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Criticizing the Chinese EIA System

Part Two of Three

Introduction

As much as the international level environmental impact assessment (EIA) for mega-scale development has succeeded in China, it is unfortunate they only account for up to 5% of construction projects.  Although the impacts from the remainder of individual development projects are relatively lower in scale, their sheer numbers is of great concern when considering cumulative effects.  The majority of these projects do not require funding and hence are not bound to the IFC Performance Standards on Social & Environmental Sustainability, nor are they likely to follow them as voluntary initiative.  Often this means that the social and health impact assessment, which is a key feature of an international EIA, is ignored altogether.  The environmental industry is a growing field in China and there are many weaknesses to its EIA system such as gaps and flaws in legislation along with minimal enforcement.

Gaps and Flaws

Even though China has greatly expanded their legal regime in the environmental sector during the past few decades, the Chinese EIA system regardless has many gaps and flaws where much improvement is needed.  Weaknesses of the screening process, excessive power of local authorities, political pressure on decision makers, and limited public participation have greatly impeded the performance of the EIA concept in this country.

Weakness of the Screening Process

One way to perform an environmental impact assessment is to establish a set of criteria and compare all potential disturbances with their corresponding standards to determine the significance of an impact.  A multitude of numerical standards constitute Chinese environmental laws hence its EIA system relies heavily on quantifiable measurements.  As mentioned previously in Understanding the Chinese EIA System, there is a screening process that specifies whether an EIA report, form, or registration form is required for a project, and the EIA Law stipulates that only EIA reports and forms must be prepared by licensed institutions or certified professionals.  However, these only cover about 40% of development projects in China, in other words the remaining 60% of projects required to submit EIA registration forms are performed by the project proponents themselves, who may not be professionals in scientific assessment.  Furthermore, the problem with having concrete numerical values for environmental standards becomes evident during this screening process; individuals performing the EIA may be inclined to design construction proposals just within the maximum threshold of a category to avoid more stringent environmental scrutiny from the next level up, which works in favour of both budget and time allocation.

Excessive Power of Local Authorities

The authority to approve an EIA is distributed between the Ministry of Environmental Protection (MEP) and local environmental protection bureaus (EPBs).  The MEP is primarily responsible for authorizing special projects like nuclear or military facilities, projects that extend across provinces, and projects involving the State Council; local EPBs have the authority to approve all others.  These remaining projects are distributed between provincial, municipal, and county level EPBs, but in reality the county level government approves the large portion of EIAs, worth more than half the total investment of all projects.  This imbalance of power between approval authorities enables lower level EPBs to develop local policies that may impede or even contradict the EIA law, and can lead to incomprehensive consideration of environmental impacts during assessment.  The establishment of a hierarchical government where higher level EPBs directly supervise lower level EPBs is essential to avoid this problem.

Political Pressure on Decision Makers

Similarly, excessive power of local EPBs may lead to political pressure on approval authorities to pursue economic advancement.  Despite their status as state ministry, the mandates and rules of the MEP are often undermined by ministries of industrial and economic development as well as by local governments.  Common violations of the EIA law include beginning construction before approval of an EIA, some projects are approved to build a hill then they go and build a mountain, others completely ignore the concept of EIA.  This is partly a result of the fact that local EPBs are also in charge of their own hiring processes, which is a problem especially where decisions are made by individual representatives of a government.  In other words, people are being put in difficult dilemmas because of China’s relentless push towards becoming an economic superpower, and forces decision makers to approve a project in fear of losing employment.  For this reason, the first step towards strengthening the EIA Law would be to assign the staffing responsibilities to a third party authority.

Limited Public Participation

In order for EIA to promote sustainable development, it is important to incorporate the concerns of the communities, as public participation forms a large part of the necessary social aspect that makes an international level EIA so effective.  With this communication between the government and the public, environmental decision making becomes transparent thus increasing public support of decisions made.  It also raises public awareness regarding environmental issues that directly affect the people, creating a more opinionated atmosphere during consultation. Public participation must be comprehensive and non-discriminating, meaning everyone regardless of age, gender, or ethnic group should be allowed to participate.  The enactment of the EIA Law in 2003 introduced this opportunity to the public in China for the first time.

