Environmental impact assessment in Lao PDR: A comparative ... · Environmental impact assessment in Lao PDR: A comparative study on the gaps between procedures and practice with reference

INTERNATIONAL JOURNAL OF ENVIRONMENTAL SCIENCES Volume 3, No 6, 2013

© Copyright by the authors - Licensee IPA- Under Creative Commons license 3.0

Research article ISSN 0976 – 4402

Received on May 2013 Published on July 2013 2080

Environmental impact assessment in Lao PDR: A comparative study on the

gaps between procedures and practice with reference to Japan Sengdeuane Wayakone

1, Inoue Makoto

2, Sachihiko Harashina

3

1- National University of Laos, Office of International Relations, PO Box: 7322, Vientiane,

Lao PDR,

2- Global Forest Environmental Studies, Department of Global Agricultural Sciences,

Graduate School of Agricultural and Life Sciences, The University of Tokyo

3- Faculty of Policy Informatics, Chiba University of Commerce

(Professor Emeritus, Tokyo Institute of Technology)

[email protected]

doi: 10.6088/ijes.2013030600026

ABSTRACT

The environmental impact assessment (EIA) is an important legislative and scientific tool for

assisting and improving the quality of the decision-making process for sustainable

development (IAIA 1999; Holder 2004; Elliott and Thomas 2009). EIAs are now established

in many countries of the developed and developing world. EIA systems do, however, vary

greatly between procedures and actual practice. Some countries have clear regulations, others

have administrative guidelines, and others have more ad hoc procedures. Those with well-

established procedures may not necessarily be those with the most successful implementation.

This can be a particular problem in the less developed countries, and this article explores and

seeks to explain the nature of the EIA procedure–practice gap in Laos and to make

comparisons with the EIA system of Japan. The histories of EIA implementation by the

national governments of Japan and Lao People’s Democratic Republic (Lao PDR) are

different. Japan started to develop policies and guidelines in the 1970s and progressed to

legislation in the 1990s. However, Lao PDR started in 1993 with the first National

Environmental Action Plan, which provides a framework for the EIA process in the country.

The EIA system of Lao PDR appears to be less efficient in the application and review process

than Japan, and coordination between EIA proponents, consultants, ministries concerned,

local authorities, planners, and decision-makers is generally weaker. This leads to not only

causing delays in decision-making but also poses a hindrance to effective implementation of

environmental regulations. Thus, the appraisal of issues, the decision-making process, and

evaluation through monitoring are not always performed well in Lao PDR.

EIA legislation in Lao PDR has many strengths, but also some key weaknesses. There are

problematic links with planning procedures, a lack of secondary regulations, very few trained

and skilled personnel or material resources, inadequate public consultation, lack of

environmental data, and weak follow-up and monitoring. There are weaknesses in the EIA

process, and the EIA approval procedure is very bureaucratic and easily derailed by political

and economic pressures. These are common problems that have happened mostly in

developing countries in the past few decades.

The relative strengths and weaknesses of the EIA system in Lao PDR are highlighted through

a comparison with Japan’s practices, using a checklist approach. The article concludes with

recommendations to strengthen the system which encompasses improvement of capacity

building, creation of an effective EIA consultant accreditation system, assurance of effective

public participation and access to EIA reports, application of a systematic environmental

Environmental impact assessment in Lao PDR: A comparative study on the gaps between procedures and

practice with reference to Japan

Sengdeuane Wayakone, Inoue Makoto, Sachihiko Harashina

International Journal of Environmental Sciences Volume 3 No.2, 2013 2081

impact assessment process, review of the criteria, and enhancement of environmental

awareness about the future of the EIA system in Lao PDR.

Keywords: Environmental Impact Assessment, Lao PDR/Japan Comparison, strengths and

weaknesses, procedures and practices

1. Introduction

The environmental impact assessment (EIA) is one of the environmental management tools

that have been established in different countries to ensure environmental protection (Jay et al.,

2007), and it is a process whereby the potential environmental impacts of a proposed

development are assessed at an early stage. Hence, significant impacts and necessary

measures to mitigate them can be identified, irreversible damage to the environment can be

avoided, and sustainable use of natural resources can be ensured (Ahammed and Harvey,

2004; Elliott and Thomas 2009). It should therefore be recognized as a means to achieve

sustainable development (Harashjina, 1994). The EIA is also one of the major tools relied

upon by governments and societies worldwide to achieve environmental management. It is

primarily used to assist them in the identification, prediction, and mitigation of the

environmental impacts of their activities (Dipper et al., 1998; Sadler, 1996; EPA, 1996). In

the academic literature, a broad range of potential purposes is attributed to EIAs, including

the following (Wood, 1995, 2003; Cashmore et al., 2004; Holder, 2004; Jay et al., 2007;

Elliott and Thomas, 2009):

1. Improving the breadth and depth of the information available to proponents and

decision-makers, and ensuring this information is considered in governmental

decision-making processes;

2. Democratization of governmental decision-making processes;

3. Promotion of discursive modes of decision-making;

4. Provision of a forum for interest group bargaining;

5. To legitimatize development and deflect the pressure on governments to address

environmental issues (i.e., assumes EIA is primarily symbolic); and

6. Protection of the environment and promotion of sustainable development.

More than four decades after EIA introduction in the US, a wealth of literature pertaining to

the review of EIA procedures and practices in various jurisdictions has been produced.

During the 1990s and 2000s, several comparative studies evaluating the effectiveness and

performance of EIA systems in developed and developing countries were published (e.g.,

Lim, 1985; Ortolano, 1995; Wood, 1995, 1999; Sadler, 1996; Leu et al., 1997; Barker and

Wood, 1999; Ahmad and Wood, 2002; Kang, 2004; Fadl and Fadel, 2004, Yabar et al. 2012).

International donor organizations have also conducted studies on the effectiveness of their

EIA procedures (Commission of the European Communities, 1993; World Bank, 1997, 2006).

