guidelines 2015, p.31.
Laotian EP Law (2012), Article 47.
190
EIA Guidelines 2015.
189

	
  

70	
  

operation and decommissioning, closure and post-closure phases. At the startof the construction phase, the project developer should prepare and distributeinformational materials about the construction activities. Information disclosure
should focus on the local and district levels.
The EIA Guidelines 2015 provide that all informational material shall be
provided in the Lao language and written in nontechnical terms to make it easy
to understand by the population.191
Under the EIA Guidelines 2015, the public consultation continues throughout
the EIA preparation phase. The project proponent must undertake a process of
consultation during the EIA study involving the affected communities and the
project stakeholders. Consultations should take place on a continuous basis
starting as early as possible in the EIA process.192
Articles 12 and 13 of the Lao PDR Decree on Compensation and Resettlementof People Affected by Development Projects 193 describe additional
requirements when the project involves resettlement and compensation. The
Public Involvement Guidelines (WREA, 2011) provide information on thedissemination, participation and consultation activities to be carried out during
the EIA process.194
The overall public participation process in the EIA Guidelines 2015 is quite
comprehensive. It starts at the scoping phase and continues to the operationand decommissioning phase. The actual scope of public participation in the
MONRE ESIA 2013 and the EIA Decree 2010 is more limited.

Public Participation	
  Public involvement of PAP and other stakeholders is required under Article 48of the EPL 2012195 and is outlined in MONRE ESIA 2013 Articles 2.14 and 2.15.
These provisions are fairly limited to receiving information about the projectand participate in consultation meetings. Whilst the project proponent isrequired under MONRE ESIA 2013 Article 2.18 to provide information to
MONRE, Article 2.20 details the information to be made available to PAP andother stakeholders by the project proponent. This includes:• Information about the project proponent;• The social and environmental impacts of the project;• The ESIA Reports;• Mitigation measures proposed;• The proposed budget for ESMMP; and• Any breaches of the obligations of the project proponent.
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
191

EIA Guidelines 2015, p.56.
EIA Guidelines 2015, p.56, Table 15.
193
No. 192/PM, 7 July 2005.
194
EIA Guidelines 2015.
195
Laotian EP Law (2012), Article 48.
192

	
  

71	
  

With respect to public consultation in an EIA, Article 2.5 of the MONRE ESIA2013 and Chapter 3.8 Public Consultation and Disclosure detail the information
required to be included in the EIA Report.196 Involving the public in preparationof the EIA is fundamental to increasing the understanding and acceptance ofthe project, to understanding how the project may affect their living conditions,as well as to identifying impacts and issues that are not immediately obvious to
the EIA preparation team.
In the Lao PDR, the project developer shall undertake a process of consultation
during the EIA study involving the affected communities and the projectstakeholders.197 According to the Draft EIA Guidelines 2015, consultation shallbe conducted in coordination with local authorities on a continuous basis
starting as early in the EIA process as possible.
The Draft EIA Guidelines 2052 identifies the following contents should be
included in the “Public Consultation and Disclosure” section of any draft EIA
report.

Table 3: Key Content of Public Consultation and Disclosure	
  HEADING
Methodology
Stakeholders

KEY CONTENTS

Consultationand disclosure
activities

Tables and schedules indicating timing, duration, location, andparticipants in consultation activities at village/district,
district/provincial and provincial/central levels
Tables with list of disclosure materials, timing, methods of
disclosure and target groups including disclosure of theminutes of the consultation meetings
Issues and recommendations identified by the stakeholders
Prioritization and ranking of issues raised
Final outcome of resolutions to issues raised including the
project proponent’s responses and feedback from thestakeholders whether they are satisfied with the responses
Detailed proceedings / minutes for each consultation activity
with complete list of participants (however respecting
requests for anonymity) for each consultation activity andconfirmation from the chair persons and stakeholder
representatives that the comments and recommendations of
the stakeholders have been duly recorded

Results

Consultation
details

Table with updated list and presentation of the stakeholder (basedon the stakeholder analysis conducted during the Scoping Phase)In the Draft EIA Guidelines 2015, public consultation is recognized as animportant responsibility of the project proponent and is as a crucial step towardbuilding understanding and acceptance of the project by the stakeholders.
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
196
197

	
  

EIA Guideline 2015, p.58, Table 15.
MI Article 2.12.

72	
  Public consultation provides the proponent with feedback and information
about “valued environmental components” of the communities affected by the
project.
It can be seen from Figure 2.2 that in Lao PDR public consultation is seen as aspectrum of participation and as part of the continuum of the EIA procedure.
The consultation process is an ongoing activity that will take place throughout
the project implementation cycle. The Scoping Report should define the future
consultation process in terms of:• Objectives of consultations during preparation of the EIA Report;• The participants to be involved in future consultations; and• Information disclosure.
The public participation process under the ideal situation can be broken down
into four key sequential phases, each of which is a prerequisite for the next:
1. Information gathering: collection of baseline data from the public to feed
into the description of the environment and impact prediction;
2. Information dissemination: stakeholders are informed about the project;
3. Consultation: stakeholders are given the opportunity to voice their views
about the project; and4. Participation: an extension of consultation, where stakeholders become
joint partners in the design and implementation of projects (mitigation
measures, community development activities, etc.) and take part indecision-making.
Whilst the project proponent is clearly responsible for community consultation
during the scoping phase, during preparation and review of the EIA report andthe ESMMP, MONRE, the local administration, the responsible agencies and the
project proponent shall organize consultation meetings at the village, district
and provincial levels. These consultation meetings provide a forum for thepeople affected by the project and other stakeholders to share their opinions
and provide their comments on the report and plans, from the first drafts
through the final drafts.
The community consultation process will continue throughout the construction,
operation and decommissioning, closure and post-closure phases. The ESMMP
Report should define the future consultation process in terms of:• Objectives of the consultation for each project phase;• Consultation committee(s);• Complaint and grievance mechanisms; and• Disclosure.
MONRE ESIA 2013 Article 2.14 provides that the people affected by the projectand other stakeholders should participate in discussions on implementation of
the environmental and social activities, as well as the ESMMP of the investment
project. Article 7 (7) of the EIA Decree provided that people affected by the
project and other stakeholders have the right and duty to make a written
	
  

73	
  

proposal to solve the environmental and social problems caused by theinvestment project to the local administrations at each level, or directly to
MONRE if the problems have not yet been solved. This part was not included in
the MONRE ESIA 2013.

Obligations of Project Proponent	
  Under the EPL 2012, the project proponent is responsible for any
environmental damage caused by the project.198 In addition, Article 58 requires
the provision of financial guarantees “to restore, remove pollutants and clean
the environment affected by its operations, from commencement tillcompletion.”199
Environmental Protection Law (2012)
Article 55. Responsibilities in Environmental Rehabilitation (new):
Persons, legal entities or organization implementing investment projects oractivities, which create environmental and social impacts, shall correct,
improve, rehabilitate and remunerate damages within the affected areas.200
In Lao PDR, private investment projects in the natural resources sector
including hydropower projects, mining projects and agriculture and forestry
projects are required to enter into a concession agreement with theGovernment of Lao PDR. The concession agreement for such projects may
contain specific environmental and social obligations complementary and in
addition to the statutory requirements. In particular, for the hydropower sector,
MONRE has developed Standard Environmental and Social Obligations (SESO),
which form the basis for the project specific environmental and social
obligations in the concession agreement for the project. The SESO form astandard and contain standard terms and conditions that in principle are nonnegotiable, but the SESO also identify the areas or issues where theenvironmental and social obligations have to be custom made to fit the project
specific design, installations, layout, location and surrounding social andenvironmental situation.201

Complaints and Grievances Mechanisms	  The EPL 2012 inserted a new Part IX to deal with dispute settlements. The EPL
2012 established a hierarchy:

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
198

Laotian EP Law (2012), Article 55.
Laotian EP Law (2012), Article 58.
200
Laotian EP Law (2012), Article 55.
201
ESIA Guidelines 2015 (draft), p.16.
199

	
  

74	
  

Environmental Protection Law (2012)
PART IX: DISPUTE SETTLEMENT
Article 71. Forms of Dispute Settlement (new):
Settlement of environmental disputes shall be one of these forms:(1) Conciliation of conflicting parties;(2) Mediation;(3) Administrative settlement;(4) Settlement by the Economic Dispute Resolution Office;(5) Lawsuits via people’s courts;(6) Settlement of Internationally Characterized Disputes.202
It is recommended that the project proponent establish a complaints andgrievances mechanism (CGM) related to environmental and social issues arisingduring the construction, operation and decommissioning, closure and postclosure phases. It is suggested that this CGM be managed by the project
developer with involvement of local authorities.
The introduction of a grievance mechanism is an important step to allow an
ongoing involvement of the community in the resolution of disputes.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
202

	
  

Laotian EP Law (2012), Article 71.

75	
  Republic of the Union of Myanmar
Introduction	  The Ministry of Natural Resources and Environment Conservation (MONREC),
formerly known as MOECAF, is the Ministry with the authority andresponsibility for the implementation of EIA. Under the Environmental
Conservation Law 2012 (ECL 2012)203 and Environmental Conservation Rules
2014, the Ministry developed the Environmental Impact Assessment Procedure(2015).
The Constitution of Myanmar contains specific references to the obligation toprotect the environment. The Union is the owner of the natural resources andwhilst the Constitution allows for creation of laws to extract and utilize thesenatural resources, this is qualified by the obligation under Section 45 to protect
and conserve the natural environment.
Every citizen has the duty to assist the Union in environmental conservation andthe protection of cultural heritage. These duties are not qualified.
Constitution of Myanmar (2007)
Article 37:
The Union:(a) Is the ultimate owner of all lands and all natural resources aboveand below the ground, above and beneath the water and in theatmosphere in the Union;(b) Shall enact necessary law to supervise extraction and utilization ofState owned natural resources by economic forces;(c) Shall permit citizens right of private property, right of inheritance,right of private initiative and patent in accord with the law.204
Article 45:
The Union shall protect and conserve natural environment.205
Article 390:
Every citizen has the duty to assist the Union in carrying out the following
matters:(a) Preservation and safeguarding of cultural heritage;
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
203

Republic of the Union of Myanmar, The Environmental Conservation Law, The Pyidaungsu
Hluttaw Law No. 9/2012 (enacted 30 Mar. 2012), available at:
http://www.altsean.org/Docs/Laws/Environmental%20Conservation%20Law.pdf [hereinafter
Burmese ECL (2012)].
204
Republic of the Union of Myanmar, Constitution of the Republic of theUnion of Myanmar (adopted 29 May 2008), Article 37 [hereinafter Burmese Constitution(2008)].
205
Burmese Constitution (2008), Article 45.

	
  

76	
  

(b) Environmental conservation;(c) Striving for development of human resources;(d) Protection and preservation of public property.206
The Environment Conservation Department of the Ministry of Natural
Resources and Environmental Conservation (MONREC) was formed in 2012.
The ECL 2012 provides the legal basis for implementing a range of enhanced
environmental management measures.
•••

Environment Conservation Law 2012
Environment Conservation Rules 2014
Environmental Impact Assessment Procedure 2015

One of the objectives of the ECL 2012 is to enable the implementation of the
Myanmar National Environment Policy, which was adopted in 1994. The policy
states:Myanmar National Environment Policy (1994)
The wealth of the nation is its people, its cultural heritage, its environment
and its natural resources. The objective of Myanmar’s environmental policy is
aimed at achieving harmony and balance between these through the
integration of environmental considerations into the development process toenhance the quality of the life of all its citizens. Every nation has the sovereign
right to utilize its natural resources in accordance with its environmental
polices; but great care must be taken not to exceed its jurisdiction or infringe
upon the interests of other nations. It is the responsibility of the State andevery citizen to preserve its natural resources in the interests of present andfuture generations. Environmental protection should always be the primaryobjective in seeking development.
Myanmar recently enacted the 2016 Myanmar Investment Law, which
implements the government's approach to both foreign and domestic
investment. It includes the objective of developing businesses which do notcause harm to the environment. Section 41 specifically prohibits businesses
which may affect traditional cultures and customs, affect public health or cause
damage to the natural environment and ecosystem. Investors have a wide
range of duties, including using international best standards so as not to cause
damage, pollution or loss to the natural and social environment. Section 36
provides that businesses that are designated by the Myanmar Investment
Commission (MIC) to be strategic for Myanmar, capital intensive investments orhave a large potential impact for the environment and the local community
must submit a proposal to the MIC. It is not clear whether this proposal must
include an EIA report (as was required by the previous rules) or if a permit must
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
206

	
  

Burmese Constitution (2008), Article 390.

77	
  

be acquired before an EIA is undertaken. The government is expected torelease implementing rules which may clarify this point.
The ECL 2012 provides the overview on environmental protection in Myanmar.
The objectives of the ECL 2012 include:
Environment Conservation Law (2012)
Section 3:
The objectives of this Law are as follows:(a) To implement the Myanmar National Environment Policy;(c) To promote a good and clean environment…for the benefit ofboth present and future generations;(e) To manage prevention of degradation of natural resources and toenable the sustainable use.207
The ECL 2012 also requires business or activities causing pollution to limit
pollution discharges to environmental quality standards and to install pollution
control equipment to control and limit pollution.
Environment Conservation Law (2012)
Section 14:
A person causing a point source of pollution shall treat, emit, discharge anddeposit the substances which cause pollution in the environment in accord
with stipulated environmental quality standards.208
Section 15:
The owner or occupier of any business, material or place which causes a point
source of pollution shall install or use an on-site facility or controlling
equipment in order to monitor, control, manage, reduce or eliminate
environmental pollution. If it is impracticable, it shall be arranged to dispose
the wastes in accord with environmentally sound methods.209

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
207

Burmese ECL (2012), Section 3.
Burmese ECL (2012), Section 14.
209
Burmese ECL (2012), Section 15.
208

	
  

78	
  

In addition, the Environmental Conservation Rules 2014 provide a clear
prohibition on the carrying out of certain activities and damage to theenvironment.
Environmental Conservation Rules (2014)
CHAPTER (XIII): PROHIBITONS
Article 69:(a) Any person shall not emit, cause to emit, dispose, cause to dispose, pileand cause to pile, by any means, the pollutants and the hazardous wasteor hazardous material stipulated by notification under the Law and any ofthese rules at any place which may affect the public directly or indirectly.
(b) Any person shall not carry out to damage the ecosystem and thenatural environment which is changing due to such system, except forcarrying out with the permission of the Ministry for the interest of thepeople.
Under the ECL 2012, MONREC is given the authority to formulate the EIA
system and social impact assessment system to determine if any project or
activity to be undertaken by any government department, organization or
person may have a significant impact on the environment.210
In addition, the Ministry is provided with the power to set environmental quality
standards.211 Environmental quality standards are further defined and explainedin Chapter VI, Sections 10, 11 and 12.212

Definitions of EIA Terms
	  The EC Law, EC Rules and EIA Procedure define a number of terms for EIA in
Myanmar. The EC Law defines environment and ecosystem:
Environment means the physical factors of the surroundings of humanbeings, including land, water, atmosphere, climate, sound, odour, taste; thebiological factors of animals and plants; and historical, cultural, social andaesthetic factors213;
Ecosystem means the natural system of existing living and non-living
substances and plants in equilibrium and the natural environment which havebeen evolving due to the system.214
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
210