Unfortunately, another apparent weakness of the EIA Law is that public participation is only required for developers preparing environmental impact reports; therefore only a small percentage of EIAs have a social component, though a number of changes have been made in effort to address this problem.  The EIA Law does not obligate smaller scale projects to consult the public, but they may be subject to local regulations if the proposed development is to be located at sensitive regions or within vicinity of residential areas.  Moreover, information related to the project is made available for the public to view.  With that said, the consultation is still inefficient for several reasons.  Although information is made readily available, it may be inadequate or even inaccurate, and to date the public never has full access to EIA documents.  Furthermore, the “Three Simultaneities” should be expanded to include not only mitigation measures but in addition public consultation.  This way public opinions and concerns will be assimilated into project design, construction, and operation, but public participation in China is only required for a brief 10 days.

Minimal Enforcement

One of the greatest weaknesses of the Chinese EIA system is its lack of strict enforcement.  Sometimes project components will begin construction and won’t complete an EIA unless they are caught by enforcement authorities.  The most evident problems related to lax enforcement involve high compliance cost, integrity of environmental practitioners, and lack of post-construction monitoring and compliance supervision.

High Compliance Cost

Environmental law enforcement is utterly inadequate in China, which explains why so many developers have ignored regulatory requirements in the past.  Legislation provides that those project developers caught violating the EIA law must suspend construction and prepare a makeup EIA document within a certain time limit.  The penalty for not meeting the time limit is a fine of 200,000 RMB, which is miniscule for many large multi-billionaire corporations.  In other words, it costs more to comply with the law and prepare an entire EIA report than it does to break it, take the penalty, and write a makeup EIA.  Ironically, it may be even easier to obtain approval with a makeup EIA since the project has already been invested in and construction has already begun.  This practice completely disregards the “Three Simultaneities” concept and the principle of conducting EIA is rendered useless.

Integrity of EIA Institutions and Practitioners

In order to maintain a certain level of quality, the EIA Law requires professional consultants and institutions to seek certification from the MEP.  This licensing system was established to ensure the integrity of environmental practitioners, but the EIA market in China is too dependent on and driven by clients’ demands.  Some institutions are more focused on business networking than they are on protecting the environment, and because of this the entire EIA concept has become a mere solemnity.  Past EIA documents have been known to lack scientific support and analysis, and have been submitted without conclusions or mitigation recommendations.  Furthermore, there is evidence of data concealment or fabrication indicating that some institutions are willing to provide false or inaccurate information for the sake of approval.  In other cases, though some EIA institutions may be fully certified with appropriate expertise and resources, they are hired because of their affiliation with local EPBs and developers are reassured with the prospect of approval through internal liaison.

Lack of Post-Construction Monitoring and Compliance Supervision

According to the EIA Law, if pollutant emissions in reality exceed what is stated in the document, then the project developer has to conduct a post-construction EIA, make improvements, and have it reapproved, after which the environmental protection authority is required to inspect the project’s operations.  Moreover, the last portion of the “Three Simultaneities” concept requires that pollution abatement controls must continue to be applied after construction ends and operation begins.  These include environmental monitoring and adherence to mitigation measures suggested in the EIA, but again lack of strict enforcement does not provide strong incentive for project developers to comply.  In some cases, pollution control equipment has never been installed at facilities, or is temporarily installed only during compliance audits when inspectors are present thus reducing costs.  Environmental monitoring is supposed to keep a record of the compliance status of the project during operation, but since compliance audits are so rare a large proportion of enterprises are not implementing pollution reduction strategies and the EIA document is simply shelved away after the approval is made official.

 References:

Moorman, J.L., and G. Zhang.  2007.  Promoting and Strengthening Public Participation in China’s Environmental Impact Assessment Process: Comparing China’s EIA Law and U.S. NEPA.  Vermont Journal of Environmental Law 8: 281-335.