There is general agreement that the EIA has led to improvements in the environmental

management of development activities (EPA, 1996; McDonald & Brown, 1995; Bailey,

1997). However, the development of EIA theory and practice has been accompanied by the

accumulation of a significant body of literature identifying numerous weaknesses in EIA

processes and practices. These include criticisms of the timing of the EIA process relative to

project planning and design, and the poor scientific quality of EIA studies (James, 1995;

McDonald & Brown, 1995; Buckley, 1989; Fairweather, 1989). EIA processes are also





criticized for allowing inadequate public involvement, inconsistently requiring EIA

procedures, facilitating a view of the EIA as a reactive planning tool, and numerous other

weaknesses (Leu et al., 1996; James, 1995; Brown and Hill, 1995; Buckley, 1989).

The recognition of problems in EIA practice has led to numerous studies providing

suggestions for improvement, including an international study of the effectiveness of

environmental assessments (Sadler, 1996). That study identified strengthening follow-up

environmental management activities as one of the major priorities for improving EIA

effectiveness. Ultimately, improving environmental management in EIA practices will help

ensure more environmentally acceptable development outcomes (Sadler, 1996; Hickie and

Wade, 1997).

The main object of this study was to explore and seeks to explain the nature of the EIA

procedure-practice gap in Lao PDR and to highlight the strengths and weaknesses of the Lao

PDR EIA system through comparison with Japanese practice. The study relies on a review of

the literature and on the investigation of EIA legislation, administrative procedures,

guidelines, and relevant documents in Lao PDR to compare with Japan using a development

model proposed by Leu et al. (1996). It includes seven key criteria, with a range of

underpinning subcriteria. For example, the coverage of “Environmental Policies, Regulations

and Guidance” includes consideration of the legal basis of the EIA, formal requirements for

the EIS, EIA Law/Decree, and influence of financing agencies and international conventions

on national EIA practice. Performance of the two countries’ EIA systems in practice is

assessed as full, partial, nonexistent, or not applicable. Another comparison has been applied

using the criteria proposed by Wood (1995) to evaluate the overall performance of seven EIA

systems. The findings of the comparison with the well-established EIA system of Japan can

be used to recommend strengthening EIA procedures and practices in Lao PDR.

2. Lao PDR: Context, Institutional and legal basis for EIA

2.1 Lao PDR in context

Lao PDR is a land-locked and mountainous country, surrounded by Cambodia, China,

Myanmar, Thailand, and Vietnam. Around 70% of the country’s terrain is mountainous,

reaching a maximum elevation of 2,820 meters in Xieng Khouang Province. Population is

about 6.38 million and land area is 236,800 km

2. Lao PDR is covered with a web of rivers

and streams. The largest is the Mekong River, flowing 1,898 kilometers from north to south,

919 kilometers of which forms the major portion of the border with Thailand. It is estimated

that some 60% of all the water entering the Mekong River system originates in Lao PDR.

These rivers and streams provide great potential for hydropower development as 51% of the

power potential in the lower Mekong basin is within Lao PDR. The country is also one of the

most biodiversity rich countries in the region. A relatively low population density and a

moderate rate of natural resource exploitation relative to neighboring countries have allowed

significant natural and cultivated biological resources to survive.

The Lao people are highly dependent on natural resources and the environment for their food

security and livelihoods. Approximately 40% of the rural population is considered at risk of

food insecurity owing to loss of access to natural resources, floods, drought, or a sudden

increase in food prices. Directly and indirectly, natural resources contribute almost three

quarters of per capita GDP and more than 90% of employment in Lao PDR. Almost 60% of

foreign direct investment in Lao PDR is related to natural resources. Aquatic resources

account for as much as 70-90% of protein intake in parts of lowland. Non-Timber Forest





Products (NTFPs) are estimated to make up 40% of total rural income. However,

unsustainable natural resource management practices are causing significant environmental

damage, and have begun to reverse this favorable situation. For example, forest resources,

which once covered about 70% of total land area, had declined to 42% by 2002. Widespread

soil erosion resulting from the loss of forest cover, especially in the uplands, and shorter

fallow periods has also led to declining agricultural productivity. The macro-economy of Lao

PDR continued to see stable growth, with average economic growth at 7.9 percent per year

(higher than the planned 7.5 percent per year). The total gross domestic product (GDP) for

the 2009/2010 fiscal year was USD 6.5 billion, a 1.89 percent increase compared to the

2004/2005 fiscal year. The GDP per capital is US$2,449 (2010) and the annual growth rate is

8.3% (UNESCO, 2012). Table 1 shows the profile of Lao PDR.

Table 1: Country profile of Lao PDR

Geography

Area 236,800 km2

Capital Vientiane (population approx. 800,000 in 2010)

Major cities Savanakhet, Luang Prabang, Pakse, and Thakhek

Terrain Rugged mountains, plateaus, alluvial plains

Climate Tropical monsoon; rainy season (May to November); dry season

(November to April)

People

Nationality Lao

Population 6.38 million (2011)

Population growth 2.1%.(2009-2011)

Languages Lao (official), English, French, and various ethnic languages

Education Literacy 69%

Health Infant mortality rate 77.82/1,000, life expectancy 65.4 years (2009)

Work force 3.691 million; agriculture 75.1%, industry 5.5%, services 19.5%

Government

Type Communist state

Head of state Executive President Choummaly Sayasone

Prime Minister Thongsing Thammavong

National Assembly National Judicial, district, regional, and national Supreme Court

Political parties Lao People’s Revolutionary Party (LPRP) is only legal party

Administrative

subdivisions 16 provinces, and Vientiane

Economy

GDP $1.105 billion (2010)

Per capita income $1,010 (2012)

GDP growth 7.9% (2007), 7.2% (2008), 7.3% (2009), 7.5% (2010), 7.8% (2011)

Natural resources Hydroelectric power, timber, and minerals

Agriculture (29% of

GDP in 2011)

Primary products: Glutinous rice, coffee, maize and sweet corn,

sugarcane, vegetables, tobacco, ginger, water buffalo, pigs, cattle,

poultry, sweet potatoes, cotton, tea, and peanuts

Industry (26.5% of

GDP, growth rate

4.8% in 2011)

Primary types: Copper, tin, gold, and gypsum mining; timber, electric

power, agricultural processing, construction, garments, cement,

tourism

Services 44.5% of GDP

Trade

Exports: $1.950 billion in gold and copper, electricity, wood and

wood products, garments, coffee and other agricultural products,

rattan, and tin. Major markets: Thailand, Vietnam, China,

Switzerland, United Kingdom, and Germany





Imports: $2.258 billion. Major imports: Fuel, food, consumer goods,

machinery and equipment, vehicles and spare parts. Major suppliers:

Thailand, Vietnam, China, South Korea, and Belgium

Sources: ADB. 2012. Basic Statistics 2012. Manila. World Bank. 2012. World Development

Indicators Online, United Nations Educational, Scientific and Cultural Organization

(UNESCO). 2012. Institute for Statistics Data Centre.