Burmese ECL (2012), Section 7(m).
Burmese ECL (2012), Section 7(d).
212Burmese ECL (2012), Sections 10-12.
213
Burmese ECL (2012), Section 2(a).
214Burmese ECL (2012), Section 2(m).
211

	
  

79	
  

The EC Rules provide further definitions for EIA, IEE and EMP:
Environmental Impact Assessment means the process of systematic study
whether or not there are potentials or impact processes that may cause on
the physical, human, biological and socioeconomic environment which is
required as part of the decision making process on the proposed project,business, service or activity;
Third person or organization means any other person or organization
except a person or an organization that implements the project, business oractivity or a person or an organization that scrutinizes and allows it;
Initial Environmental Examination means the initial process which studies
whether or not potential impacts of a project or business or activity issignificant, whether or not it is necessary to carry out environmental impact
assessment and whether or not it is necessary to prepare and submit otherstipulated documents;
Environmental Management Plan means a project document prepared inaccord with the requirements, guidance of the Ministry to refrain from,protect, mitigate and monitor adverse impacts caused by designing,
construction, implementation, operation, maintenance, termination, closure ofa project or business or activity; or after its closure, or by any other cause.
Such plan includes manners to manage, work programmes to implement,
work programmes to monitor the change of environmental situation andenvironmental conservation and protection, measures for environmental
emergency, to refrain from, protect and mitigate environmental impacts
caused by a project or business or activity or caused by any part of a projector business or activity.
The EIA Procedure (2015) also defines key terms that are used in the EIA andIEE process:Project Affected Person or PAP means a natural person, legal entity, ororganization that is, or is likely to be, directly or indirectly affected by a Projector a proposed Project, including without limitation effects in the nature oflegal expropriation of land or real property, changes of land category, andimpacts on the ecological and environmental systems in the settlement areasof such person, entity or organization.
Adverse Impact means any adverse environmental, social, socio-economic,
health, cultural, occupational safety or health, and community health andsafety effect suffered or borne by any entity, natural person, ecosystem, or
natural resource, including, but not limited to, the environment, flora andfauna, where such effect is attributable in any degree or extent to, or arises inany manner from, any action or omission on the part of the Project
Proponent, or from the design, development, construction, implementation,

	
  

80	
  

maintenance, operation, or decommissioning of the Project or any activities
related thereto.
Environmental Impact means the probable effects or consequence on thenatural and built environment, and people and communities of a proposed
Project or businesses or activities or undertaking. Impacts can be direct orindirect, cumulative, and positive or adverse or both. For purposes of thisProcedure, Environmental Impacts include occupational, social, cultural,socio-economical, public and community health, and safety issues. Moreover,social impacts include Involuntary Resettlement and relating to Indigenous
People.
Cumulative Impact in relation to a project means the impact or impacts of a
Project that in itself or themselves may not be significant but may become
significant when added to the existing and potential impacts eventuating fromsimilar or diverse Projects or undertakings in the same geographic area orregion.

Procedure for EIA	  The EC Rules establish a framework for EIA in Chapter XI. MONREC is todetermine which projects, businesses or activities are required carry out anEIA.215 The EC Rules allow for a two-tiered system of IEE or EIA.216
EIAs or IEEs are to be carried out by qualified and registered third-party
consultants.217 Proposed projects must include an Environmental Management
Plan (EMP) that is to be submitted together with the IEE or EIA. These are to
be submitted prior to the project being approved218 and are to be assessed by
MONREC.
The EC Rules also make provision for an EIA Report Review Body with experts
from relevant government departments and other government organizations.219
MONREC may approve the EIA or EMP following review of the proposed
project by the EIA Report Review Body.220 The EC Rules do not make any
specific reference to public participation or community consultation.
The EIA Procedure 2015 provides the detail of the proposed EIA system in
Myanmar. Although there were some community workshops to inform civilsociety and the private sector on the Draft EIA Procedure, there was no formal
public consultation process on the Procedure.
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
215

EP Rules, Article 52.
Article 53.
217
Article 56.
218
Article 52.
219
Article 58.
220
Article 61.
216

	
  

81	
  

Chapter 2 of the EIA Procedure 2015 provides that:“[A]ll Projects undertaken in the Republic of the Union of Myanmar by any
ministry, government department, organization, corporation, board,development committee, local government or authority, company,
cooperative, institution, enterprise, firm, partnership or individual having thepotential to cause significant Adverse Impacts, are required to undertake
IEE or EIA and to obtain an Environmental Compliance Certificate inaccordance with this Procedure.”
The EIA Procedure 2015 includes a screening Annex to provide guidance forthe types of listing those projects required to carry out either an EIA or IEE.
The EIA Procedure 2015 provides a standard process for EIA.
1. Screening;
2. Selection and check of the EIA expert;
3. Scoping;a. Information disclosure and consultation;b. Scoping Report and EIA Terms of Reference; andc. Revision/approval/conditions within 15 days.
4. EIA Investigation;
5. EIA Report;
6. EIA Review process;7. ECC Issuing; and8. Appeal process.

Figure 5: Developed by Cosier and Baird (2015)

	
  

82	
  

Section 15 of the EIA Procedure 2015 establishes that MONREC is the exclusive
authority for the IEE and EIA process in Myanmar:
Environmental Impact Assessment Procedure (2015)
Section 15:
The Ministry has the power and exclusive authority to:(a) Define Project screening criteria;(b) Approve technical guidelines for IEE and EIA;(c) Review and approve IEE Reports;(d) Provide guidelines for and approve the ToR of EIA;(e) Review and approve EIA Reports;(f) Review and approve EMP, Construction Phase EMP and Operational
Phase EMP;(g) Determine and impose Environmental Impact related conditions
which will be applicable to any approval of an IEE, EIA or EMP;(h) Monitor and enforce compliance with the conditions set forth in
an ECC and monitor and enforce the implementation of EMP,
including any amendments thereof occasioned once the detailed
design of the proposed Project has been finalized or by or on accountof experience during implementation of the Project;(i) Require any Project to update its EMP and to submit such updated
EMP to the Ministry for review and approval according to a scheduledefined by the Ministry;(j) Identify and notify the registration conditions and/or procedures
for a Third Person or Organization who wishes to undertake IEE or
EIA; and(k) Perform other duties and functions relating to IEE and EIA as
stipulated by the Union Government.
The EIA Report Review Body is also given specific responsibilities under the EIA
Procedure 2015:
Environmental Impact Assessment Procedure (2015)
Section 16:
The EIA Report Review Body shall have the following responsibilities:(a) When requested by the Ministry, to review the EIA of any Project.
(b) Within the timeframe prescribed by the Ministry, to prepare an
EIA Review report in regard to an EIA Report.

	
  

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(c) In each case, prescribe the scope and content of the EIA Review
report. Such scope and content may include, among other things,
assessments of the following questions:• Does the EIA Report comply with this Procedure?
• Does the EIA Report comply with the Scoping Report and theToR for the EIA?
• Does the EIA Report comply with explicit guidelines, standards,
timing and criteria for review?
• Does the EIA Report recognize and consider the views of
stakeholders?
• Is the EIA Report complete? Does it contain sufficient, suitable
and reliable information?
• Have all applicable environmental and social requirements
been adequately identified, addressed, referred to and fullycomplied with in the preparation and content of the EIA Report?
• Have all foreseeable Adverse Impacts been identified andaddressed in the preparation and content of the EIA Report?
• Is it likely that the measures to prevent, mitigate or minimize
Adverse Impacts of the Project specified in the EIA Report will
ensure that the environmental requirements will be fullycomplied with?
• Are the measures to prevent or minimize pollution from theProject effective and based on BAT and Good Practice?
• Are there any measures or procedures which are noncompliant, or which risk leading to non-compliance, withenvironmental and social requirements?
• Can the Project as described and presented in the EIA Reportbe constructed and operated without causing unacceptable
Adverse Impacts?
(d) The EIA Review report shall identify any defects in the EIA
investigations or in the EIA Report and shall give recommendations
as to which further studies, investigations, consultations orassessments the Project Proponent must undertake and report.
(e) The EIA Review report shall, where relevant, give recommendations
on conditions of the ECC.
(f) If requested by the Committee or the Ministry, the EIA Report
Review Body shall present its findings at a meeting.
The EIA Procedure 2015 further provides that EIA consultants must be
registered with MONREC. No EIA or IEE may be conducted unless theconsultant or firm is registered. MONREC has established a temporary system
for registration of EIA experts.
Screening	
  Screening is the first step in the EIA or IEE process. The project proponent willsubmit an application to MONREC to determine the level of assessment that is

	
  

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required using the Annex I list of projects (Article 23). Under Article 24, theMinistry will also determine whether an EMP is required for any project (i.e.,regardless of the decision on whether an IEE or EIA is required). There are
exceptions to this as set out in Articles 25 and 26:
Article 25:
An EIA is required in all cases where the Project will be located in or will haveforeseeable adverse effects on any legally protected national, regional orstate area, including without limitation: (i) a forest conservation area(including biodiversity reserved area); (ii) a public forest; (iii) a park (including
marine parks); (iv) a mangrove swamp; (v) any other sensitive coastal area; (vi)a wildlife sanctuary; (vii) a scientific reserve; (viii) a nature reserve; (ix) a
geophysically significant reserve; (x) any other nature reserve nominated by
the Minister; (xi) a protected cultural heritage area; and (xii) a protectedarcheological area or area of historical significance.
Article 26:
Notwithstanding any categorization set forth in Annex A ‘Categorization of
Economic Activities for Assessment Purposes’, the Ministry reserves the rightto change the type of the Project as necessary, if the Ministry determines thatspecial circumstances so warrant to require a Project that would otherwise berequired to complete and submit an IEE or an EIA or to exempt a Project fromcompleting any IEE or EIA assessment.
Article 27 provides that MONREC can consider project proposals that are
submitted separately as a single project for the purposes of screening. This
allows for the potential impacts of projects that are connected – for whateverreason – to be assessed concurrently.
Article 27:
For purposes of Screening, the Ministry may at its discretion elect to treat
Projects that are logically or economically linked, or which have the same or
related proponents, or which are sequential in time, as a single Project.
Components of basic infrastructure (such as an access road, transmission
tower or waste disposal facility) that are required for a larger Project (such asa mine or a power plant) shall be considered to be part of that larger Project.
In such circumstances, the Ministry may determine whether an IEE or an EIA
will be required for the Projects that are treated as a single Project.
The determination of the screening step must be made within 15 days fromreceiving the project application.

	
  

85	
  

Scoping	  All EIA projects must undergo scoping (Article 47). Following the screening
determination that an EIA is required, the project proponent and its EIA
consultant must develop a draft ToR for the EIA for the proposed project.
Scoping requires both an initial study of the proposed project and the possible
environmental and social constraints as well as beginning the process of public
consultation with PAP and other stakeholders.
Scoping is designed to:• Define the study area, area of influence, time boundaries, project phases,
and potential stakeholders;• Start the process of understanding the applicable regulations andstandards, and their context for project design and completion of the
EIA;• Make a provisional identification of Environmental Impacts, focusing inparticular on the environmental, social and health issues that need to beaddressed in subsequent EIA studies;• Provide an indication of the depth and breadth of the subsequent EIA
investigations including what baseline data and information are required,what further studies and investigations must be carried out, and how
such data collection, studies and investigations shall be undertaken;• Provide an opportunity for consultants, relevant authorities, project
developers, and interested and affected parties to express their views
and concerns regarding the proposal before an EIA proceeds;• Enable an efficient and comprehensive assessment process that saves
time, resources, and costs and avoids delays; and• Identify potentially affected communities and other stakeholders with aninterest in the project. (Article 49).
In Myanmar, public participation is mandatory at the scoping stage to bothrelease relevant information and consult interested stakeholders.
Article 50:
As part of the Scoping, the Project Proponent shall ensure that the following
public consultation and participation process is carried out:(a) Disclose information about the proposed Project to the public andcivil society through posting on the Project or Project Proponent’s
website(s) and local media, including by means of the prominent
posting of legible sign boards and advertising boards at the Projectsite which are visible to the public; and(b) Arrange the required complement of consultation meetings asadvised by the Ministry, with local communities, potential PAPs, local
authorities, community based organizations, and civil society, and

	
  

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provide appropriate and timely explanations in press conferences
and media interviews.
The Scoping Report must be prepared in accordance with any guidelines issued
by the Ministry and shall include draft ToR for the EIA Report in accordancewith Article 51.
MONREC has 15 days to review the Scoping Report and ToR and either
approve the ToR or require further amendments to the Scoping Report and/or
ToR.
EIA Report Preparation	  Once the Scoping Report and ToR have been approved by MONREC, theproject proponent is then able to commence the EIA investigation and the
preparation of the EIA and the EMP. This must include an assessment ofalternatives (Article 48) and must be in accordance with the approved ToR(Article 55). The EIA is to be comprehensive, as indicated in Articles 56 and 57.
It must also address the relevant national and international standards. Myanmar
adopted National Environmental Quality Standards in 2015, which an EIA must
address, in accordance with the EIA Procedure 2015.
Article 56:
The EIA investigation shall consider all biological, physical, social, economic,
health, cultural and visual components of the study area, together with all
pertinent legal matters relating to the environment, people and communities(including land use, resources use, and ownership of and rights to land andother resources) that may be affected by the Project during all Project phases
including pre-construction, construction, operation, decommissioning, closure,and post-closure, and shall identify and assess all Adverse Impacts, risks,
Cumulative Impacts and Residual Impacts for environment, social and, if
relevant, health that potentially could arise from the Project.
Public participation and consultation with PAP and stakeholders forms an
integral part of the EIA process in Myanmar.
Article 61:
As part of the EIA investigations, the Project Proponent shall undertake thefollowing consultation process:(a) Timely disclosure of all relevant information about the proposed
Project and its likely Adverse Impacts to the public and civil society
through local and national media, the website(s) of the Project or
Project Proponent, at public places such as libraries and community
halls, and on sign boards at the Project site visible to the public, andprovide appropriate and timely explanations in press conferences and

	
  

87	
  

media interviews; arrange consultation meetings at national, regional,
state, Nay Pyi Taw Union Territory and local levels, with PAPs,
authorities, community based organizations and civil society;(b) Consultations with concerned government organizations including
the Ministry, the concerned sector ministry, regional government
authorities and others; and(c) Field visits for the Ministry and concerned governmentorganizations.
The EIA Procedure 2015 provides a detailed table of contents for an EIA
Report, which further outlines the topics and issues to be addressed in the EIA(Article 63 – see the Table at the end of this Chapter).
Once the EIA Report is prepared and submitted, there is a need for disclosureof the EIA Report and the EMP.
Article 64:
After completing all investigations and public consultation and participation
processes required for EIA Type Projects, the Project Proponent shall submit
the EIA Report to the Department in both digital form and complete paper
copies, together with the required service fee as prescribed by the
Department.
Article 65:
Not later than fifteen (15) days after submission of the EIA Report to the
Department, the Project Proponent shall disclose the EIA Report to civilsociety, PAPs, local communities and other concerned stakeholders: (i) bymeans of national media (i.e. newspapers); (ii) the website(s) of the Project or
Project Proponent; (iii) at public meeting places (e.g. libraries, community
halls); and (iv) at the offices of the Project Proponent.
Article 66:
Upon receipt of the EIA Report, the Department will make the EIA Reportpublicly available.
The EIA Report must also comply with the table of contents in Article 63 (seethe Table at the end of this Chapter).
MONREC will arrange public consultation meetings and the EIA Review Report
Body will examine the EIA Report and EMP and either recommend the project
be approved, amended or rejected. The Minister makes the final decision. If
approved, MONREC will then issue an ECC for the project.
The project proponent is liable for monitoring and compliance with the EIA,

	
  

88	
  

EMP and ECC. There is no requirement for the project proponent to establish
any community consultative committee or grievance mechanism for PAP.