Zhao, Y.  2009.  Assessing the Environmental Impact of Projects: A Critique of the EIA Legal Regime in China.  Natural Resources Journal 49: 485-524.

See also: Part One of Three: Understanding the Chinese EIA System  https://speakupforscience.wordpress.com/2011/07/25/chinaeia1/

Coming soon: Improving the Chinese EIA System

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Understanding the Chinese EIA System

Introduction

As a result of an increasingly large influx of information, lately I’ve been feeling a need to pull my thoughts together so I’ve decided to begin writing a summary of what I’ve learned at the office so far.  As a junior environmental consultant, I am constantly on a steep learning curve and I always feel like I have much to learn.  Currently in the middle of my first year, I am spending a good deal of time on environmental impact assessments (EIA), so today I’ll start with a review of that.  An EIA is an assessment of the positive and negative effects that a proposed project’s development may have on the environment and ensures that project owners have a comprehensive understanding of potential environmental impacts and necessary future commitments in order to make informed decisions before beginning (or not beginning) development.  The methodology for conducting environmental impact assessments varies between countries, but the development of international standards has increased similarities throughout the world.  The general processes of an international level EIA as well as China specific procedures as I understand them are as follows.

EIA in China: A Brief History

Not surprisingly, the concept of environmental impact assessment is relatively new in a developing country and was first introduced here in 1973.  Implementation of the new in China often starts with a slogan: “三同时”, or the “Three Simultaneities” is an important concept stating that environmental mitigation measures must be designed, constructed, and operated simultaneously with new projects in hopes of preventing, controlling and minimizing pollution.  This principle was established just prior to the EIA concept in 1972 and has since become mandatory for all development projects.  In the past few decades, EIA has grown substantially and many improvements have been made to the original system.  In 1982, the Chinese government has expanded EIA legislation to incorporate the marine environment into the assessment.  Furthermore, an EIA licensing system was proposed to ensure the integrity of EIA practitioners which among other amendments inaugurated the enactment of the Environmental Protection Law (EPL) in 1989.  The EPL provided the foundation for a number of statutes in succession including those that address air, noise, water and solid waste pollution, as well as resource conservation, wildlife management, land-use control, and hazardous material disposal.  By the late 1990s, EIA has become a standard prerequisite to development in China and the adoption of the new EIA Law in 2003 in addition to the renaming of the State Environmental Protection Agency (SEPA) to the Ministry of Environmental Protection (MEP) in 2008 as a symbol of rising administrative authority, constitute a few of the major changes that have occurred to EIA since the enurement of its legislation.

Legislative Framework and Approval Processes

The People’s Republic of China (PRC) is governed by the National People’s Congress (NPC), which is the highest authoritative power in the country, and the State Council is responsible for implementing the laws enacted by the NPC.  The MEP is one of several State Ministries and regulates development related environmental impacts under the State Council.  In short, a project owner must carry out an EIA which involves the following key steps: screening and scoping, public consultation, report preparation, expert panel review, then submission to and approval by the MEP.  Likewise, all of the above is prepared for a separate EIA that focuses strictly on marine impacts and is then submitted for approval by the State Oceanic Administration (SOA).  After approval and finalization of the EIA, the project may begin construction.  When construction is complete, the project owner must apply for production trial operation, and then must undergo a completion inspection.  The project is evaluated during inspection via environmental monitoring and once the environmental protection measures have been accepted, only then will the completion of construction be approved and official.  Furthermore, before operation begins the owner must also apply for applicable pollution discharge permits.