2.2 Institutional framework for EIA in Lao PDR

The institutional structure for environmental management in Lao PDR is characterized by: (i)

national committees that guide inter-sectoral coordination among agencies, (ii) national level

ministries and agencies which have a core role in environmental protection and conservation,

(iii) devolution of responsibility for environmental protection from the national government

to provincial and district entities, and (iv) mass organizations which support the government

in promoting public participation and awareness. The Government has formulated a wide

array of legislation and regulations for environmental conservation and protection. The

Environmental Protection Law (1999), supported by its Implementing Decree (2002), is the

country’s principal environmental legislation. It includes measures for the protection and

restoration of the environment, as well as guidelines for environmental and social

management and monitoring.

The Environmental and Social Impact Assessment (ESIA) Department within MONRE is

responsible for overseeing the implementation of the EIA process. MONRE is responsible for

issuing environmental quality standards in cooperation with the line ministries, and for

issuing general EIA guidelines specifying procedures and standards to evaluate and mitigate

environmental impacts caused by development projects.

Development Project Responsible Agencies (DPRAs) are sectoral ministries and other

government attached agencies that are responsible for issuing screening guidelines and

executing the MONRE EIA procedures.

MONRE is responsible for reviewing and approving initial environmental examination (IEE)

reports, the terms of reference (TORs) for EIAs, the final full EIA reports, and the

environmental management and monitoring plans (EMMPs), while the DPRAs are

responsible for granting approval and issuing construction or operation license for projects.

MONRE issues environmental compliance certificates (ECCs) for projects that have

successfully 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 based on their EMMPs.

Facilitators such as consultants and legal advocates have had a relevant role in the EIA

process when they have been employed by developers or project proponents. According to

Lao legislation (prime minister’s EIA Decree), EIAs cannot be undertaken by developer

technical teams, but must be conducted only by consultant firms or by consultants registered

with MONRE, and thus consultancy companies have increased their EIA activities

substantially since 2000.

2.3 EIA legislation in Lao PDR

Since the establishment of Lao PDR in 1975 and the adoption of a new constitution in August





1991, a number of laws and regulations have been created. The 1999 Lao Environmental

Protection Law (EPL) established a framework for management of environmental resources

with the objective of conserving and facilitating the sustainable use of natural resources.

MONRE is responsible for EPL implementation. Other ministries issue guidelines for

implementing provisions but ultimately MONRE issues environmental compliance

certificates.

The first EIA regulation was issued in 2000 and upgraded into the EIA Decree in 2010, which

is the most recent decree that specifies the overall principles for EIAs. It prescribes the

thematic issues to be covered and the outputs expected at the different stages of the EIA

process (pre-construction, construction, operation, and closure stages), and it addresses two

categories of investment projects requiring environmental and social assessments:

1. Category 1: Investment projects, which are small or create fewer impacts on the

environment and society, and require initial environmental examinations (IEEs);

2. Category 2: Large investment projects which are complicated or create substantial

impacts on the environment and society, and require EIAs.

In relation to investment projects classified in Category 1 and Category 2, including projects

provided for in Article 6 (2) of the EIA Decree, the project developer must first obtain an

environmental compliance certificate before concluding any contracts for mining or

extraction of mineral resources or for construction, before any business license can be issued,

and before the developer can start to clear the area, start construction, or implement a project.

An IEE or EIA must be designed with after studying multiple options so that the best option

can be selected. Studies must cover impacts on antiquities, culture, and custom/traditions,

planning solutions for negative impacts on the environment and society, participation of the

people who will be affected by the investment project and other stakeholders in discussion

process at all levels, and drawing up the budget for those activities.

Project developers must ensure public participation and discussion with local administrators

at all levels, with those who will be affected by investment projects and other persons

involved in the preparation and examination of IEE reports or EIA reports.

New investment projects, which are likely to affect other investment projects, must have

cumulative impact assessments, which take into account relationships with existing

investment projects. If an investment project is likely to create impacts beyond national

borders, a transboundary EIA must be conducted.

Organizations involved in the examination of (or deliberation on) IEE or EIA reports are

obliged to monitor the outcomes of measures to prevent and minimize impacts on the

environment and society, or the outcomes of environmental management and monitoring

plans of investment projects. Meanwhile, local administrations are obliged to monitor the

implementation of social management and monitoring plans.

3. EIA procedures in Lao PDR

3.1 Usual EIA process

The EIA Process in Lao PDR is determined by the Decree on Environmental Impact





Assessments (No. 112/PM, 16 February 2010). The EIA process involves four basic steps: (a)

screening and scoping, (b) preparation of the EIA report, (c) review and decision-making, and

(d) post-project monitoring. Investment projects are divided into two categories: IEE and EIA

according to the scale and type of the project. The process requirements include screening

and scoping, and preparation of TORs for EIA activities before the preparation of the EIA

report, and the issuance of an ECC. Figure 3.1 presents the project planning cycle in relation

to the EIA steps that need to be implemented by the project developer, and the duties of

MONRE for reviewing, monitoring, and approving the documents and activities carried out

by the project developer.

Figure 3.1: EIA process and project cycle planning in Lao PDR (Based on EIA guideline

2011)





For project screening, the project developer must submit an investment application to

MONRE (Decree 112/PM, Article 6). The project developer must refer the list of projects for

which EIAs are required, as well as consider the significance of the project’s potential

impacts. Based on the information provided by the project developer, MONRE decides

whether the proposed project needs an IEE or an EIA.

During project scoping, the project developer prepares a scoping report and detailed TORs

for the preparation of the EIA as required by Decree 112/PM (Article 11). The EIA

guidelines provide guidance in section 3 on how to prepare the scoping report and TORs.

MONRE revises, comments on, and approves the scoping report and TORs before the project

developer start EIA preparation.

Figure 3.2: Responsibilities during the preparation of EIA report for project of category 2 (Based on

EIA guideline 2011)

)





EIA report preparation necessitates consultations with local authorities and affected people.