Public Participation
Article 13:
The Project Proponent shall:(a) Arrange for appropriate public consultation through all phases of
the IEE and EIA process as required by Articles 34, 50, and 61; and(b) Disclose to the public in a timely manner all relevant Projectrelated information in accordance with this Procedure except thatwhich may relate to National Security concerns as informed by the
Ministry.
Under the EIA Procedure 2015, the project proponent for an EIA-type project
shall implement public consultation processes at both the scoping andinvestigation steps.
Consultation and information disclosure about the project is required at thescoping stage. During scoping, the proponent must ensure that the public
participation does the following (Article 50):(a) Disclose information about the proposed Project to the public and civilsociety through posting on the Project or Project Proponent’s website(s) andlocal media, including by means of the prominent posting of legible signboards and advertising boards at the Project site which are visible to the
public; and(b) Arrange the required complement of consultation meetings as advised by
the Ministry, with local communities, potential PAPs, local authorities,
community based organizations, and civil society, and provide appropriate andtimely explanations in press conferences and media interviews.
During the EIA preparation phase, which occurs after the ToR have been
finalised with MONREC, the project proponent or EIA consultant must
undertake information disclosure and public participation. Under the EIA
Procedure 2015, the EIA shall “consider the views, concerns, and perceptions ofstakeholders, communities and individuals that could be affected by the Projector who otherwise have an interest in the Project” (Article 60).
Article 61 requires that, as part of the EIA investigation, the project proponent
shall undertake the following consultation process:

	
  

89	
  

(a) Timely disclosure of all relevant information about the proposed Projectand its likely Adverse Impacts to the public and civil society through local andnational media, the website of the Project Proponent, at public places such as
libraries and community halls and sign boards at the Project site visible to the
public;(b) Arrange consultation meetings at national, state and local level with PAPs,
authorities, community based organizations, and civil society;(c) Consultations with concerned government organizations including
MOECAF, the concerned sector ministry, regional government authorities,
and others; and(d) Field visits for the MOECAF and concerned government organizations.221
Public concerns should also be taken into account in assessing impacts,
designing mitigation measures and selecting monitoring parameters. The EIA
Report must include a section on the public consultation process, including theresults of public consultations and negotiations with the affected populations
on environmental and social issues.
A special feature of the EIA Procedure 2015 is the provision for an
administrative Appeal Process. This is applicable for both the project proponent
and those potentially adversely affected by the project.
The EIA Procedure 2o15 does not make any provision for a community
consultative committee or grievance committee to be established. Public
participation and community involvement in the operation phase and inmonitoring and enforcement of the EMP is likewise not specified.

Table of Contents for EIA Report
1.0
2.0

3.0

Executive Summary
Introduction
2.1
Presentation of the Project Proponent
2.2
Presentation of the Environmental and Social Experts
2.3
Presentation of the Health Experts for Projects with HealthImpacts
Policy, Legal and Institutional Framework
3.1
Corporate Environmental and Social Policies (if applicable)
3.2
Policy and Legal Framework, including existing applicable laws
and rules, International Conventions, Treaties and Agreements,
and national and international standards and guidelines
3.3
Contractual and other Commitments
3.4
Institutional Framework

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
221

None of the details are clarified in the draft EIA Procedure 2015. This will need to be subject
to further guidelines.

	
  

90	
  

4.0

5.0

	
  

3.5
Project’s Environmental and Social Standards
3.6
Health Standards for Projects with Health Impacts
Project Description and Alternative Selection
4.1
Project Background4.2
Project Location, overview map and site layout maps
4.3
Project Development and Implementation Time Schedules
4.4
Description of the project size, installations, technology,
infrastructure, production processes, use of materials andresources and generation of waste, emissions anddisturbances, including the devises and measures to control
emissions and disturbances, all together with overview maps
and site layout maps and design drawings for each Project
phase (pre-construction, construction, operation,
decommissioning, closure and post-closure)
4.5
Description of the selected Alternative(s) by Project
phase (pre-construction, construction, operation,
decommissioning, closure and post-closure)
4.6
Comparison and Selection of the preferred Alternatives
Description of the Surrounding Environment
5.1
Setting the Study Limits
5.2
Methodology and Objectives
5.3
Public Administration and Planning: Identification andsummary of the main relevant elements in socio-economic
development plans, spatial plans, and sector plans at Union
Government, State or Region, City and Township levels
5.4
Legally protected national, regional or state areas, including
without limitation: (i) forest conservation areas (including
biodiversity reserved areas); (ii) public forests; (iii) parks(including marine parks); (iv) mangrove swamps; (v) any othersensitive coastal areas; (vi) wildlife sanctuaries; (vii) scientificreserves; (viii) nature reserves; (ix) geophysically significant
reserves; (x) any other nature reserve nominated by the
Minister; (xi) protected cultural heritage areas; and (xii)
protected archeological areas or areas of historicalsignificance.
5.5
Physical Components: Description with data and maps of (i)topography; (ii) water resources; (iii) geology and soils,
hydrology/hydrogeology; (iv) environmental quality; (v) climate;(vi) vegetation cover; and (vii) natural hazards including
earthquakes, tsunamis, extreme weather events, flooding,drought, wildfires and others
5.6
Biological Components: Descriptions and maps on fauna andflora including abundance, spatial distribution of rare,endangered and vulnerable species, and species of economic
and health/nutritional values, and maps and description ofvalued or sensitive environmental areas and habitats
5.7
Infrastructure and Services: Location and size or capacity of

91	
  

6.0

	
  

transport infrastructure, public utilities and services
5.8
Socio-Economic Components: Income and livelihoods, living
conditions and access to public services and natural resources,
land use maps, population distribution maps, maps and chartsof other socio-economic indicators such as poverty,
employment and education
5.9
Public Health Components: Mortality and morbidity,
occurrence of diseases, accidents and injuries, and social healthdeterminants
5.10 Cultural Components: Description and maps of cultural,
historical, and religious sites, structures and objects, andobjects with high aesthetic value; description of traditional
knowledge and beliefs, and cultural practices
5.11 Visual Components including where applicable landscape, city
scape and sea scape using three dimensional models
Impact and Risk Assessment and Mitigation Measures
6.1
Impact and Risk Assessment Methodology
6.2
Impact and Risk Identification, Assessment and Mitigation. For
each Project phase (pre-construction, construction, operation,
decommissioning, closure, and post-closure):
6.2.1
Identification and assessment of potential
Environmental Impacts including (i) physical,
biological, social, socio-economic, health, cultural, andvisual impacts; (ii) potential impacts on climate changesuch as greenhouse gas emissions and loss of carbon
sinks or stocks; and (iii) identification of impacts ofclimate change on the Project based on available
climate change predictions from designated national
authorities or international scientific research bodies
6.2.2
Identification and assessment of the likelihood andseverity of natural and industrial hazards
relevant to the Project
6.2.3
The design, layout, functioning, management andimplementation of appropriate impact and risk
mitigation measures
6.2.4 Characterization and assessment of any Residual
Impacts and risks and comparison withapplicable regulations, standards and guidelines
6.2.5
Comprehensive monitoring plan
6.3
Relevant maps, aerial photos, satellite images in proper scale
clearly indicating the location of sources of Adverse Impacts,
the spatial and temporal distribution of such impacts and withreference to the Description of the Surrounding Environment,
the components that are likely to be impacted and the natureof the impacts.

92	
  

7.0

8.0

9.0

	
  

Cumulative Impact Assessment
7.1
Methodology and Approach
7.2
Cumulative Impact Assessment
7.2.1
Brief description and map of relevant existing
and future private and public projects and developments
7.2.2
Identification and assessment of the potential
cumulative impacts on the components in thesurrounding environment and the Project’s contribution
to such impacts
7.2.3
Determination of the leverage and influence that the
Project may have over the significant and project related
cumulative impacts
7.2.4
Description of measures to mitigate the Project’s
contribution to the cumulative impacts
Environmental Management Plan
8.1
Project Description by Project phase (pre-construction,
construction, operation, decommissioning, closure andpost-closure)
8.2
Project’s Environmental, Socio-economic and, where relevant,Health Policies and Commitments, legal requirements andinstitutional arrangements
8.3
Summary of Impacts and Mitigation Measures
8.4
Overall budget for implementation of the EMP
8.5
Management and Monitoring Sub-Plans by Project phase (preconstruction, construction, operation, decommissioning,closure and post-closure); the Management and Monitoring
Sub-Plans shall address and satisfy all relevant environmental
and social management and monitoring issues such as but notlimited to noise, vibrations, waste, hazardous waste,
wastewater and storm water, air quality, odor, chemicals, water
quality, erosion and sedimentation, biodiversity, occupationaland community health and safety, cultural heritage,
employment and training, and emergency response
8.6
Content of each Sub-Plan
8.6.1
Objectives
8.6.2 Legal Requirements
8.6.3 Overview maps and site layout maps, images, aerial
photos, satellite images
8.6.4 Implementation Schedule
8.6.5 Management Actions
8.6.6 Monitoring Plans
8.6.7 Projected Budgets and Responsibilities
Public Consultation and Disclosure
9.1 Methodology and Approach
9.2 Summary of consultations and activities undertaken
9.3 Results of Consultations93	
  9.4 Further ongoing Consultations
9.5 Disclosure

	
  

94	
  

Kingdom of Thailand
Introduction	  The first mandatory provisions for EIA in Thailand were issued in 1975. By
Section 46 of the Enhancement and Conservation of Nation of National
Environmental Quality Act 2535 (1992) (NEQA 1992), The Ministry of Natural
Resources and Environment (MONRE), with the approval of the National
Environment Board (NEB), has the power to specify the type and size of
projects or activities requiring an EIA.
••••

National Environmental Quality Act 2535 (1992)
Notification on EIA 2555 (2012) MONRE
Notification of the Ministry of Natural Resources and Environment on
measures and procedures of EHIA B.E. 2552 (2009)
Decree of EHIA 2553 (2010)

The Constitution of the Kingdom of Thailand, B.E. 2550 (2007) contains legal
principles on environmental rights, such as assembly rights of a local community
to protect the sustainable use of natural resources and biodiversity,222 rights ofaccess into public information owned by the state,223 public hearing rights inenvironmental management224 and standing to sue state and an administrative
agency responsible for environmental protection. 225 The Constitution also
regulates the rights and duties of people, a group of people, and privateorganizations in environmental protection.226
Under Article 67, any projects and activities which may cause severe adverse
impacts to the community with respect to environmental quality, natural
resources and health are required to prepare Environmental and Health Impact
Assessment (EHIA).227 The types of projects and activities which are required toprepare EHIA are issued in the Ministerial Notification of MONRE. Article 87
sets out the directing principles for environmental policy.228
Constitution of the Kingdom of Thailand (2007)
Article 56:
A person shall have the right to know and have access to public data or
information in possession of a Government agency, a State agency, a State
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
222

Kingdom of Thailand, Constitution of the Kingdom of Thailand (adopted 2007), Article 66,
available at: https://www.unodc.org/tldb/pdf/Thailand_const_2007.pdf [hereinafter Thai
Constitution (2007)].
223
Thai Constitution (2007), Article 56.
224
Thai Constitution (2007), Article 57.
225
Thai Constitution (2007), Article 60.
226
The 2007 Constitution was abrogated on 22 May 2014.
227
Thai Constitution (2007), Article 67.
228
Thai Constitution (2007), Article 87.

	
  

95	
  

enterprise or a local government organisation, unless the disclosure of suchdata or information shall affect the security of the State, public safety orinterests of other persons which shall be protected or purport to be personaldata, as provided by law.229
Article 57:
A person shall have the right to receive data, explanations and reasons from a
Government agency, a State agency, a State enterprise or a local governmentorganisation prior to the approval or the operation of any project or activity
which may affect the quality of the environment, health and sanitaryconditions, the quality of life or any other material interest concerning such
person or a local community and shall have the right to express his or her
opinions to agencies concerned, for assisting further consideration of suchmatters.230
In planning social, economic, political and cultural development, or inundertaking expropriation, town and country planning, zoning and making
bylaws likely to have impacts on essential interests of the public, the State
shall cause to be held comprehensive public hearings prior thereto.
Article 58:
A person shall have the right to participate in the decision-making process ofState officials in the performance of administrative functions which affect or
may affect his or her rights and liberties.231
Article 66:
Persons so assembling as to be a community, a local community or a
traditional community shall have the right to conserve or restore theircustoms, local knowledge, good arts and culture of their community and of
the nation and participate in the management, maintenance, preservation andexploitation of natural resources, the environment and the biological diversity
in a balanced and sustainable fashion.232
Article 67:
The right of a person to give to the State and communities participation in theconservation, preservation and exploitation of natural resources and biologicaldiversities and in the protection, promotion and preservation of the quality ofthe environment for regular and continued livelihood in the environment
which is not hazardous to his or her health and sanitary condition, welfare or
quality of life, shall be protected as appropriate.233

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
229

Thai Constitution (2007), Article 56.
Thai Constitution (2007), Article 57.
231
Thai Constitution (2007), Article 58.
232
Thai Constitution (2007), Article 66.
233
Thai Constitution (2007), Article 67.
230

	
  

96	
  

Any project or activity which may seriously affect the community with respect
to the quality of the environment, natural resources and health shall not be
permitted, unless, prior to the operation thereof, its impacts on the quality ofthe environment and on public health have been studied and assessed and apublic hearing process has been conducted for consulting the public as well asinterested persons and there have been obtained opinions of an independent
organisation, consisting of representatives from private organisations in thefield of the environment and health and from higher education institutions
providing studies in the field of the environment, natural resources or health.
The right of a community to bring a lawsuit against a Government agency, aState agency, a State enterprise, a local government organisation or otherState authority which is a juristic person for the performance of duties under
this provision shall be protected.
Article 85:
The State shall implement the land, natural resources, and environment policy
as follows:(1) To set the principles of land use nationwide and to keep in mind theconformity to the natural environment be it land, water, ways of life of
local community and the effective preservation and maintenance of
natural resources, and to set standards on sustainable land use whichallow people in the area affected by the implementation of that land
use principles to participate in decision making process;(2) To distribute the ownership of land equitably and take action to allow
farmers have ownership or right on agricultural land throughout by land
reform or other methods and to provide water sources to the farmer for
their sufficient and proper use to suit their agriculture;(3) To provide effective town planning develop, and carry out the town
planning with efficiency and effectiveness for the sake of the sustainable
preservation of natural resources;(4) To provide the plan to manage water resources and other natural
resources systematically for public interest, including to allow people toparticipate in preservation, maintenance and exploitation of natural
resources and biological diversity in a well-balanced manner; and(5) To support, maintain and protect the equality of environment undera sustainable development, as well as to control and eliminate pollution
which affect to people's health, well-being, and quality of life of thepeople by allowing the people, local communities, and administrative
organization to participate in formulating of the operation plan.234

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
234

	
  

Thai Constitution (2007), Article 85.