IFC and Equator Principles

The NPC and State Council have now promulgated many laws and regulations pertinent to environmental impact assessment, but larger-scale projects are often required to adopt relatively more stringent international criteria such as those suggested by the International Finance Corporation (IFC) as well as the Equator Principles.  The IFC is a member of the World Bank Group that promotes sustainable development by funding projects in the private sector provided that they comply with the “IFC Performance Standards on Social & Environmental Sustainability”.  Project financing is a type of funding where the lender is repaid through profit generated by large-scale projects such as oil refineries, power plants, chemical processing plants and mines.  The Equator Principles are “a financial industry benchmark for determining, assessing and managing social and environmental risk in project financing” based upon the performance standards set forth by the IFC.  Accompanying each performance standard is a mandatory set of guidance notes that must be followed in order to receive funding, but to the benefit of sustainable development, compliance with the above has now become a voluntary initiative for many projects even for those that do not require funding.

Screening and Scoping

The first step of an EIA in China is to undergo a screening process where the MEP or associated Environmental Protection Bureaus (EPBs) classify a project into Category A, B, or C based on the impact significance of expected pollution discharges and proximity to sensitive areas such as places of ecological, archaeological or cultural value.  Class ‘A’ projects require a comprehensive EIA and an environmental impact report (EIR) is prepared.  An environmental impact form (EIF) and an environmental impact registration form (EIRF) are prepared for Class ‘B’ and ‘C’ projects, respectively.  After the screening process, if an EIR is required then the developer commissions a licensed agency to prepare an EIA action outline, which is part of a scoping report that highlights the key issues and impacts of the proposed project as well as the baseline (initial) conditions of the environment where development is to take place.  After the scope of the project has been defined then the consulting agency begins the impact assessment.

Public Consultation and Disclosure

One of the most important aspects of a quality environmental impact assessment is to take into account the opinion of the public.  With this in mind, it is good practice to actively involve the public and incorporate their opinions into the design of a project throughout the entire duration of the EIA process.  As stated in the IFC Performance Standards and in the Equator Principles, consultation should be free, prior and informed, and usually takes place in the form of a questionnaire that is distributed to project affected and interested members of the public as a part of the social impact assessment.  Disclosure is also an important aspect of the EIA process, meaning information about decisions made shall be readily available, which is achieved through the release of a non-technical summary in the language of the local community as well as in a culturally appropriate manner.  Similarly, communities will be able to express their concerns about a developer’s environmental and social responsibilities regarding the risks and adverse impacts of a project through the use of a grievance mechanism also accessible throughout the entire duration of the impact assessment.

Preparing the EIR

The bulk of my responsibility involves the preparation of environmental impact reports.  The contents of an EIR must first contain an outline of the currently existing environmental and socioeconomic conditions at the proposed project’s location, and provide a description of the project’s resources, technologies, and processes.  It shall also list all potential pollutants caused by activities during all stages of the project’s development including both construction and operation.  During this portion of the assessment, all impacts caused by air emissions, wastewater, solid and hazardous waste, soil and noise pollution as well as impacts on ecology, social issues such as land acquisition and involuntary resettlement, cultural and archaeological artifacts and human health will be considered.  The next step is a bit beyond my ability, which is to predict changes in base conditions due to impacts caused by the project.  This usually requires the expertise of an environmental engineer and predictive analyses include air emissions modeling among many others.  Where possible, the project induced environmental impacts are quantified and compared to a set of criteria listed in standards, regulations or other requirements, but often impacts are limited to qualitative assessment as is the case for social and ecological impacts.  Another key feature of an EIR is the identification of mitigation measures that must be incorporated into the project’s design.  Once the consulting agency has determined the baseline conditions, predicted and evaluated the impacts, and recommended mitigation measures, all of the above is reviewed by the expert panel then is submitted to the MEP or SOA as a written report for approval, after which trial operation and inspection/monitoring begins.

References:

Chen, Q., Y. Zhang, and A. Ekroos.  2007.  Comparison of China’s Environmental Impact Assessment (EIA) Law with the European Union (EU) EIA Directive.  Environmental Monitoring and Assessment 132: 53-65.

International Finance Corporation’s Performance Standards on Social & Environmental Sustainability.  (April 2006)

The “Equator Principles”.  A financial industry benchmark for determining, assessing and managing social & environmental risk in project financing.  (July 2006)

Coming soon: Criticizing the Chinese EIA System

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