The Public Involvement Guidelines prescribe this consultation process. Figure 3.2 indicates

the most important steps undertaken during EIA preparation, especially in regard to public

consultation. MONRE conducts an administrative and technical review of the EIA report, the

environmental and social monitoring and management plan (ESMMP), and development plan.

The project developer may be required to revise the EIA report, ESMMP, and development

plan in order to comply with the consolidated comments provided by MONRE. Once

MONRE is satisfied with the EIA report, ESMMP, and development plan, the ECC is issued

with specific conditions, if required. In Lao PDR EIAs are most commonly carried out for

hydropower and mining activities. According to a report from the Environmental and Social

Impact Assessment (ESIA) Department, 142 IEEs/EIAs were conducted from 2000 to 2011.

Around 80 projects were reviewed in 2010, among them 52 IEE projects and 28 EIA projects,

and ECCs were issued for only 44 projects. Unfortunately there are no comparable data to

determine the total number of EIAs produced in Lao PDR.

3.2 Problems related to the Laotian EIA procedure

The EIA process in Lao PDR is a comprehensive and lengthy procedure for EIA review and

appraisal, and the procedure for initiating and carrying out EIAs has many steps. IEE reports,

Scoping/TOR for EIAs, and final EIA/EMP reports all require the approval of DPRAs and

MONRE. Depending on a project’s complexity and its implications, a complete EIA

procedure may take at least a year. As a consequence, with some projects the developers

begin implementation while the EIA procedures are still being carried out.

The key priority for each line ministry is the development of its sectors, not environmental

protection. As a result, environmental management and monitoring have been shifted over to

MONRE, except for the Department of Industry, which continues to monitor industrial

discharges to ensure that registered industries meet effluent standards (for both EIA and non-

EIA type projects). This overlapping of responsibilities results in inadequate attention to

evaluating the EMMPs and the adequacy of implemented mitigation measures. There is often

confusion over responsibilities between MONRE and line ministries (DPRAs) in monitoring

activities. However, line ministries often face conflicts of interests in multi-sectoral projects.

Currently, there is no mechanism for coordination between agencies in projects belonging to

more than one sector (ADB-RETA No. 6440, 2010).

Environmental units of line ministries have insufficient staffing to carry out the necessary

functions for implementing EIAs. These institutions’ personnel are constrained by extremely

limited technical, financial, and managerial resources and expertise, particularly in

environmental and social issues. Furthermore, environmental knowledge in non-

environmental agencies is also limited.

Initial environment examinations (IEEs), terms of reference (TORs) for an EIA, and full EIA

reports can be prepared by project owners or their privately hired consultants. When the

project is a public/government project, the relevant DPRA retains a consultant to prepare an

EIA/EMP for its own projects, which leads to poor quality of IEE/EIA reports and is a poor

example for EIA practice.

In general, EIA reports in Lao PDR have tended to underestimate both environmental and

social impacts and their mitigation costs. Negative impacts stemming from the influx of

workers and camp followers have been inadequately addressed and planned for (World Bank,

2004). Project alternatives are not developed adequately and environmental-risk analyses and





cost-benefit analysis are rarely applied in Lao PDR. Cumulative impacts are also not well

identified or properly assessed, although the new legislation requires that a transboundary

environmental impact assessment must be conducted if a project is likely to create impacts

beyond a border.

The overall quality of EIA reports in Lao PDR is unsatisfactory. The lack of expertise among

EIA professionals and approval authorities, along with reluctance on the part of project

proponents to allocate resources are some of the hindrances to raising EIA quality. Reviewing

of EIA reports is generally process- and substance-oriented, except for some comments on

the quality of impact assessment by EIA expert appraisal committees. Most EIA reports

hardly discuss assumptions and limitations of analyses carried out by consultants. Lack of

expertise and limited resources with executing authorities result in inferior decision-making.

MONRE is responsible for public participation during the EIA process. EIA regulations do

not clearly outline requirements for integration of public comments into final EIA reports

produced by project owners. All public hearing costs are paid by project proponents.

Although legal provisions require public participation, there have been no domestic

nongovernmental organizations (NGOs) in Lao PDR until the present (a new NGO regulation

approved in October 2009 permits local NGOs to register with the GOL in 2010). It is NGOs

that usually build public support for or against a proposed activity. The lack of local NGO

activity limits public participation in the EIA process to a large extent (ADB and the Clean

Air Initiative for Asian Cities (CAI-Asia) Center, 2006). However, international NGOs have

at times become involved and pushed for better assessment and planning (e.g., Theun-

Hinboun hydropower project and the Nam Theun 2 hydropower project).

In addition to the EIA decree, the Lao PDR/Ministry of Health developed a Health Impact

Assessment (HIA) Policy and submitted it to the Prime Minister for approval, to be

incorporated into EIAs, but the HIA has not been formally integrated into EIAs as yet.

The absence of “follow-up” environmental management activities within most jurisdictions is

often identified as the most critical weakness of EIA practice (Dipper et al., 1998; Sadler,

1996; Buckley, 1989; Ortolano & Shepherd, 1995; Bisset & Tomlinson, 1988; EPA, 1996).

Another problem facing Lao PDR is that monitoring is not a formal practice; many projects

ignore and do not implement EMMPs and SMMPs. Environmental units of line ministries

and at the central level have insufficient personnel to carry out the necessary functions for

monitoring EIAs. Their personnel also have limited experience and background in

environmental monitoring.

4. Japan: EIA procedures and practice

4.1 Institutions, legislation, and procedures

Japan was the first Asia-Pacific country where a state of environment report was issued at the

local level. Osaka city might be one of the pioneers. It published the first such report in Japan

in 1962. Following the enactment of the National Environmental Policy Act in 1969 in the

United States, many countries established similar EIA systems. In Japan, the Environment

Agency was established in 1971, and the government announced that it would introduce an

EIA system in Japan at the 1972 UN Conference on the Human Environment held in

Stockholm. At that time the Environment Agency could not create a generic EIA system for

application to major projects, but after 1973 the systems relating to port and harbor planning,

reclamation, power plants, the Shinkansen (super-express train), and other projects were





established under the control the respective agencies in charge of those projects.