97	
  Part 4 of NEQA 1992 establishes the EIA system for Thailand. The assessment
procedure established under Part 4 depends on whether or not a projectrequires Cabinet approval.
National Environmental Quality Act (1992)
Section 46:
For the purpose of environmental quality promotion and conservation, theMinister shall, with the approval of the National Environment Board, have thepower to specify, by notification published in the Government Gazette types
and sizes of projects or activities, likely to have environmental impact, of any
government agency, state enterprise or private person, which are required toprepare reports on environmental assessment for submission to seek
approval in accordance with section 47, section 48 and section 49.235
Under Section 47, in the case of a project or activity that is required to prepare
an EIA and which requires the approval of the Cabinet, the EIA Report is lodged
with MONRE and then submitted to the NEB for its review and comments. The
Report is then submitted to the Cabinet for consideration. A project that does
not require approval from the Cabinet is covered under Section 48.
National Environmental Quality Act (1992)
Section 48:
In case the project or activity which is required by section 46 to prepare theenvironmental impact assessment report is the project or activity which is
required by law to obtain permission prior to construction or operation, theperson applying for the permission shall have the duty to file theenvironmental impact assessment report with the permitting authority undersuch law and with the Office of Environmental Policy and Planningsimultaneously. The report to be filed as aforesaid may be made in the formof an initial environmental examination (I.E.E.) in accordance with the rules
and procedures determined by the Minister pursuant to section 46, second
paragraph.
The official who is legally authorized to grant permission shall withhold the
granting of permission for the project or activity referred to in the firstparagraph until having been notified by the Office of Environmental Policy
and Planning of the result of consideration pertaining to the review of theenvironmental impact assessment report in accordance with section 49.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
235

Kingdom of Thailand, The Enhancement and Conservation of National Environmental Quality
Act, B.E. 2535 (adopted 29 Mar. 1992), Section 46, available at:
http://www.pcd.go.th/info_serv/en_reg_envi.html [hereinafter Thai NEQA (1992)].

	
  

98	
  

The Office of Environmental Policy and Planning shall examine theenvironmental impact assessment report and related documents filed
therewith. If it is found that the report as filed is not correctly made inaccordance with the rules and procedures specified by virtue of section 46,
second paragraph, or the accompanied documents and data are incomplete,
the Office of Environmental Policy and Planning shall notify the person
applying for permission who files the report within fifteen days from the dateof receiving such report.
In case the Office of Environmental Policy and Planning finds that theenvironmental impact assessment report together with related documents as
filed is duly made and completed with the data as required, or has been duly
amended or modified in accordance with the foregoing third paragraph, it
shall review and make preliminary comments on the report within thirty days
from the date of receiving such report in order that the report together withthe preliminary comments shall be referred to the committee of experts forfurther consideration.
The appointment of the committee of experts according to the foregoing
fourth paragraph shall be in accordance with the rules and procedures
determined by the National Environment Board. The committee shall becomposed of expert members who are qualified or specialized in various
fields of related disciplines and the authority legally competent to grant
permission for the given project or activity under review, or its representative,
shall be included in its membership.236
The Office of National Resources and Environmental Policy and Planning(ONEP) is the main agency responsible for the administration of the Thai EIA
system, including the development of EIA system and EIA review process.
ONEP is responsible for reviewing and making proposals on types and sizes ofprojects or activities for which EIA is required as well as rules and regulations
for the preparation of EIA reports to the National Environment Board (NEB) for
approval, the development of guidelines for the preparation of EIA reports forvarious types of projects or activities, and the registration of EIA consulting
firms.
There are currently 35 types of projects that require an EIA and 11 types ofprojects that require an EHIA.
Other lines agencies grant the permission for construction or operation of the
projects or activities after they have been notified by ONEP of the result of EIA
approval. Permitting agencies shall stipulate the conditions of permission,
including all mitigation measures and comments of the Expert Review
Committee (ERC) included in the approved EIA.
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
236

	
  

Thai NEQA (1992), Section 48.

99	  ONEP also acts as the Secretariat for the ERCs that are responsible for thereview and assessment of EIAs and EIA. There are 15 ERCs currently
established.237
EIA Reports are submitted to ONEP for a preliminary review. ONEP has 15 days
for this review. Any incomplete EIAs are referred back to the EIA consultant tomake amendments. Once the EIA is resubmitted, ONEP then has 15 days for apreliminary assessment of the documentation. Following this step, the EIA must
be referred to an ERC for assessment. The ERC has 45 days to review the EIA.
If approved, the EIA is then sent to other permitting agencies, which will grant
the appropriate permits subject to the recommendations of the ERC.
Projects that require Cabinet approval are referred by ONEP, together with allcomments, to the National Environmental Board, before referral to Cabinet.
For monitoring, reports must be submitted to ONEP and the permitting body
twice per year. These are placed on the ONEP website and are publicallyavailable
The disclosure of information is governed by the Official Information Act(1997).238 Persons requesting information are entitled to be provided with the
EIA Report, the EHIA Report and the assessments of the Report, anycomments, the EMP and monitoring report. It is not clear if all this information
is provided during the process when it becomes available or after theconclusion of the process, when the project has been approved. 239

Procedure for EIA and EHIA	  The EIA procedure in Thailand adheres to the following process with the maindifferences in the process occurring after the EIA Report is submitted to ONEP.
1.
Screening;2.
Scoping and development of ToR;
3.
Preparation of EIA – by EIA Consultant;4.
Submission of EIA Report to ONEP;
5.
Assessment of EIA – by ERC;
6.
Assessment of HIA – by ERC;
7.
Approval by MONRE or Cabinet;
8.
Referral to other line agencies for permits; and9.
Monitoring and compliance.
NEQA 1992 does not have any provisions on public participation andinformation disclosure with respect to EIA. 240 Section 6 provides rights forparticipation and access to information in general matters of environmental
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
237

IGES, 2016, p.71.
Kingdom of Thailand, Official Information Act, B.E. 2540 (adopted 2 Sept. 1997), available at:
http://www.oic.go.th/content/act/act2540eng.pdf.
239
IGES, 2014, p.73.
240
See Thai NEQA (1992).
238

	
  

100	
  

conservation.241 The primary basis for public participation in Thailand has been
by reliance on the Constitutional provisions.
The 2007 Guidelines prepared by MONRE provide that a project is required tohold public participation at least twice. This will occur at the start of the
preparation of the EIA Report for the public to review the ToR of the project
and the scope of the study, and during the preparation of the draft EIA Report,
including the proposed prevention and mitigation measures. In the case of a
project requiring an EHIA, the Guidelines require four public meetings.
A project has to disclose information at the office of local authorities, projectsite and communities, in accordance with the Prime Minister’s Office Rule on
Public Hearing (2005) and consist of at least the following information:• Rationale and objectives of the project;• Main points of the project;• Project proponent;• Project site;• Products and outcomes of the project, including positive benefits thateach stakeholder group will receive from the project;• Negative impacts that might happen to the people living or working inarea and neighbouring areas of the project site and general public
including prevention, mitigation and remediation measures; and• The estimated project cost.
Five steps and corresponding tasks of the EIA process are established andpublic participation is included, although not clearly defined.
1.
Screening comprises of initiation of the project, site evaluation andlocal authorities involvement;
2.
Scoping comprises of site selection, scope of EIA and public andstakeholders’ involvement;
3.
Report preparation comprises of consultant selection, draft report
preparation and data acquisition/public input/opinion;
4.
EIA review comprises of final report preparation, EIA expert panel
review for private project submitted to permitting authority, forgovernment project submitted to National Environmental Board andto the Cabinet; and5.
Monitoring comprises of project owner submitted report, follow–up
by permitting authority and monitoring by a third–party.

Assessment of EIA Reports	
  Figures 1 and 3 below show the procedures for the assessment of projects that
do not require the approval of the Cabinet once they have been submitted to
ONEP. The additional steps for those projects that may have a significant
impact on human health. This is a specific feature of the Thai EHIA process. In
all other jurisdictions the requirements for health impact assessment falls under
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
241

	
  

Thai NEQA (1992), Section 6.

101	
  

the general EIA requirement.

	
  

102	
  

	
  

103	
  

Guidelines for preparation of the EIA Report for a project or activity which may
seriously affect a community with respect to quality of environment, natural
resources and health were issued by ONEP (2008).
The EIA must also include:• Summary report containing description, location and alternative locationand operational method of the project or activity report on impact which
may significantly affect the environment, protection and remedy thereof
and investigation and examination of environmental impact andconclusion; and• The main report contains introduction, location of the project or activity,
description, existing environmental conditions and evaluation of thealternatives, measure for protection and remedy of environmental
impact and compensation and summarizing table.

Table. Guideline for preparing the environmental impact assessment (EIA)
report
1.
1.1

1.2

	
  

Main element
Executive summary comprises the main following issues:
1.1.1 Type and size of the project including all related activities
1.1.2 Site of the project showing photos and map of the site
showing environmental surroundings which may be affectedfrom the project. Scale of map shall be 1: 50,000 or as
appropriate.
1.1.3 Alternative options of the project site and the project
implementation methodology (reasons and justifications)1.1.4 Report describing important impact to environment,
mitigation and monitoring measure in compliance with a Sor
Por 1 Form attached with this Notification.
Main report comprises the important following issues:
1.2.1 Introduction: introducing background, objective andjustification of the project, including objective, scope andmethodology of the EIA report.
1.2.2 Site of the project: presenting photo and map of the site
showing environmental surroundings which may be affectedfrom the project. Scale of map shall be 1: 50,000 or as
appropriate.
1.2.3 Project detail: describing a clear detail on overview of the
project such as type and size of the project, project
implementation methodology, or related activities, as well aslayout of land utilization of the project showing inappropriate scale and direction.
1.2.4 Present environmental condition: describing detail andphotos of natural resources and environment in both
physical and biological aspects by classifying to capacity ofrehabilitation and non-rehabilitation; human use value;104	
  quality of life value; as well as describing current problems
around the site together with showing photos ofsurrounding area; and utilization of land around the site andother areas that may be affected from the project in shortterm and long term.
1.2.5 Evaluation of alternative option for implementing the projectand evaluation of impact may cause by the project.
(1) Alternative option for implementing the project: theEIA report shall describe alternative option, which may
be an option for the project site or the project
implementation methodology. Every proposed option
shall be in line with objective and shall describe reasons
addressing to the project’s goal and necessity either the
project exists or non-exists. Mitigation measure shall be
proposed in each option. The most suitable option andjustification of the project shall be identified.
(2) Evaluation of environmental impact: evaluation ofenvironmental impact, both direct and indirect to natural
resources and environment and to all values mentioned
in 1.2.4, which is classified to rehabilitation and nonrehabilitation, caused by the project shall be conducted.
Impact that maybe caused by each proposed option
shall also be evaluated and compared.
1.2.6 Mitigation and compensation measure: detail of mitigation
measure causing by 1.2.5 and compensation measure in caseof unavoidable damages shall be described.
1.2.7 Monitoring measure: environmental monitoring plan, which istechnically and practically suitable for the project, shall be
proposed. This monitoring plan will be used for the project’s
post monitoring and evaluation.
1.2.8 Table summarizing important impact to environment andmitigation measure EIA report shall be conducted on thebasis of public participation, social environmental impact
assessment, and health impact assessment.
The review process under the EIA Procedures is carried out by an Expert
Review Committee. Other than that including private projects and activities, theEIA report has to be reviewed and approved by the Expert Review Committee(ERC) appointed under the NEB prior to obtaining the permit for construction
or operation from a legally authorized permitting agency. The ONEP of
MONRE is charge of EIA, coordinating with permitting agencies and theSecretariat of the committee of experts.
The Thailand Board of Investment produced an Investment Guide on
Environmental Regulation in 2014 (BOI 2014) provides details on the types ofprojects required EIA and EHIA including the content of the relevant reports

	
  

105	
  

and the processes followed by ONEP. However it does not refer to any details
on public participation.

Public Participation	  It is a requirement that all stakeholders must have a chance to participate in the
EIA or EHIA process. Twenty groups of stakeholders were identified as follows:• Local communities which would be impacted;• Project owners;• Expert panels at the central government;• Local expert panels;• Regional and/or Provincial natural resources;• Monitoring agencies;• Local authority for natural resources;• Local administrative offices;• Independent environmental organizations;• Educational institutions;• Civil Society organizations;• Media;• National Environmental Board;• ONEP;• EIA consultants;• Concerned citizens;• General public;• Regional government offices;• Permitting authorities; and• The Cabinet.
The level of participation is divided into four levels for each type of stakeholder
and at various steps in the EIA process (depending on the nature of the projects
and public participation needs). The four levels are:1.
Informed/public disclosure;2.
Consulted/public hearing;
3.
Involved in making decision/public committee; and4.
Voted/public consensus.242
During the EHIA process for those projects that may have a significant impact
of human health a four stage public participation process is adopted. The
following table highlights the four “kor” or consultations required. These
consultations are not necessarily public consultations and could include small
stakeholder or expert meetings.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
242

	
  

Pantumsinchai (2003).

106	
  

	
  

Recent Developments	  The National Council for Peace and Order (NCPO) has been pursuing adecentralization agenda. The review process by an ERC can now be delegatedto the provincial level. It is not clear from the process how the review process
will be carried out at the provincial level. It is not clear if the provincial level
review committees will need to be certified by ONEP and how the licensing andfurther approval process will undertaken.
Thailand’s EIA system is currently being reviewed as part of the reform agendaof the government. In 2016, the National Council for Peace and Order also
passed Order No. 9/2016, which amended Section 47, paragraph 4 of the
NEQA. It is now possible for projects related to transportation, irrigation, public

	
  

107	
  

rescue and protection, hospital and residential development to enter into
construction contacts prior to the approval of an EIA.
The NCPO also used the emergency power to promulgate Orders 3/2016 and4/2016. These orders allowed certain projects, such as Special Economic Zones,
to avoid the planning law of Thailand. MONRE has amended the regulations
that only power projects from 10 MW for biomass would require an EIA. If thepower project was based on waste or garbage, then no EIA is required.

	
  

108	
  

Socialist Republic of Viet Nam	
  Introduction	  The Law of Environmental Protection was introduced in 1994 and was thenupdated with the Law on Environmental Protection (2005). In June 2014, theNational Assembly passed the Law on Environmental Protection (2014) (LEP2014), 243 which updated and replaced the Law on Environment Protection
2005.
•
•
•

•

•

•

Law on Environmental Protection (2014)
Decree on the Implementation of the LEP 2014 No 19/2015/ND-CP
Decree on Environmental Protection, Strategic Environmental
Assessment, Environmental Impact Assessment and Environmental
Protection Plans No. 18/2015/ND-CP
Circular on Environmental Protection, Strategic Environmental
Assessment, Environmental Impact Assessment and Environmental
Protection Plans No. 27/2015/TT-BTNMTCircular providing guidance on SEA Appraisal, EIA Appraisal in the
Ministry of Agriculture and Rural Development No 09/2014/TTBTNMT
Decision of the regulation on the condition and provision of services ofappraising EIA Reports No 19/2007/QD-BTNNTThe Ministry of Natural Resources and Environment (MONRE) was establishedin 2002 to manage Viet Nam’s natural resources and environment. 244 The
National Environmental Administration of MONRE helps to manage national
environmental protection activities throughout Viet Nam and there are
Departments of Natural Resources and Environment for the provinces and thefive cities under central government administration.245
The Constitution of Viet Nam outlines the major elements of Viet Nam’s
government structure and responsibilities. Relevant to the issues of public
participation in EIAs are Articles 2 and 14, which deal with human rights andcitizens’ rights. Article 30 also provides for a right to lodge complaints withcompetent agencies, organizations or persons for the illegal acts of agencies,
organizations or individuals.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
243

Socialist Republic of Viet Nam, Law on Environmental Protection, Số: 55/2014/QH13(adopted 23 June 2014), available at: https://luatminhkhue.vn/en/law/law-no-55-2014-qh13dated-june-23--2014-of-the-national-assembly-on-environmental-protection.aspx [hereinafter
Vietnamese LEP (2014)].
244
ABA (2014) p.812.
245
ABA (2014), p.812.