The need for a generic system with standardized rules was recognized in the course of

implementing EIAs under these systems, and therefore the national and local governments

tried to introduce generic EIA systems in the mid-1970s. The first local EIA ordinance was

established in Kawasaki City in 1976, which was known as the city with the most advanced

pollution-control policies. On the national level, the Environment Agency submitted an

environmental impact assessment bill to the Diet (Japan’s Parliament) starting that year, but

failed every year until 1981 because of strong opposition from the electric power companies

and other industries, and public works agencies including the Ministry of Construction and

the Ministry of International Trade and Industry. Because the bill had been quite weakened

during the five years of consecutive modification, it failed to pass in the Diet in 1983. After

the bill was abandoned, strong demands from environmental groups and most of the general

public for an EIA system led to the creation by the Cabinet of a general, standardized rule as

an administrative guideline for implementing environmental impact assessments. This was

the so-called kakugi asesu (Cabinet-decision EIA) of 1984. However, as it was only an

administrative guideline and a very poor system because of compromises made during the

process of submitting the bill, it did not work very well. The situation changed in 1993 with

the passage of the Basic Environmental Law for pursuing sustainable development (in

accordance with the Rio Earth Summit in 1992), which encourages the promotion of EIA

systems in Japan.

Table 2: Process of establishing the environmental impact assessment law

Year

1969 Enactment of “National Environmental Policy Act

(NEPA)” in the US

First EIA system in the

world

1972 Approval of “Concerning the environmental

conservation measures in relation to public works” by

the Cabinet

EIA for public works

1976 First submission of EIA bill to the Diet

1981 Submission of “Environmental Impact Assessment

Bill” to the Diet (void in 1983)

1984 Decision on the “Implementation of Environmental

Impact Assessment” by the Cabinet

Institutionalization of the

system by administrative

measures

1993 Enactment of the “Basic Environment Law” Legal recognition of EIA

1997 Enactment of the “Environmental Impact Assessment

Law”

Legislation on EIA

1999 Implementation of “Environmental Impact

Assessment Law”

2011 Amendment of EIA Law

Source: Ministry of the Environment, Environmental Policy Bureau, EIA Division.

Furthermore, local governments likewise promoted the creation of their own ordinances and

guidelines after the Kawasaki City ordinance. But other ordinances were passed only by

Kanagawa Prefecture, Metropolitan Tokyo, and Hokkaido Prefecture in the 1980s, while

most local governments created administrative guidelines.

As promoting EIAs was stipulated in the Basic Environment Law, the Environment Agency

conducted studies on the EIA systems of the Japanese national and local governments, and

also those of foreign countries. After these studies, a new bill was prepared and submitted to





the Diet in March 1997. Though electric power companies again mounted strong opposition

and insisted that electric power plants should be exempted, this time they were unsuccessful

because their position was considered inconsonant with the sustainable-society goal of the

times. Finally, on June 9, 1997, the Environmental Impact Assessment Law was passed by the

Diet.

Introducing a legislated EIA system into Japan took a quarter century since the intention was

announced in 1972 at the UN conference held in Stockholm. Japan became the last of the

world’s economically advanced countries to have an EIA law. Table 4.1 shows the long

process of establishing an EIA law in Japan.

By having a statute-law system, EIAs in Japan definitely progressed a step towards

sustainable development. The Environment Agency was elevated to the Ministry of the

Environment (MOE) in 2001, which also reinforced this direction. Though kakugi asesu had

not been effective, the EIA Law should be much more workable. The major characteristics of

the Environmental Impact Assessment Law are as follows.

Scope of application

Thirteen types of projects are subject to the law (Table 3), including the construction of roads,

dams, railways, airports, and power plants. Among them, large-scale projects that could have

serious environmental impacts are categorized as “Class-1” projects and are required to

follow procedures under the law. Projects ranking below Class-1 projects in scale are “Class-

2” projects, for which judgment on whether to follow the EIA procedure is determined

individually. In other words, all Class-1 projects and the Class-2 projects judged to be subject

to EIAs must follow the EIA Law’s procedure, which is carried out at the project preparation

stage. The only public works subject to EIAs at the planning stage are large-scale port and

harbor plans. The affected types and sizes of projects and plans are summarized in Table 3

Table 3: List of projects subject to the environmental impact assessment law

Type of Project Class-1 projects

(EIAs are always required)

Class-2 projects (EIAs

required on a case-by-case

basis)

1. Roads

National expressways

Metropolitan expressways

National roads

Large-scale forest roads

All

4 lanes or more

4 lanes or more,10 km or

longer

2 lanes or more, 20 km or

longer

4 lanes or more, 7.5 km-10

km

2 lanes or more,15 km-20 km

2. Rivers

Dams, weirs

Diversion channels, lake-

related developments

Reservoir area:100 ha or

larger

Area of land alteration:100

ha or larger

Reservoir area: 75 ha-100 ha

Area of land alteration: 75

ha-100 ha

3. Railways

Shinkansen (super express

train)

Railways, tracks

All

Length: 10 km or longer

Length: 7.5 km-10 km

4. Airports

Runway: 2,500 m or longer Runway: 1875 m-2500 m

5. Power plants





Hydropower plants

Thermal power plants

Geothermal power plants

Nuclear power plants

Output: 30,000 kw or over



All

Output: 22,500 kw-30,000

kw

Output: 112,500 kw-150,000

kw

Output: 7,500 kw-10,000 kw

6. Waste disposal sites Area: 30 ha or larger Area: 25 ha-30 ha

7. Landfill and reclamation Area: Over 50 ha Area: 40 ha-50 ha

8. Land readjustment

projects

Area: 100 ha or larger Area: 75 ha-100 ha

9. New residential area development projects


10. Industrial estate development projects


11. New town infrastructure development projects


12. Distribution center complex development projects


13. Residential or industrial land development by specific organizations


Port and harbor planning Total reclaimed and excavated land: 300 ha or larger

Source: Ministry of Environment, EIA in Japan

Screening

Projects designated Class 1 must conduct EIAs. They are large projects that would have

significant environmental impacts, and are required to have a license or special permit, or are

supported or promoted by the government. Class 2 projects, which are smaller, are examined

by the leading authorities to decide whether EIAs are necessary. The decision on whether an

EIA should be performed for a Class-2 project is made individually on a case-by-case basis.