	
  

109	
  

Constitution of Viet Nam (2013)
Article 43:
Everyone has the right to live in a clean environment and has the obligation toprotect the environment.
Article 53:
Land, water resources, mineral resources, resources in the sea and airspace,other natural resources, and property managed or invested in by the State are
public property, owned by all the people, and represented and uniformly
managed by the State.
Article 63:(1) The State shall adopt environmental protection policies; manage and use
natural resources in an efficient and sustainable manner; conserve nature andbiodiversity; and take the initiative in preventing and controlling natural
disasters and responding to climate change.
(2) The State shall encourage all activities for environmental protection andthe development and use of new energy and renewable energy.
(3) Organisations and individuals that cause environmental pollution, natural
resource exhaustion or biodiversity depletion shall be strictly punished andshall rectify and compensate for damage.
The LEP 2014 defines EIA:
Environmental impact assessment means analysis and forecast of impacts on
the environment to be exerted by specific investment projects so as to workout measures to protect the environment when such projects are
implemented.246
Article 3 of LEP 2014 outlines the requirements for SEA, EIA and EPP in Viet
Nam for designated projects.247 Article 19 provides that owners of projects
must prepare EIAs. 248 These must be submitted to the competent stateagencies for approval and must be formulated at the same time at the feasibility
study reports of the projects. The principal contents of an EIA are outlined in
Article 22.249

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
246

Vietnamese LEP (2014), Article 3.
Vietnamese LEP (2014), Article 3.
248
Vietnamese LEP (2014), Article 19.
249
Vietnamese LEP (2014), Article 22.
247

	
  

110	
  

Law on Environmental Protection (2014)
Article 18. Objects subject to environmental impact assessment:(1) The following objects are subject to environmental impact assessment:(a) Projects falling under the competence of the National
Assembly, Government or Prime Minister to decide on investment
policy;(b) Projects using land of nature reserves, national parks, historicaland cultural relic sites, world heritages, biosphere reserves orbeautiful landscapes which have been ranked;(c) Projects likely to exert adverse environmental impacts.
(2) The Government shall promulgate a list of projects mentioned at Points b
and c, Clause 1 of this Article.250
Article 19. Environmental impact assessment:(1) Owners of projects specified in Clause 1, Article 18 of this Law shallconduct environmental impact assessment or hire consultancy organizations
to do so and take responsibility before law for results of environmental impact
assessment.
(2) Environmental impact assessment shall be conducted in the stage of
project preparation.
(3) Results of environmental impact assessment shall be expressed in theform of environmental impact assessment report.
(4) Expenses for the elaboration and appraisal of environmental impact
assessment reports shall be paid from by investment capital sources by
project owners.251
Consultation during the EIA process is required under LEP 2014, but only refers
to communities that are directly affected by the project. 252 However, theprocedures can be confusing as the role of MONRE is not clear when it comesto scoping, screening and preparation of the EIA Report.
Under Article 21(1) of LEP 2014, project owners are required to consult with“regulatory agencies, organizations and communities that are directly affectedby the project.”253 The result of the consultation is then to be included in the EIA
Report.254

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
250

Vietnamese LEP (2014), Article 18.
Vietnamese LEP (2014), Article 19.
252
Vietnamese LEP (2014), Article 21.
253
Vietnamese LEP (2014), Article 21(1).
254
Vietnamese LEP (2014), Article 22(8).
251

	
  

111	
  

Law on Environmental Protection (2014)
Article 21. Consultation in the course of environmental impact
assessment:(1) Consultation in the course of environmental impact assessment aims to
finalize environmental impact assessment reports, minimize adverse impacts
on the environment and human beings and ensure sustainable developmentof projects.
(2) Project owners shall consult agencies, organizations and communities thatare directly impacted by projects.
(3) Projects for which consultation is not required include:(a) Projects conformable with the planning of concentrated
production, business or service zones which have had theirenvironmental impact assessment reports approved for the stage ofinfrastructure construction investment;(b) Projects on the list of state secrets.255
The LEP 2014 imposes an obligation on the project owner to carry out an EIA
and to take “statutory responsibility for the conclusive result after carrying out
such assessment.”

Procedure for EIA	  The LEP 2014 requires EIAs to be prepared at the time of the project’s
feasibility study. One important aspect of the EIA process in Viet Nam is that
MONRE is not formally involved in the screening and scoping steps and does
not approve the ToR for the EIA. The first time that MONRE may becomeaware of a proposed development project is when the EIA is submitted to it
under Article 23.256 Viet Nam has the most comprehensive process for SEA in
any of the ASEAN countries.
The Decree on Environmental Protection, Strategic Environmental Assessment,
Environmental Impact Assessment and Environmental Protection Plans No.
18/2015/ND-CP (Decree 18/2015) and Appendixes I and II provide the list of
projects requiring an SEA or EIA. This replaced a number of decrees relating to
the previous regime on EIA. In addition MONRE has issued 22 EIA Technical
Guidelines for various sectors.257
With regard to large infrastructure development, in particular hydropower,
mining and economic land concessions, all of these would in theory be covered
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
255

Vietnamese LEP (2014), Article 21.
Vietnamese LEP (2014), Article 23.
257
IGES (2016), p.74.
256

	
  

112	
  

by the requirement to conduct an SEA. In addition, an EIA would be required for
projects falling into the following categories:• Projects in which investment is decided by the National Assembly or
Prime Minister;• Hydropower project with a capacity of more than 1 MW;• Oil and gas projects;• Mineral exploitation with a annual volume of more than 50,000 m3; and• Projects involving relocation and resettlement of more the 300 houses.
Economic land concessions are not specifically listed in Appendix II, but projects
that change the use of forest areas or areas under two rice crops per year withan area of 10 – 50 ha (depending on type of forest) will require an EIA.
Investment projects not requiring an EIA require an Environmental Protection
Plan (EPP).258
The contents of the EIA Report are outlined in Article 22 of LEP 2014.
Law on Environmental Protection (2014)
Article 22. Principal contents of an environmental impact assessment
report:(1) Origin of the project, project owner and agency competent to approve theproject; method of environmental impact assessment.
(2) Assessment of selected technologies, work items and activities of the
project which may exert adverse impacts on the environment.
(3) Assessment of the status of the natural environment and socio-economic
conditions of the locality in which the project is to be implemented, and ofneighboring areas, and explanation about the suitability of the selected
project implementation location.
(4) Assessment and forecast of waste sources and impacts of the project on
the environment and community health.
(5) Assessment and forecast of and determination of measures to manage
risks of the project to the environment and community health.
(6) Waste treatment solutions.
(7) Measures to mitigate impacts on the environment and community health.
(8) Consultation results.
(9) Environmental management and surveillance program.
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
258

	
  

LEP 2014, Article 29.

113	
  

(10) Estimated costs of construction of environmental protection facilities andimplementation of measures to mitigate environmental impacts.
(11) Plan on implementation of environmental protection measures.259

Figure: EIA Procedure in Viet Nam (IGES (2014), p.77)
Once the EIA is submitted to MONRE, it is assessed by either MONRE or the
relevant provincial-level committee, subject to certain exceptions. Article 25 of
LEP 2014 provides that the assessment of the EIA must be undertaken within
20 days of any final modification of the EIA.260 This allows for comments to bereferred back to the EIA consultant and for the EIA Report to be amended by
the project proponent.
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
259
260

	
  

Vietnamese LEP (2014), Article 22.
Vietnamese LEP (2014), Article 25.

114	
  

Article 23 of the LEP 2014 lists the projects for which MONRE has the authority
to determine the EIA Report. This is further clarified by Article 14 of Decree
18/2015. Appendix II of Decree 18/2015 provides the list of projects andactivities that are subject to EIA. Appendix III of Decree 18/2015 lists the
projects for which MONRE is the EIA approval authority. Other investment
projects are assessed and approved by the relevant Ministry, the Ministry of
National Defense and the Ministry of Public Security (for national defense
projects) and all other projects are assessed and approved by the provincial
People’s Committee.
Article 25 of LEP 2014 makes clear that other investments licenses andconstruction and operation permits may be granted only after EIA Reports havebeen approved.261 Article 27 of LEP 2014 sets out the responsibilities of the
project proponent to implement the environmental protection requirements inthe EIA Report.262
Law on Environmental Protection (2014)
Article 25. Approval of environmental impact assessment reports:(1) Within 20 days after receiving an environmental impact assessment reportwhich has been modified at the request of the appraising agency, the head of
the appraising agency shall approve such report. In case of refusal to approve
the report, he/she shall send a written reply to the project owner, clearlystating the reason.
(2) Decisions on approval of environmental impact assessment reports serve
as a basis for competent authorities to:(a) Decide on investment in projects specified in Article 18 of this
Law in case these projects are subject to investment decision inaccordance with law;(b) Grant or modify licenses for mineral exploration or exploitation
for mineral exploration and exploitation projects;(c) Approve exploration and field development plans for oil and gas
exploration and exploitation projects;(d) Grant or modify construction permits for projects having
construction work items subject to construction licensing;(dd) Grant investment certificates for projects other than thosespecified at Points a, b, c and d of this Clause.263

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
261

Vietnamese LEP (2014), Article 25.
Vietnamese LEP (2014), Article 27.
263
Vietnamese LEP (2014), Article 25.
262

	
  

115	
  

Previously, projects were allowed to commence operation only after the local
commune had been informed of the approval and the contents of the EIA, thelocal population community had been publically informed on the environmental
protection solutions and pollution discharge limits and that the EIA Report andconditions and the environmental protection measures have been fully
implemented. 264 This has been removed from the requirements under LEP
2014.
The EIA approving authorities are also required to notify the Commune andPeople’s Committees of the EIA approval and the content of the approval.
There is no specific requirement that these documents, or the EIA documents
themselves are public documents. There is also a requirement that certain
projects not requiring SEA or EIA are required to make written environment
protection commitments.265

Compliance and Enforcement	
  Project proponents are required to comply with the terms of the EIA Approval
and also any other conditions imposed by other licensing Ministries. Project
proponents are also required to provide information to the communities inaccordance with the provision of the LEP 2014, the Decree 18/2015 and otherlaws.
Article 26. Responsibilities of project owners after environmental impact
assessment reports are approved:(1) To fulfill requirements of decisions on approval of environmental impact
assessment reports.
These responsibilities are further detailed in Articles 12 and 16 of Decree
18/2015. The EIA consultant takes “legal responsibility for the EIA results.” Theproject proponent also has other detailed obligations listed in Article 16.
Decree on Environmental Protection, Strategic Environmental
Assessment, Environmental Impact Assessment and Environmental
Protection Plans No. 18/2015/ND-CP (2015)
Article 12. Implementation of EIA:
(3) The advisory organization in charge of EIA shall take responsibility to theproject owner and take legal responsibility for the EIA results and informationor figures in the EIA report.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
264
265

	
  

LEP 2005 Article 23.1
LEP 2014, Articles 29 and 33.

116	
  

Article 16. Responsibility of project owners pertaining to the approved
EIA reports:(1) Adjust the investment project to ensure measures or environment
protection works based on the approval for EIA report where necessary.
(2) Make a plan for management of environment of project on the basis ofprogram for management and observation of environment suggested in the
EIA report and posted at the premises of the People’s Committee of thecommune where the consultation is taken place when implementing EIA
according to guidance of the Ministry of Natural Resources and Environment.
(3) Strictly satisfy requirements prescribed in Article 26 and Article 27 of the
Law on Environment protection.
(4) Send plans for testing operation of waste treatment works serving theoperation phase (every phase or the entire project) before conducting thetesting operation to organizations where the consultation is taken place or
EIA report-approving authority (hereinafter referred to as approving
authority) for at least ten (10) working days. The testing operation shall last up
to 06 months; the extension of testing operation period must be approved by
the approving authority.
(5) File, approve and implement the plan for hydroelectric reservoir cleaning
before filling if the project has construction work of storage ponds orreservoirs; the reservoirs shall be filled after the approving authority carries
out an inspection and grant a written approval.
(6) With regard to cases prescribed in column 4 Appendix II of this Decree,
the project owner must send a report on results of environment protection
works serving the operation phase on the basis of approved EIA report andapproval for amendment (if any) sent to the approving authority forverification and confirmation of finished project before putting the project
into official operation. With regard to project of investment having multiple
phases, the results of environment protection works serving the operation
phase shall be reported according to every phase of the project.
(7) Send a report on amendments and only implement amendments related
to scope, scale, capacity, production technology, environment protection
works and measures of projects after receiving the written approval issued by
the approving authority.
The projects listed in Column 4 of Appendix II of the Decree mainly relate tothose projects that would be likely to have detailed EMPs and pollution control
works. These need to be verified before the operation of the project cancommence.
Environmental management issues have to be addressed in EIA Reports and
	
  

117	
  

the project proponent is required to prepare an Environmental Management
and Monitoring Program (EMMP). This EMMP is required to document theelements of an environmental management plan including budget forenvironmental management activities and requirements for institutionalarrangements.
The LEP 2014 provides that projects and activities required to undertake an EIA
shall report their environmental information to environmental management
agencies. Articles 130 and 131 require certain environmental information to bemade public, including EIA Reports, SEA Reports and EPPs. However it is notclear if the draft EIAs and supporting information including EMPs are to bemade available prior to approval of the project.
Law on Environmental Protection (2014)
Article 128. Environmental information:(1) Environmental information includes data on environmental components,
impacts on the environment, environmental protection policies and laws, andenvironmental protection activities.
(2) Environmental database means a collection of environmental information
which is developed, updated and maintained to meet requirements on
information access and use for environmental protection and public
interests.266
Article 130. Publicization and provision of environmental information:(1) Organizations and individuals that manage industrial parks, export
processing zones, hi-tech parks, industrial complexes or production, businessand service establishments obliged to make environmental impact assessment
reports shall report environmental information under their management toenvironmental management agencies under provincial-level People’s
Committees.267
Article 131. Publicization of environmental information:(1) Environmental information to be publicized includes:(a) Strategic environmental assessment reports, environmental
impact assessment reports and environmental protection plans;(b) Information on waste-generating sources, wastes and waste
treatment;(c) Seriously or particularly seriously polluted or degraded areas,
and areas prone to environmental incidents;

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
266
267

	
  

Vietnamese LEP (2014), Article 128.
Vietnamese LEP (2014), Article 130.

118	
  

(d) Environmental reports;(dd) Environmental protection inspection and examination results.
The information prescribed in this Clause but on the list of state secrets shallnot be publicized.
(2) The forms of publicization must ensure convenience for information
recipients.
(3) Agencies publicizing environmental information shall take responsibility
before law for the accuracy of such information.268
Decree 19/2015 also requires the following provision of environmental
information to the community.
Decree on the Implementation of the LEP 2014 No 19/2015/ND-CP(2015)
Article 51. Providing environmental information for the residential
community:(1) The environmental information is provided at least once a year periodically,
including:(a) Legal normative document on environment;(b) Report on the reality of national and local environment;
specialized environmental reports made and publicized by the state
management authorities on natural resources and environment;(c) List of facilities causing severe environmental pollution, areas
with severely polluted or degraded environment, areas prone toenvironmental incidents made and publicized by the state
management authorities on natural resources and environment;(d) List and information on waste sources and types of waste prone
to cause harm to human health and environment prepared andpublicized by the state management authorities on natural
resources and environment;(dd) Publications and printed matters on environmental themes andenvironmental communication materials and relevant issues;(e) Result of inspection, examination and handling of violation of theservices, business and production facilities in the residential area;(g) Environmental protection activities of the services, business and
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
268

	
  

Vietnamese LEP (2014), Article 131

119	
  

production facilities in the residential area;(h) License related to the extraction, use and protection of natural
resources and environment of the services, business and production
facilities in the residential area.

Public Participation	  Previously, Article 20.8 of LEP 2005, required the opinions of thecommune/ward or townships People’s Committee and representatives of the“population communities” in the project location, including opinions against the
project location or environmental protection and mitigation measures to be
included in the EIA. However under LEP 2014, consultation is now only requiredwith “agencies, organizations and communities that are directly impacted byprojects.”269
Law on Environmental Protection (2014)
Article 21. Consultation in the course of environmental impact
assessment:(1) Consultation in the course of environmental impact assessment aims to
finalize environmental impact assessment reports, minimize adverse impacts
on the environment and human beings and ensure sustainable developmentof projects.
(2) Project owners shall consult agencies, organizations and communities thatare directly impacted by projects.
(3) Projects for which consultation is not required include:(a) Projects conformable with the planning of concentrated
production, business or service zones which have had theirenvironmental impact assessment reports approved for the stage ofinfrastructure construction investment;(b) Projects on the list of state secrets.270
Article 12 of Decree 18/2015 provides that the written opinions of those
consulted must be “sufficiently and honestly” included in the meeting minutes.
However there is no express requirement for the minutes to be attached to the
EIA report.
Article 12 of Decree 18/2015 also outlines the procedures for consultation
whereby consultation is to occur with communities that are under the direct
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
269
270

	
  

Vietnamese LEP (2014), Article 21.
Vietnamese LEP (2014), Article 21.

120	
  

impact of the project in the form of a “community meeting co-chaired by the
project owner and the People’s Committee of the commune.” There are no
legislative provisions regarding the enforcement of these obligations, andspecifically, there is no statutory mechanism to ensure the accurate disclosureof the environmental impacts of a project (during the community meeting) tothe consulted parties. It is also not clear what information is required at thismeeting.
Decree on Environmental Protection, Strategic Environmental
Assessment, Environmental Impact Assessment and Environmental
Protection Plans No. 18/2015/ND-CP (2015)
Article 12. Implementation of EIA:
(4) The project owner shall consult with the People’s Committee ofcommunes, wards and towns (hereinafter referred to as communes) where
the project is carried out, with organizations or community under the direct
impact of the project; research and receive objective opinions and reasonable
requests of relevant entities in order to minimize the negative effects of the
project on the natural environment, biodiversity and community health.
(5) The People’s Committee of the commune where the project is carried out
and the organizations under direct impact of the project shall be consulted
according to procedures below:(a) The project owner shall send EIA reports to the People’s Committeeof the commune where the project is carried out and organizations
under the direct impact of the project together with the written requests
for opinions.
(b) Within 15 working days, from the date on which the EIA reports
are received, the People’s Committee of the commune and organizations
under the direct impact of the project shall send their responses if they
do not approve the project.
(6) The consultation with the community under the direct impact of the
project shall be carried out in the form of community meeting co-chaired byproject owner and the People’s Committee of the commune where theproject is carried out together with the participation of representatives ofVietnamese Fatherland Front of communes, socio-political organizations,socio-professional organizations, neighborhoods, villages convened by the
People’s Committee of the commune. All opinions of delegates attending themeeting must be sufficiently and honestly stated in the meeting minutes.
(7) The Ministry of Natural Resources and Environment shall provide guidanceon forms of application for EIA report assessment; formulation and issuanceof EIA technical guidance.
Circular 27/2015 also provides some details on the form of the consultation
with the affected commune.
	
  

121	
  

Circular on Environmental Protection, Strategic Environmental
Assessment, Environmental Impact Assessment and Environmental
Protection Plans No. 27/2015/TT-BTNMT (2015)
Article 7. Consultation during the implementation of EIA:
(1) The project owner must carry out the consultation as prescribed in
Clauses 4, 5 and 6 Article 12 of Decree No. 18/2015/NĐ-CP.
(2) The request for consultation sent by the project owner shall use the form
prescribed in Appendix 2.4 of this Circular.
(3) The feedback on request for consultation sent by the consulted agency
shall use the form prescribed in Appendix 2.5 of this Circular.
(4) The meeting minutes of consultation with the community under the direct
impact of the project shall use the form prescribed in Appendix 2.6 of thisCircular.
(5) During the consultation process, the project owner must ensure that therequest for consultation enclosed with the EIA report shall be sent to theconsulted agency.
(6) Deadline for the feedback of the consulted agency is within 15 working
days, from the date on which the request for consultation is sent.
(7) If the project is carried out in at least 02 communes, the project owner
may hold the meeting of consultation with the community under direct impactof the project in each commune or inter-commune.

Monitoring and Compliance	
  LEP 2014 places a strong emphasis on self-monitoring and reporting withregard to EIA compliance. It is the assumed responsibility of the project ownerto “comply with the requests specified in the approval of their environmental
impact assessment.”
Decree 18/2015 requires that environment protection works must be reviewed
and approved prior to operation. This is further detailed in Articles 10, 12 and 13
of Circular 27/2015. There are no details the Decree or Circular 27/2015 thatwould require regular inspections or reporting.

	
  

122	
  

Article 17. Inspection and confirmation of environment protection works
serving the operation phase of projects:(1) The inspection of environment protection works serving the operation
phase of a project shall be carried out by an Inspectorate which is establishedby the Head of the approving authority or by their authorized agency.
The LEP 2014 also allows for the owners of industrial parks to assess andapproved the EIA Report for projects within the industrial park. Article 11 of
Circular 27/2015 provides that the Provincial People’s Committee may
authorise the management board of an industrial park to assess and approve
the EIA report in certain circumstances.
Circular on Environmental Protection, Strategic Environmental
Assessment, Environmental Impact Assessment and Environmental
Protection Plans No. 27/2015/TT-BTNMT (2015)
Article 11. Authorizing the management board of the industrial parks toassess and approve the EIA report:(1) The People’s Committee of the province may authorize the management
board of the industrial parks to assess and approve the EIA report if the
management board of the industrial parks has an office of environment
management and at least 05 employees specialized in environment protection
on the payroll.
(2) The authorization prescribed in Clause 1 of this Article is only applicable toprojects under competence in assessment and approval for the EIA report of
the People’s Committee of the province which are invested to industrial parks
having EIA reports of infrastructure construction projects approved, having
concentrated waste treatment works constructed and having environment
protection works certified by the competent agency as prescribed.
There is still the requirement for MONRE to approve this delegation, and it issubject to reporting requirements under Article 11, Clause 5.
Although not specifically referred to in the EP Law 2015 and the related Decree
and Circular, the community has a right of supervision for investment projects.
This supervision is contained in the relevant circulars from the Prime Minister’s
Office. There are three instruments that may assist the communities in themonitoring and compliance of projects subject to EMPs.
•

•

	
  

The Prime Minister’s Decision No. 80/2005/QD-TTg promulgating theRegulation on Investment Supervision by the Community (justVietnamese version)
Joint Circular No. 04/2006/ TTLT-BKHĐT-UBTUMTTQVN-BTC
detailing Decision No. 80/2005/QD-TTg (just Vietnamese version);

123	
  

•
•

The Minister’s Decree No. 84/2015/ND-CP on supervision, assessmentof investment
The Ordinance No. 34/2007/PL-UBTVQH11 on exercising of democracy
in communes, wards and townships

The basic contents of Decision 80/2005/QD-TTg and Joint Circular 04/2006
allows for those projects to be “supervised” by the community. This defined in
the Decision 80/2005.271(1) Defining investment supervision by the community
Investment supervision by the community is voluntary activities of theresidents within the commune, ward, or town (hereinafter referred to ascommune) meant to monitor, inspect the adherence to regulations on
investment management of relevant entities during the investment process;discover and request competent authorities to deal with violations ofregulations on investment (except for classified projects of the State asprescribed by law).
(2) Scope of investment supervision by the community:(a) Programmes and projects (hereinafter referred to as investment
projects) funded by state budget and not related to national secrets
influences community;(b) Investment projects funded by budget and energy of community
or other budgets directly fund for community;(c) Investment projects funded by other budgets.
The Joint Circular No. 04/2006 also states that all of investment projects in acommune must be supervised by the community.272
Joint Circular No. 04/2006/ TTLT-BKHĐT-UBTUMTTQVN-BTC detailing
Decision No. 80/2005/QD-TTg (2006)(3) Subjects of investment supervision by the community:(3.1) Contents of public supervision of public investment programs/projects,
PPP projects; investment projects using loan capital guaranteed by thegovernment, loan capital secured with state-owned property, land use right,
capital from administration development fund, capital for development ofstate-owned enterprises.
(a) Monitoring, inspection of conformity of the decision on
investment policies, investment decision with socio-economic
development planning, land use planning, relevant planning, and
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
271
272

	
  

Article 1 and 2, Decision No. 80/2005/QD-TTg.
Article 50. Decree No. 84/2015/ND-CP.

124	
  

investment plans within the communes as prescribed by law;(b) Monitoring and inspecting the investor’s adherence toregulations on: land boundaries and land use; detailed site plan,architectural and construction plan; environmental protection, land
clearance, compensation, and relocation plan; investment plan andprogress;(c) Discovery of acts that infringe upon public interests; negative
impacts of the project to the living environment of the community
during the investment stage or operation of the project;(d) Discovery of act of wastefulness that causes loss of capital andproperty of the project;(e) Transparency during the investment process.
(3.2) Contents of public supervision of investment in projects funded by othersources of capital shall comply with Point a, Point b, Point c, and Point dd
Clause 1 of this Article.
(3.3) Contents of public supervision of investment in programmes/projects
having contributions of the public, projects funded by commune budget or
direct sponsorship for communes:(a) The contents as mentioned above;(b) Monitoring, inspection of adherence to technical regulations andprocesses, norms and categories of supplies; monitoring andinspection of acceptance result and financial statement of the
project.

	
  

125	
  

Transboundary issues in Environmental Impact Assessment
There is no single, unified body of international law or treaty governing EIA.273
Principle 17 of the Rio Declaration274 was a clear international statement on theimportance of EIA (as a national instrument) as a way to assess the potential
impacts of those projects that are likely to have a significant impact on theenvironment. Although most domestic EIA laws rely on the principles outlined in
the Rio Declaration to assess impacts, it has been recognised that there aregaps between these laws and the practice of environmental impact assessment.
Project proposals with potential transboundary impacts have some uniqueassessment and public participation issues.275 The way that project proponents
engage stakeholders in neighbouring countries will require the involvement of
the national governments, as well as a range of diplomatic and legal
considerations.276
There is recognition under international law that countries have an obligation to“undertake an environmental impact assessment where there is a risk that the
proposed [project] may have a significant adverse impact in a transboundary
context, in particular, on a shared resource.”277 In the International Court ofJustice (ICJ) decision in a case between Argentina and Uruguay, the ICJ
recognised EIAs as practice which has become part of general international law
in regards to large-scale industrial developments on shared international
watercourses with the potential for transboundary pollution is a very significant
outcome.278 This is despite the fact that there was no obligation for an EIA in
the Statute yet both Parties agreed it was necessary.279 It could be said that ageneral obligation exists to conduct EIAs in such circumstances, but that theirscope and content is not defined.280 There is also no specification within thisduty to conduct public participation with affected populations.281
ASEAN has already tried to address activities, such and pollution, haze, trade inendangered species and natural disasters that are likely to have a
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
273

Charles M. Kersten, Note, Rethinking Transboundary Impact Assessment, Yale Journal ofInternational Law volume 34 (2009), p.178.
274
All members of ASEAN except Brunei are signatories to the Rio Declaration.
275
The list of activities likely to have transboundary impacts, for which notification is required
under the Espoo Convention is defined in Articles 2 and 3 and Appendix I List of activities.
http://www.unece.org/env/eia/about/eia_text.html#appendix1.
276
Mairi Dupar and Nathan Badenoch World Resources Initiative, Environment, Livelihoods, andLocal Institutions: Decentralization in Mainland Southeast Asia (2002), available at:
http://pdf.wri.org/decentralization_msea.pdf.
277
Pulp Mills Case (Provisional Measures)(Argentina v. Uruguay) ICJ Reports 2006, p.204
278
See unpublished paper by Remy Kinna, and McIntyre (2011) and McIntyre (2010).
279
Pulp Mills on the River Uruguay (Argentina v Uruguay) ICJ Advisory Opinion (Order of 20
April, 2010) I.C.J. Reports 2010, at Par 203 & 204.
280
Pulp Mills on the River Uruguay (Argentina v Uruguay) ICJ Advisory Opinion (Order of 20
April, 2010) I.C.J. Reports 2010, at Par 205.
281
Pulp Mills on the River Uruguay (Argentina v Uruguay) ICJ Advisory Opinion (Order of 20
April, 2010) I.C.J. Reports 2010, at Par 204.