The judgment is made by the leading authority in accordance with the judgment criteria (for

example, decisions on road projects are made by the Ministry of Infrastructure, Land and

Transport; decisions on power plant projects are by the Ministry of Economy, Trade and

Industry). Judgments should take into consideration the opinions of prefectural governors,

who are well-acquainted with their local situations, and the opinions of the general public.

The EIA Law also provides the bases of specific guidelines for projects, such as ports, that

are not directly included in the act.

Global standard participation process

The important characteristic of the law is the process of public participation. The EIA process

starts at a much earlier stage than the former administrative guideline, the kakugi asesu,

which started after completion of the EIA study. Under the law, the process starts before the

EIA study, which is introduced as a scoping process. In this first process, the scoping

document is published, public comments are invited, and the proponent has to conduct the

EIA study in response to the comments. After the EIA study comes the draft EIS stage. Public

comments are also invited at this stage, so that the EIA system has public participation twice,

the same as other advanced systems in the world.

Relationship with local governments





Some prefectural and municipal EIA ordinances that had been in effect before the EIA Law

were quite progressive. For example, the 1976 ordinance of Kawasaki City already included

the concept of self-assessment and the polluter pays principle. And projects were reviewed in

relation to a regional environmental plan for the city rather than in isolation. EIAs were

applied to both public and private works within the city, and specific criteria were used to

determine which projects were subject to EIAs. The social and cultural impact of projects

were evaluated in addition to environmental impacts. Environmental monitoring after a

project was approved was another feature of the ordinance.





Figure 3: EIA procedure of JapanThe mayor approved or disallowed projects based on

advice from an expert committee comprising specialists in environmental science and law.

Some of these aspects of EIAs are not as well specified in current national legislation. The

EIA Law respects these local systems as much as possible. It therefore can expand the scope

of the assessed projects and widen the scope of environmental concerns in local EIA systems.

Additionally, public opinion must be consulted in local systems, and these are reflected in the

comments from mayors of municipalities and from prefectural governors.

4.2 Practice and prospects

Several studies have revealed that the Japanese EIA still has some issues to be resolved. After

10 years of implementation, the Japanese government conducted a review of the practice

over the first decade to determine what revisions should be made under Annex Article 7 of

the law. Kobayashi (2008), Harashina (2008), and others pointed out that the issues

considered should include more effective public communication in screening and scoping

processes, and more active environmental authority involvement. For instance, as public

comments in the scoping process are invited without holding explanatory meetings, there are

usually far fewer comments on the scoping document than on the draft EIS because of

insufficient communication. Kurimoto (2008) mentioned that further studies are needed to

gain knowledge from practices in other countries. Further improvement of Japan’s EIA Law

requires learning from practices in other countries.

Japan has a public participation process in the scoping stage. Public participation in

comprehensive studies starts before development of scoping documents. Channels of public

communication include a variety of voluntary methods taken by local governments such as

public hearings, clearing houses, and stakeholder meetings. Comments provided by the public

are summarized in the Draft EIS, which is submitted to the Environment Minister. In this

way, public display is required after development of the draft EIS by the proponent

(Harashina, 2008; Hayashi K., 2008).

Although the EIA system still has some problems, it has opened the decision-making process

to considerable public scrutiny. This was a major change, particularly in Japan, where public

review of government decisions was rare, and decision-making was opaque in the past

(Harashina, 1998). Healey, M., et al. (2006) noted that no cumulative impact assessment, no

consideration of alternative use of environmental resources, and no post-project follow-up

remain weak aspects of EIAs in Japan. Even though the post-project follow-up is currently

not so bad in Japan, further reforms are necessary. The EIA has dramatically changed the

rules for development planning in Japan and has pushed the country somewhat closer to the

ideal of sustainable development (Harashina, 2001; Healey M. et al., 2006).

IAIA Japan was founded in 1996 for the domestic activities of the International Association

for Impact Assessment (IAIA). The major purpose is research and exchange of knowledge

and information in the field of impact assessment to address the problem of sustainability and

to consider the universal question of how to properly balance the environment with human

activities. One approach of IAIA Japan is to promote and develop transparent decision-

making systems. Research topics of IAIA Japan include cumulative impacts, social and

economic impact assessment, and techniques for citizen participation, especially those that

foster communication. Activities are not limited only to EIAs and strategic environmental

assessment, but include risk assessment, life cycle assessment, and technology assessment. Its

approach can be summarized by the well-known phrase “think globally, act locally.” The





research and practice of impact assessments should be done on a local level with a global

viewpoint. This attitude reflects the new trend of Japanese environmental policy as well.

The Basic Environmental Law of 1993 addressed environmental degradation on a global

scale. The environmental plan of 1994 introduced the long-term goals of the policy as

consisting of resource recycling, harmonious coexistence, social participation, and

international efforts (GETPC, 2003). The plan also outlined the need to incorporate

comprehensive indicators in the monitoring of long-term goals. Along with the

environmental plan of 1994 and based on the 3R principle (reduce, reuse, and recycle), the

government introduced the Law for Promotion of Utilization of Recyclables in 1991.

Subsequently, the government enacted specific laws promoting more judicious use of

resources, including the Containers and Packaging Recycling Law (1995); the, Home

Appliance Recycling Law (1998), the Construction Materials Recycling Law (2000), the

Food Recycling Law (2000), and the End-of-Life Vehicle Recycling Law (2002) (METI,

2008).

In Japan, local governments are playing a leading role in applying strategic environmental

assessments (SEAs). There are a number of innovative schemes and examples of SEA

adoption in Japan to improve the environmental consideration of local government plans.

When the Environmental Impact Assessment Law was enacted, a Diet decision pointed out

the need for SEAs. Many studies were conducted on the use of SEAs throughout the world,

and there were some local pilot applications in Japan. It readily apparent that Japan has a

strong willingness to apply SEAs, but some common problems are: (1) poor alternative

studies in both making and adoption of the recommendations, and in social and economic

comparisons; and (2) weak public participation and later disclosure (Harashina, 2005). So

although Japan is actively considering the creation of an SEA system, more effective work

should be undertaken.