	
  

126	
  

transboundary impact. However, there exist activities and projects that whilst
being confined to only one country may have an impact beyond that country’s
borders. This could include hydropower projects, coal-fired power stations,
nuclear developments and industrial or resource exploitation projects. These
are the projects or activities that may have a transboundary impact that should
be properly assessed prior to approval.
In the Mekong Region, there are various agreements and mechanisms forconsidering transboundary environmental issues, but no agreement fortransboundary EIA yet exists. As such, there is no regional framework for EIAs
for proposed projects that have transboundary impacts. The Mekong River
Commission (MRC) has extensive experience in water management mattersthat have transboundary impacts. In 2002 the MRC developed a draft
framework for Transboundary EIA that remains the most comprehensive
proposal in the region to date.
The UN Convention on the Protection and Use of Transboundary Watercourses
and International Lakes calls on member states to pass legislation that will apply
EIA to treaty waters.282 The UN Convention on the Law of the Non-Navigational
Uses of International Watercourses only provides for notification concerning
planned measures with possible adverse effects. Such information may include
the results of any EIA.283 Whilst there is an obligation within this Convention to“protect and preserve the ecosystems of the international watercourses,” there
is no requirement to conduct transboundary environmental assessment.284
The UN Economic Commission for Europe (UN ECE) has been at the forefrontof developing mechanisms that both support and enhance the role of domestic
EIA law, as well as examining ways that EIA can assist in the regional context.
The three most internationally recognised instruments relating toenvironmental assessment are the following:•••

The Convention of Environmental Impact Assessment in a
Transboundary Context (Espoo Convention)
The Protocol on Strategic Environmental Assessment (the SEA
Protocol)The Convention on Access to Information, Public Participation in
Decision-Making and Access to Justice in Environmental Matters (theAarhus Convention)

Each of these international instruments draws from the existing international
environmental laws norms. Each of these instruments reflects the procedural
nature of EIA.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
282

Kersten (2009), p.180.
Article 12. Viet Nam is the only ASEAN Member State that is a signatory to this Convention.
284
Article 20.
283

	
  

127	
  

The Economic Commission for Europe has adopted a Guidance on Public
Participation in Environmental Impact Assessment in a Transboundary Context(the ECE Guidance) to support the two key European intergovernmental
agreements on EIA and public participation – the 1991 Convention on
Environmental Impact Assessment in a Transboundary Context (the Espoo
Convention) and the 1998 Convention on Access to Information, Public
Participation in Decision-making and Access to Justice in Environmental
Matters (the Aarhus Convention).285

The Convention of Environmental Impact Assessment in a Transboundary
Context (Espoo Convention)	  As a consequence of the adoption of EIA in most member states in Europe, in1987 a Group of Experts from the UN Economic Commission for Europe (UNECE) elaborated on EIA in a transboundary context. The Convention was
negotiated from 1988 to 1990 and the Convention was opened for ratificationfrom 3 September 1991. The Convention entered into force on 10 September
1997. At present there are 44 parties to the Espoo Convention, including the
EU, USA and the Russian Federation.
The Espoo Convention is a preventative mechanism to avoid, reduce andmitigate significant environmental impacts intended to help make development
sustainable by promoting international cooperation in assessing the likely
impact of a proposed activity on the environment. It applies, in particular, toactivities that could impact the environment in other countries.286
It is important to note that the Espoo Convention is a process-oriented
convention. Under the Espoo Convention the Parties shall take “all appropriate
and effective measures to prevent, reduce and control significant adverse
transboundary environmental impact from proposed activities.”287
The requirements under the Espoo Convention extend to an obligation torequire project level EIA, notify potentially affected countries, provide access to
information to potentially affected parties and allow comments and be
informed on the final decision with respect to the project. 288 The Espoo
Convention provides a list of activities in Appendix I that are covered by theConvention and a minimum list of information that should be included in the
EIA in Appendix II.
The Espoo Convention is important as it is based on international
environmental law norms and provides access to information and the right to
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
285

UNECE (2006) Guidance on Public Participation in Environmental Impact Assessment in a
Transboundary Context, ECE/MP.EIA/7.
286
Vesna Kolar Planinšič (2016), Ministry of the Environment and Spatial Planning of the
Republic of Slovenia. Various presentations to the RTWG on EIA.
287
Espoo Convention, Article 2.
288
These are contained in Articles 3 to 6 of the Espoo Convention.

	
  

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participate and be informed of potential adverse impacts from activities having
a transboundary impact.

Protocol on Strategic Environmental Assessment (the SEA Protocol)	  In addition to the Convention on EIA in a Transboundary Context, the Parties
negotiated the SEA Protocol. This SEA Protocol entered into effect on 11 July
2010. The SEA covers the environmental assessment of policies orprogrammes by member governments which are likely to have significant
environmental, including health, effects.289
Under the SEA Protocol, Strategic Environmental Assessment is defined tomean:
The evaluation of the likely environmental, including health effects, which
comprises the determination of the scope of an environmental report andits preparation, the carrying out of public participation and consultations,and the taking into account of the environmental report and the results ofthe public participation and consultations in a plan or programme.290
The SEA Protocol requires the preparation of a SEA for plans and policies
within their jurisdiction. Public participation and consultation are required by
the member Parties.291 The SEA Protocol refers to “early, timely and effective
opportunities for public participation.” It also requires that the public, including
relevant NGOs, be provided with the necessary information to allow them tocomment “within a reasonable time frame.”
There is also a requirement from transboundary consultation, if it is likely thatthe implementation of the plan or policy will have a transboundary impact.292

Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters (Aarhus
Convention)	  One of the most important elements of EIA is the need for effective public
participation. In order to achieve effective public participation, there is a needfor the community to have access to the information prepared by the project
proponent and by government concerning the project and its potential impact.
Principle 10 of the Rio Declaration reflects these fundamental requirements.
The Aarhus Convention was concluded as part of the UN ECE “Environment for
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
289

SEA Protocol, Article 4.
SEA Protocol, Article 2.
291
SEA Protocol, Article 8.
292
SEA Protocol, Article 10.
290

	
  

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Europe” process and entered into force on 30 October 2001.293 It has beenrecognised as having global significance for the promotion of environmental
governance.294
The Aarhus Convention contains three mains pillars:• The rights of the public to access information about the environmentand development;• The requirement for public participation in environmental assessment ofspecific development projects;295 and• The rights for the public’s access to courts and tribunals for justice inenvironmental matters.296
As of 7 January 2014, there were 46 Parties to the Convention, 33 Parties
to the Protocol on Pollutant Release and Transfer Registers (PRTRs) and 27
Parties to the amendment on public participation in decisions on the
deliberate release into the environment and placing on the market ofgenetically modified organisms (GMOs).297
The Preamble of the Convention referred to Principle 1 of the Stockholm
Declaration on the Human Environment and Principle 10 of the Rio Declaration
on Environment and Development. Principle 10 states:
Environmental issues are best handled with the participation of all concerned
citizens, at the relevant level. At the national level, each individual shall haveappropriate access to information concerning the environment that is held by
public authorities, including information on hazardous materials and activities
in their communities, and the opportunity to participate in decision-making
processes. States shall facilitate and encourage public awareness andparticipation by making information widely available. Effective access to
judicial and administrative proceedings, including redress and remedy, shall be
provided.
The Aarhus Convention recognised that the engagement of the public is vitalfor creating an environmentally sustainable future. This recognition has been
continued with the Meeting of the Parties to the Aarhus Convention. One of
the strengths of the Aarhus Convention is the ability of the parties to continue
with negotiations to cover additional matters under the Aarhus Convention.
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
293

http://www.unece.org/env/pp/welcome.html
http://europa.eu.int/comm/environment/aarhus.
294
Donna Craig and Michael Jeffrey, Non-lawyers and Legal Regimes: Public Participation for
Ecologically Sustainable Development, in The Future of International
Environmental Law (David Leary and Balakrishna Pisupati, editors) (2010), p.105.
295
These matters are listed in Annex 1 of the Aarhus Convention. These matters also include
any activity not specifically covered in the Annex, where public participation is provided forunder an environmental impact assessment procedure in accordance with national legislation.
296
Aarhus Convention, Articles 4-9.
297
Detailed information about ratification of the Aarhus Convention is available at
http://www.unece.org/env/pp/ratification.html.

	
  

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This includes a Protocol to enhance public access to information through theestablishment of coherent, integrated, nationwide pollutant release andtransfer registers (PRTRs).
Additionally the United Nations Environment Programme (UNEP) Guidelines forthe Development of National Legislation on Access to Information, Public
Participation and Access to Justice in Environmental Matters reflect the Aarhus
principles at the global level.298 It can be considered that the core principles of
the Aarhus Convention reflect a norm of customary international environmental
law and are foundation pillars for better environmental governance and theachievement of sustainable development.299

Mekong River Agreement	  The 1995 Agreement on the Cooperation for the Sustainable Development of
the Mekong River Basin (the Mekong Agreement), requires member countries
to provide notification and have prior consultations to discuss transboundary
impacts for water projects in the Mekong Region that may have an impact onneighbouring countries, before any commitment is made to proceed.300
The Mekong Agreement was signed in Chiang Mai, Thailand on 5 April 1995.
The UN had established the Mekong Committee in 1959, but the Mekong
Agreement reflected the decision by Cambodia, Lao PDR, Thailand and Viet
Nam to establish a regional framework for cooperation along the Mekong
Basin.
From the outset the Mekong Agreement was focussed on sustainable
development, utilization, conservation and management of the Mekong Basin.301
Agreement on the Cooperation for the Sustainable Development of the
Mekong River Basin (1995)
Article 3. Protection of the Environment and Ecological Balance:
To protect the environment, natural resources, aquatic life and conditions, andecological balance of the Mekong River Basin from pollution or other harmful
effects resulting from any development plans and uses of water and relatedresources in the Basin.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
298

Detailed information on the history of the Aarhus Convention is available at
http://www.unece.org/fileadmin/DAM//env/pp/welcome.html. Chisinau Declaration As
adopted on 1 July 2011.
299
Craig and Jeffrey (2010), p.123.
300
Mekong River Commission, Transboundary EIA, http://www.mrcmekong.org/aboutmrc/programmes/environment-programme/transboundary-eia.
301
Preamble, Mekong Agreement.

	
  

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Article 4. Sovereign Equality and Territorial Integrity:
To cooperate on the basis of sovereign equality and territorial integrity in theutilization and protection of the water resources of the Mekong River Basin.
The key to the successes (and failures) of the Mekong Agreement has been theneed for all parties to act cooperatively in matters that impinge on the right ofeach member state to utilize the Mekong River resources. Additionally the
Mekong Agreement implicitly recognizes that there are many actions that will
have a transboundary impact, not least hydropower, but also shipping, irrigationand fishing.
The Mekong Agreement established the Mekong River Commission (MRC),
which includes the Council, the Joint Committee and the Secretariat.302 Since
that time, the work of the MRC has expanded to included significant
programmes to assess and research on activities along the Mekong Basin. The
MRC in 2011 adopted the Integrated Water and Related Resources
Management-based Basin Development Strategy and its 2011-2015 StrategicPlan.
A key feature of the Mekong Agreement from a transboundary EIA perspectiveis the requirement for prior consultation. Prior consultation is defined in the
Mekong Agreement:
Prior consultation: Timely notification plus additional data and information to
the Joint Committee as provided in the Rules for Water Utilization and InterBasin Diversion under Article 26, that would allow the other member riparians
to discuss and evaluate the impact of the Proposed use upon their uses ofwater and any other affects, which is the basis for arriving at an agreement.
Prior consultation is neither a right to veto the use nor unilateral right to use
water by any riparian without taking into account other riparians' rights.303
It must be recognised that the MRC has, over the past 20 years, contributed
greatly to the study of the Mekong River Basin. Many of its projects examine
the impact of development and existing uses on the Mekong Basin. Recently,
the work of the MRC has been dominated by discussion of the expansion ofhydropower developments both on the main stream Mekong River and its
tributaries.
The success (and failure) of the MRC is that it has adopted a cooperative
approach based on promoting consensus and cooperation over confrontation.
The MRC is also heavily reliant of foreign donors. It has been suggested that
this reliance has created a “sense of alienation of the MRC to its member
states.”304
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
302

Chapter IV.
The Mekong Agreement, Chapter 2
304
Only One Mekong, p.961.
303

	
  

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Procedures for Notification, Prior Consultation and Agreement	  One of the key features of the Mekong Agreement, as mentioned above, is therequirement of prior consultation. This was further enhanced by theProcedures for Notification, Prior Consultation and Agreement (PNPCA) thatwere adopted in 2003.
The PNCPA were adopted to promote better understanding and cooperation
among the MRC member countries. The guiding principles of the PNPCA are:• Sovereign equality and territorial integrity;• Equitable and reasonable utilization;• Respect for rights and legitimate interests;• Good faith; and• Transparency.305
The aim of PNPCA, similar in substance to the notification requirements under
the Espoo Convention, was to provide other member countries with priornotification of development that would likely have a transboundary impact. The
PNPCA also allows the impacted party an opportunity to consider the
information contained in the notification and to request further information or
clarification. The time for prior consultation is set at six months with thepossibility of extension.306 Approval is considered on a case-by-case basis.307
There is a role for both the MRC and the MRC Joint Committee to assist in thetransmittal process and also to assist with the consultation process. 308 ThePNPCA process makes good use of the exiting institutional arrangements,
including the National Mekong Committees established under the Mekong
Agreement.
The value of the PNPCA process cannot be underestimated, even if it only
applies for a limited range of projects and has been the subject of criticism.309
What is clear from the PNPCA and the Mekong Agreement is that member
countries have agreed to allow prior notification and prior consultation for
activities and projects that may have transboundary impacts. It also recognisedthat a secretariat body was necessary to assist in the process of notification andconsultation.

Consideration of Transboundary EIA by the MRC	
  Attempts have been made by the MRC to advance the idea of a transboundary
EIA framework. In 1998, the MRC agreed to formulate and adopt a system for
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
305

PNPCA, Article 3.
See PNPCA, Article 5.5307
PNPCA, Article 6.
308
PNPCA, Article 5.3.3
309
PNPCA, Article 4.
306

	
  

133	
  

environmental assessment in a transboundary context.310 Following a report
prepared by Environmental Resources Management in April 2002, a guideline
report was presented to the MRC. 311 The ERM Report consisted of a
Background Report and a Proposed System Report.
The Proposed System Report noted that the policy documents were “notintended to supersede or replace existing EIA requirements in each country”
but were proposed as a complementary framework applicable to those projects
that had the potential to cause transboundary impacts.312
The Proposed System Report was broken into three parts:• A sub-system for SEA;
• A Policy of EIA in a Transboundary Context for the MRC; and• A sub-system for EIA.
The Proposed System also had a number of elements:• Proposed Policy on EIA in a transboundary context;• Guidelines on SEA;
• Guidelines on Cumulative Impact Assessment;• Guidelines on Public Participation in Environmental Assessment;• Environmental Impact Statement Review Criteria;• Sector Guidelines; and• Training Program to support the implementation of the EIA/SEA System.
As King noted, since the presentation of these comprehensive reports to the
MRC in 2002 little action has been taken. In 2007, the Thai National MekongCommittee raised a number of concerns with the EIA framework.313 In 2009,
the Environmental Law Institute conducted a further review314 and assessed the
EIA/SEA Proposed Framework in the context of global best practice andprovided a revised draft framework.315 The MRC remained committed to theimplementation of a transboundary EIA framework in the 2006-2010 Strategic
Plan and the 2011 – 2015 Strategic Plan. However since the 2009 review by theEnvironmental Law Institute, there has been no advancement on the adoptionof the Framework.

	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
310

P. King, Transboundary EIA and Climate Change in the Greater Mekong Subregion (GMS),
presented at the Stimson Centre Conference, Finding Solution to Equitable Hydropower
Development Planning in the Lower Mekong Basin, Chiang Rai, 2014
311
Environmental Resources Management, Development of an EIA/SEA System for the Lower
Mekong Basin, April 2002 (ERM Report)
312
Environmental Resources Management, Development of an EIA/SEA System for the Lower
Mekong Basin Proposed System, April 2002 (the Proposed System Report).
313
King, p.2.
314
Establishing a Transboundary Environmental Impact Assessment Framework for the MekongRiver Basin, an Assessment of the Draft Mekong River Commission TbEIA Framework,
Environmental Law Institute, April 2009.
315
King, p.1.

	
  

134	
  

Greater Mekong Subregional Environment Agreement	  There was an attempt to develop a GMS Environment Agreement as a regional
response to climate change in 2009. In January 2009, the World Wildlife Fund(WWF) commissioned a background study reviewing the legislative frameworkin the GMS, including regional and multi-lateral agreements and the domestic
legislative arrangements of the GMS countries. This report noted that the GMS
was unusual in not having a sub-regional environmental agreement.
The main focus of the discussion was on the use of a regional agreement topromote adaptation to climate change. Although a discussion meeting was heldin Bangkok on 22 July 2009, there was no further follow-up or development of
the idea for a regional climate change adaptation agreement. Over the past five
years, governments have been developing country responses to climate change,rather than a regional approach.
There were likely to be a number of reasons, as identified by Peter King, as tothe failures to develop any regional environmental agreement for the GMS.316
However it may also be that the key reason no environmental agreement wasadvanced was due to the lack of political will in the face of global economic
uncertainty. Without political will, any regional environmental agreement will
not be advanced. Other reasons may also be that any regional environmental
agreement in the GMS will clearly be directed at the use of rivers, such as the
Mekong and Salween, and the development of hydropower, which are
inherently hotly contested political issues, both within and between countries.
In the Mekong Region (and the broader ASEAN region) the potential foradverse environmental impacts is also recognised, especially in relation to water
resources development, transport of dangerous goods, biodiversity loss andtransboundary haze. The Greater Mekong Subregion Core Environment
Programme and Biodiversity Conservation Corridor Initiative (CEP-BCI)
specifically address concerns over the likely transboundary effects ofinfrastructure development in the region. 317 Other cross-border institutional
developments include a Greater Mekong Railway Association, Regional Power
Coordination Centre and Mekong Tourism Coordination Office, among
others.318
The Greater Mekong Subregion Cross-Border Transport Facilitation
Agreement (1999) has a specific section on transport of dangerous goods.319
These are defined as “those substances and articles, which may affect the
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
316

Presentation by Dr. Peter King, July 2009.
The CEP-BCI is Administered by ADB and overseen by the environment ministries of the six
countries that form the Greater Mekong Subregion Working Group on Environment http://www.adb.org/countries/gms/sector-activities/environment.
318
Comments from Dr Peter King.
319
More details on the Greater Mekong Subregion Cross-Border Transport Facilitation
Agreement are available at http://www.gms-cbta.org/uploads/resources/15/attachment and at
ADB_TF_CBTA_Full_Text_gms-cbta-instruments-history.pdf.
317

	
  

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interest of environment, health, safety, and national security.” If the Contracting
Parties permit on a case-by-case basis the cross-border movement ofDangerous Goods as defined above, they should require the full application of
the measures under United Nations Recommendations on the Transport ofDangerous Goods/Model Regulations (UN Model Regulations) and/or theEuropean Agreement Concerning the International Carriage of Dangerous
Goods by Road.

Requirements For effective transboundary EIA systems	
  Some of the requirements for effective transboundary environmental impact
assessment include:• The establishment of effective national EIA procedures;• The designation of a focal point in the national country to be responsible
for any communications between the host country and the impacted
country or countries;• The opportunity for equivalent public participation in EIA for both the
public of the impacted country and the public of host country;• Notification to the focal point of the impacted country as early as
possible with the relevant information;• Joint responsibility to provide for public participation in the areas likely
to be affected by the proposed project;• Joint responsibility for the distribution of the EIA documentation and forthe submission and transmittal of comments to the focal point of thehost country;• A requirement that the host country take into account the submissions
from the impacted country in reaching the decision about the project or
activity;• Providing a copy of the decision of the host country and any
environmental management plans or approval conditions; and• A mechanism to pay for the Transboundary EIA process.
The ECE Guidance identifies a number of key best practices that haverelevance to the Mekong region countries:• Financial support may be needed to: translate the EIA documentation
into the language(s) of the affected country; translate the publiccomments and recommendations back into the language of the countryof the project proposal; disseminate EIA materials (including booklets,
brochures) within the neighbouring country; pay for information
distributed through newspapers, radio, TV, e-mail or Internet; andorganize public consultation meetings;• Neighbouring countries should be notified of project proposals withpotential transboundary impacts as early as possible, and receive such
notification no later than the general public in the country of the project
proposal;• All countries potentially affected by a project proposal – both the hostand neighbouring countries – should be jointly responsible in

	
  

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•

disseminating information about the EIA and collecting feedback from
PAP and stakeholders for consideration in the decision-making process;andAll comments received on transboundary EIAs from any stakeholder inany potentially affected country should be considered in making adecision on the EIA, and that final decision should be published inneighbouring countries.

Public participation as a centrepiece of transboundary EIA promotes thetransparency and legitimacy of decision-making processes in projects withtransboundary effects. Transboundary EIAs conducted without adequate public
participation may address state-to-state concerns, but completely missimportant local issues and valuable local or indigenous knowledge. Effective
feedback mechanisms can ensure that best efforts to address local concerns inneighbouring countries have been built into environmental mitigation andmonitoring plans (EMMPs) and thus avoid future conflicts during construction
and operational phases of the project.
The ECE Guidance demonstrates that, despite the need to consider uniqueprocedural issues in establishing transboundary EIA arrangements, the majorityof the concepts and recommended approaches outlined in these Guidelines will
be applicable to project proposals with transboundary impacts. In other words,
the same public participation principles and approaches should apply withinboth the host and neighbouring countries, although the institutional
mechanisms may differ.

	
  

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Concluding thoughts on the EIA in the Mekong countries
Much has been written on the EIA in the various countries of the Mekong. Muchof the analysis has focused on comparisons between lower Mekong countries
and China or Japan or Korea. This is the first analysis that has compared the six
countries to each other. From the legislation and regulation review that formed
the basis of this Manual and the Mekong EIA Briefing: Environmental Impact
Assessment Comparative Analysis In Lower Mekong Countries, 320 it can beobserved that there are a number of similarities in the EIA Procedures adopted
by the Mekong countries. There are also a number of significant differences.
The most important differences can be found in the way that the relevant EIA
Unit assesses the EIA Report and how the final determination of the project ismade. Regional cooperation is increasing and regional sharing of good practice
can promote better EIA practice.
The monitoring, compliance and enforcement stage of the EIA process
generally remains weak. Whilst the focus is on the preparation and review of
the EIA leading to the determination of the project (approval or rejection),
there is little attention on the enforcement and compliance with the EMP. Less
effort is made on ensuring that the conditions of approval are complied withand that all the project commitments are completed by the project proponent.
Four features are in common to all national EIA systems. The first is that all
countries have a screening list for projects. The second is that all countries havea tiered approach to the EIA. The third is that all countries do provide for accessto information. Fourth, all countries provide for the opportunity for public
participation at most steps in the EIA process.

Screening lists
All countries have adopted a screening list for projects. The EIA is designed toensure that all projects that are “likely to have a significant impact on theenvironment” 321 are required to conduct an EIA. These lists differ between
countries. Usually it determines whether an IEE or EIA is to be undertaken, or if
no assessment is required. In Thailand the screening process will also identify if
a specific health impact assessment is required.
	
  Tiered Approach to the EIA
The screening lists also provide for levels of assessment from no assessment to
IEE or EIA. In addition, some countries provide for some form of environmental
assessment instead of the no-assessment option (Cambodia and Viet Nam). In
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
320

Available online at the following website:
http://www.pactworld.org/sites/default/files/local-updatesfiles/MPE_Mekong_EIA_Briefing_Final.pdf.
321
This phrase has been the subject of considerable debates and discussion. The aim of EIA is toensure that these impacts are identified, assessed and mitigated.

	
  

138	
  

some countries, if the IEE reveals likelihood that the project will cause asignificant impact on the environment, then the EIA Unit may require a full EIA.

Access to Information
All countries allow project affected people (PAP) to have access to information.
Thailand, for example, goes further to allow broad access to information.
However, in some countries it is not always clear what information must be
provided and at which stage of the process. Myanmar is quite clear that certain
documents must be publically available within specific time frames. However,some EIA procedures are not clear in legislation and regulations about access to
information and the minimum information that must be provided.

Public Participation
All countries provide the opportunity for public participation at most steps in
the EIA process. However, often this is a promise that is not fulfilled. One of thegreatest challenges now being addressed is how to promote and enhance
public participation and stakeholder engagement in the region to enhance
project development and implementation.

	
  

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Annexure 1: Outline of Project Description322
Brief Presentation
1. Sector and subsector
2. Size

Guidance Notes
E.g., Energy production, Hydropower
Size can be expressed in terms of area (or length if
it is a road or other linear project), production,category/type, number of employees, project
investment
3. Location
Overview map typically scale 1:200,000 or 1:20,000
depending on type of project. The map should
include main natural features, like water bodies,
forest, etc. existing infrastructure (roads, bridges,etc.) and human settlements in the proximities ofthe project. In case of an urban development,sensitive areas (schools, temples, markets, sites ormonuments of cultural importance, commercial
areas, etc.) should be clearly indicated.
4. Project components• Main production facilities• Internal infrastructure• Ancillary infrastructure and facilities
5. Overall time schedule Present a diagram with the planned timing of:• Studies (incl. the EIA study)• Permitting/licensing• Concession agreements• Detailed design, contracting• Pre-construction activities• Construction activities• Operations• Decommissioning/closure/post closure
6. Project Organization
Organization chart, management, roles andresponsibilities, etc.
Pre-construction and Construction Phases
7. Activity schedules
Diagram with the main components and theirrespective main construction activities and related
mitigation measures
8. Location of project Site map (1:50,000 or 1:10,000) with location ofcomponents
project components such as roads, camps, mine,
processing plant, storage areas, tailing dam,
reservoir, power house, transmission line, bridges,etc.
9. Project
Description of each of the main characteristics ofCharacteristics
the project:• Materials (amounts, types, sources)• Equipment, machinery
	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  	
  
322

	
  

Laos EIA Guidelines, MONRE, 2012.

140	
  

•

10.

Labour••••Conceptual design drawings
List the alternatives considered and assessed.
Only consider realistic and reasonably
feasible alternatives
Expected workforce, if possible short
description of workforce per job type)
Expected origin of workforce
Type and location of worker accommodation
Health and Safety commitments

Operational Phase
11. Overview
operationsof Brief description of project components including
production processes and technologies, facilities
and infrastructure.
Visual presentation of the completed project (e.g. afreehand drawing, layout)
Presentation of production data:• Inputmaterials(amounts/year,
types,
qualities and characteristics, sources)• Water and energy consumption and sources• Outputs: products (amounts, characteristics)
by-products, waste and other emissions)12. Operations schedule Time diagram presenting the main components andthe main operations/processes and their respective
mitigation measures
13. Site layout maps
Site layout maps (1:20,000 or better scale) showing
the location of the main operational components
14. Components
Description of each component:• Facilities,
technology,
processes
withsimplified flow diagram• Location and visual presentation• Conceptual design drawings• Flow diagram: materials, water, energy, waste
and other emissions• Materials handling, storage• Waste and wastewater management• Transport (means, timing, loads, routes)
15. Labour
Expected workforce (if possible workforce per jobtype) and origin of workforce
Type and location of worker accommodation
Health and Safety commitments
Decommissioning / Closure / Post Closure Phase
16. Overview
Closure Plan Requirements (Strategy, Policy, Main
Objectives, time schedule, budgets, etc.)

	
  

141	
  

Annexure 2: Legislation
Cambodia	
  •Environmental Protection and Natural Resource Management (1996)•

Sub-Decree on Environmental Impact Assessment (1999)•

Prakas on Guidelines for Conducting EIA Report (49 MoE, March 2000)•

Prakas on General Guidelines for Conducting Initial and Full
Environmental Impact Assessment Reports (No.376 BRK.BST, 2009)•

Prakas on Registration of Consulting Firms for Studying and Preparing
Environmental and Social Impact Assessment Report (No.215 Brk MoE,
2014)

•

Prakas on Delegation of Authority to the Provincial Departments ofEnvironment on Matters Related to Investment Project on Behalf of the
Ministry of Environment (No. 230 BRK.BST, 29 July 2005)•

Inter-ministerial Prakas on Screening on EIA for Mining and Small-scale
Mining (No. 191, 26 April 2016)•

Joint Prakas (Declaration) on Public Service Charge of the Ministry ofEnvironment (No. 999, 28 Dec. 2012)•

Decree 146 on Economic Land Concessions (2005)

China
	
  

	
  

•

Environmental Protection Act (1989, revised 2014)•

Law of the People's Republic of China on the Protection of Wildlife(1988,	
  revised 2004, amended 2016)•

Law of the People's Republic of China on the Prevention and Control ofAtmospheric Pollution (1995, amended 2000, revised 2015)•

Law on Environmental Impact Assessment (2002, revised 2016)•

Provisions of the State Environmental Protection Administration on the
Examination and Approval Procedure of EIA on Construction Projects(2005)•

Provision on the Graded Examinations and Approval of Environmental
Impact Assessment Documents of Construction Projects (2009)•

Interim Measures for Public Participation in Environmental Impact
Assessment (2006)•

Classification Catalogue of Construction Projects Environmental Impact
Assessment (2015 Revision)

142	
  

•

Measures for the Administration of Construction Projects Environmental
Impact Assessment (2015 Revision)—Annex 1 to 6•

Technical Guidelines for Environmental Impact Assessment—General
Programme, HJ 2.1-2011, Chapter 8, by Ministry of Environmental
Protection (issued in 1993, revised in 2011)

Lao PDR	  •Law on Environmental Protection (Amended) No.29/NA (2012)•

Law on Media (2008)•

Decree on EIA (2010)•

Ministerial Instruction on the Process of Environmental Impact
Assessment of the Investment Projects and Activities No. /MONRE (17December 2013)•

Ministerial Instruction on the Process of Initial Environmental
Examination of the Investment Projects and Activities No. 8029/MONRE(17 December 2013)•

Process of Environmental and Social Impact Assessment of theInvestment Projects and Activities No 8030/MONRE (17 December
2013)

Myanmar	
  •Constitution of Myanmar (2007)•

Myanmar National Environment Policy (1994)•

Environment Conservation Law (2012)•

Environment Conservation Rules (2014)•

Environmental Impact Assessment Procedures (2015)•

Investment Law (2016)

Thailand
	
  

	
  

•

Constitution of Kingdom of Thailand BE 2550 (2007)•

National Environmental Quality Act 2535 (1992)•

Prime Minister Office Rule on Public Hearing (2005)

143	
  

•

Notification on EIA 2555, MONRE (2012)•

Notification of the Ministry of Natural Resources and Environment on
measures and procedures of EHIA B.E. 2552 (2009)•

ONEP’s Notification on the Timeline Following Notification of the
Ministry of Natural Resources and Environment on EHIA 2553 (2010)

Viet Nam
	
  

	
  

•

Law on Environmental Protection (2014)•

Decree on the implementation of the LEP 2014 No 19/2015/ND-CP(2015)•

Decree on Environmental Protection, Strategic Environmental
Assessment, Environmental Impact Assessment and Environmental
Protection Plans No. 18/2015/ND-CP (2015)•

Circular on Environmental Protection, Strategic Environmental
Assessment, Environmental Impact Assessment and Environmental
Protection Plans No. 27/2015/TT-BTNMT (2015)•

Circular providing guidance on SEA Appraisal, EIA Appraisal in the
Ministry of Agriculture and Rural Development No 09/2014/TT-BTNMT(2014)•

Decision of the regulation on the condition and provision of services ofappraising EIA Reports No 19/2007/QD-BTNNT (2007)

144	
  

Annexure 3: Further Resources
Screening Lists for EIA/IEE in selected Mekong Countries•

These are available online at the following website:
https://www.earthrights.org/publications.

	
  Draft Regional Guidelines on Public Participation in EIA•

These are available online at the following website:
http://eia.mekongcitizen.org.

Draft Cambodian Guidelines on Public Participation and Access toInformation in EIA•

These are still being drafted and are not yet available online.

	
  
	
  

	
  

145	
  

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