Moreover, taking into account the United Nations Framework Convention on Climate Change

and the progress made at its third Conference of the Parties, and considering that it is the

common challenge for humankind to mitigate global warming through stabilizing greenhouse

gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic

interference with the climate system, and that tackling this challenge voluntarily and actively

is crucial for everyone, Japan showed its concern for this issue by approving the 1998 “Law

Concerning the Promotion of the Measures to Cope with Global Warming.” This law aims to

promote measures to cope with global warming by, for example, defining the responsibilities

of the central government, local governments, businesses, and citizens to take measures to

cope with global warming, and establishing a basic policy on measures to cope with global

warming, thereby contributing to ensuring healthful and cultural living by present and future

generations, and contributing to the welfare of all human beings.

4.3 Comparative systems: a checklist approach

A comparison of systems helps to identify strengths and weaknesses, and the underlying

determinants of the nature of EIA activity in particular situations. The Lao PDR and Japan

EIA systems have been compared using the development of a model proposed by Leu et al.

(1996). It includes seven key criteria, with a range of underpinning subcriteria. For example,

the coverage of “Environmental Policies, Regulations and Guidance” includes consideration

of the legal basis of EIAs, formal requirements for EISs, EIA Law/Decree, and influence of

both financing agencies and international conventions on national EIA practices. Performance

of the two EIA systems in practice is assessed as full, partial, nonexistent, or not applicable.





Full details of the comparative assessment are included as Appendix 1.

Table 5.1 provides an overview, with the various assessments summarized on a five-point

scale from good to very deficient. Both countries are seen to have a reasonable framework of

environmental policies, regulations, and guidelines, but the Lao system lacks good practice

guidance. However, they both have weaknesses in their EIA procedures. Some, such as the

consideration of alternatives, cumulative study, and quality of reports, will be remedied in

Japan under the amended directive. Formal channels for public participation are strong in

Japan, while in Lao PDR they are partial. Lao PDR has weaknesses in the area of monitoring

and enforcement. In Lao PDR, control of the EIA process is limited to EIA approval, with not

many projects being monitored. Formal enforcement is also problematic in Lao PDR. Under

the Japanese EIA Law, recommendations from the Minister of the Environment based on EIA

reports must be respected in the leading authority’s project approval process. In Lao PDR,

however, implementation is sometimes difficult because processes are not carried out with

the appropriate timing and there might be some political influence. There are great variations

in implementation and effectiveness among provinces because they are particularly

vulnerable to political and economic pressures. Underlying many of these issues is the

disparity in resources for EIA activity.

Lao governmental bodies established competent authorities to manage the EIA process. The

enforcement of EIA policies and procedures requires the availability of independent bodies

with adequate power. Since Lao EIA authorities are understaffed and do not possess sufficient

expertise, the actual enforcement and follow-up of the environmental management and

monitoring plan (EMMP)’s components are expected to be weak. The establishment of the

national environmental and social committee and Environmental Management Units aims to

address compliance monitoring; however, these will require adequately trained personnel and

enough manpower to perform these tasks.

Table 4: Summary of comparative performance of EIA Systems

Criteria Lao PDR Japan

1. Environmental policies regulations and guidelines Fair Good

2. Institutional/administrative framework Medium Fair

3. EIA procedure Fair Fair

4. Role of key actors Fair Fair

5. Monitoring and enforcement compliance Deficient Good

6. EIA implementation and effectiveness in practice Medium Fair

7. Availability of resources Deficient Good

Five-point scale from good to very deficient (good, fair, medium, deficient, and very

deficient)

Another comparison has been made (Table 4), applying the criteria proposed by Wood (1995)

to evaluate the overall performance of seven EIA systems. Our comparison used the 14 key

criteria proposed by Wood. The assessment of the Lao EIA system was based on the

perceptions of Lao EIA experts and the relevant government authorities.

Systems of both Lao PDR and Japan were examined, considering the shifts in national

priorities concerning environmental goals as explicitly stated in official announcements, and





after national legislation to implement EIAs had been passed. Nonetheless, the actual

performance of EIA systems seems to diverge significantly from the objectives of the EIA.

Clearly, common screening and scoping methods are the most appropriate for effective

implementation of EIAs. Thus, the adequacy of the scoping approach in this case is largely

based on the competence, expertise, and skills of administrative staff of the EIA authority.

But Lao PDR still lacks skilled technical personnel, material resources, and environmental

data, particularly at the central and provincial, as well as district levels, which is the most

significant deficiency compared with Japan. However, Lao PDR has been more influenced

and assisted by international donor agencies, which can be perceived as having positive

impacts on the development of the country’s EIA process.

It has been increasingly recognized that public participation is of crucial importance as an

enforcement procedure in the EIA system. The current Lao EIA system requires public

participation in forms such as appraisal meetings or hearings for any plan or construction

project that may cause unfavorable impacts on the environment in order to hear the opinions

of the relevant authorities, experts, and the public at the EIA preparation phase. However,

compared to Japanese EIA procedure, the level of public participation is much lower in Lao

PDR in terms of time frame and methods of information disclosure. Public participation is

involved in the scoping and EIS preparation phases in Japan, and much information is made

available for the public.

In Lao PDR, there is a general absence of independent regulatory bodies (other than the

competent authorities) to assess the overall effectiveness of the EIA system, which may be an

indication of inadequate awareness among decision-makers with regard to the importance of

follow-up and monitoring of process performance. One contributing factor may be the

institutional framework in which the EIA process has been established. Although both

countries have defined particular report components, the scopes of concerns are generally

narrow in comparison to those provided in the World Bank’s guidelines (WB, 2006).

Administration of EIAs is more effective in Japan than in Lao PDR because of the

mechanism of the authorizing agencies, which are different depending on the project.

Decisions on EIA implementation are made on a case-by-case basis (Jing Du et al., 2008).

For example, decisions on road projects are made by the Ministry of Infrastructure, Land and

Transport, and opinions from the prefectural governors and municipal mayors who are well

acquainted with the local situation are also taken into consideration, as is the opinion of the

Minister of the Environment. The Minister of the Environment can send opinions on all

projects at any time, and local governments can submit opinions at each stage of a procedure.

The lack of formal provisions for strategic environmental assessments (SEAs) throughout the

region can be attributed to the infancy of SEA systems themselves (Risse et al., 2003). Japan

has undertaken a significant amount of work in studying and introducing SEAs in

international cooperation activities, and the Japan International Cooperation Agency (JICA)

has made much progress. Some local governments have been carrying out SEAs. Based on

the well-established EIA system, Japan has achieved progress in establishing its SEA system,

but more work should be done. However, the SEA system in Lao PDR is still in its infancy

and is grafted onto the existing EIA process, which needs to be promoted not only in the

legislation process but also on the basis of effective enforcement of the EIA system.

One of the common impediments to successful implementation of EIAs relates to the limited

authority of review agencies. This limitation in part arises from the relatively lower status of





review agencies in governmental hierarchies. Lao PDR’s review agency is an

intergovernmental committee starting from provincial level to ministerial concerned level.

The review agencies also suffer from a lack of resources and technical competency, while the

EIA approval procedure is very bureaucratic and easily derailed by political and economic

pressures. These circumstances tend to debilitate the legal and rational authority vis-à-vis that

of other participants in EIA implementation.

Based on the 2010 Environmental Performance Index (EPI), which is a rather complex and

still imperfect index, Lao PDR ranks 80th

out of 163 countries with an environmental

performance ranking of 59.6 out of a possible 100. In comparison, Japan ranked 20th

with a

ranking of 72.5. Iceland ranked 1st with an EPI ranking of 93.5. This index suggests that Lao

PDR still has much to do to improve its environmental performance score. Laos’s lower

ranking can to a considerable extent be attributed to rushed and precipitous development, and

to the extreme land and pollution pressures resulting from this. It should also be noted that

this kind of database is extremely difficult to establish, and that problems exist with the

comparability of data and how variables are measured.

Table 5: Comparison of performance of Lao PDR and Japan systems using the evaluation

criteria proposed by Wood (1995)

Criteria Lao

PDR

Japan Observations

1) Legal basis * +

2) Coverage * *

3) Alternatives in design - + (*) Very limited in Lao PDR

4) Screening * +

5) Scoping * +

6) Content of EIA/EIS * *

7) Review of EIA/EIS * +

8) Decision-making * +

9) Impact monitoring * +

10) Mitigation * +

11) Consultation and participation * +

12) System monitoring * * Limited in Lao PDR

13) Costs and benefits - - (*) Very limited in Lao PDR, and none in Japan

14) Strategic Environmental Assessment (SEA)

- * (*) Just started in Lao PDR, and some progress in Japan

Source: adapted from Wood (1995): Legend for level of adoption/implementation of EIA

practice: +, fully/always; *, partially/ sometimes; -, not/nonexistent; na, not applicable.

5. Conclusions and recommendations

The histories of EIAs by the national governments of Japan and Lao PDR are different. Japan

started crafting its policy and guidelines in the 1970s and passed its legislation in the 1990s.

However, Lao PDR started in 1993 with the first National Environmental Action Plan, which

provided a framework for EIAs. Both countries were rather slow to pass and implement

legislation, reflecting a continuing emphasis on economic growth over environmental

protection. In Lao PDR, even before EIAs were implemented, government ministries were

required to have their own EIA procedures, standards, and guidelines, whereas in Japan the





cities and prefectures led the way with their EIA ordinances. Japan’s EIA Law is more

prescriptive than that of Lao PDR, and Japan appears to undertake more in-depth EIAs than

does Lao PDR.

EIA systems have their strengths and weaknesses, as shown by the comparative study of

system in two major countries, Lao PDR and Japan. However, the problems in less-developed

countries such as Lao PDR are often more acute by virtue of the human resource constraints

and economic and political pressures facing the country, as well as by the inherent limitations

in detailed procedures and legislation. There are marked gaps between policy and

implementation, and between EIA procedures and EIA practice. Possible ways forward need

to consider both the institutional framework and role of particular actors, and the EIA

procedure itself.

In Lao PDR, the coordination among EIA proponents, consultants, relevant ministries, local

authorities, planners, and decision-makers is generally weak compared to Japan. This is

leading not only to inadequacies in scoping, in impact assessment, and in consideration of the

concerned departments’ views in EIA reports, but also to the start of developmental projects

before getting EIA clearance. Lack of coordination not only causes delay in decision-making,

but also hinders effective implementation of environmental regulations.

Thus, most deficiencies in EIA systems can be attributed to the poor performance of

foundation measures (availability of guidelines, EIA system implementation monitoring,

generally weak local expertise, and inadequate training and capacity building initiatives).

These measures, by definition, serve to promote good practice and underpin the successful

application of systemic approaches. Hence, their absence or poor quality will negatively

influence the effectiveness and robustness of EIA implementation and practices in Lao PDR.

The major difficulty faced by MONRE in effectively carrying out monitoring activities is

limited institutional capacity, arising mainly from insufficiencies in the numbers of suitably

qualified and experienced personnel, and in monitoring equipment and resources, as has

generally been the case with environmental authorities in other developing countries (Ahmad

and Wood, 2002; Momtaz, 2002; Werner, 1992). The systems for implementing mitigation

measures and for monitoring impacts are also ineffective.

Our analysis also indicates that there is insufficient expertise and awareness among decision-

makers and the general public concerning the importance of appropriate environmental

management, due to the poor enforcement of environmental legislation and EIA regulations

in particular, as well as the lack of adequate monitoring programs. Clearly, this low-income

country must introduced methods for improving the population’s quality of life by, for

example, raising literacy and creating better jobs. If the population has secured its basic

requirements for maintaining an adequate lifestyle, this may increase local demands and

pressure on decision-makers to account for the environmental implications of development

activities.

In most developed nations, public involvement is mandatory at various EIA stages, such as

screening, scoping, report preparation, and decision-making (Wood, 1999). But

implementation in Lao PDR’s public hearings is inadequate and largely limited, particularly

the involvement of domestic and international NGOs. Moreover, the points raised in public

hearings are rarely incorporated in planning and decision-making. Hence, the effectiveness of

public participation in the Lao EIA system is yet to be evaluated, and requires development of

good guidelines for public involvement.





For all participants, the EIA database in Lao PDR is inadequate. The development of

improved environmental data needs to be better managed, and data could also be exchanged

among relevant sectors, local planning bodies, and consultees. Research is also needed to

develop environmental impact indicators and EIA methodologies tailored to the specific

conditions of Lao PDR.

The adoption of certain policies regarding the institutional aspects of EIAs would enhance

their effectiveness. First, the status of the review agency in each government hierarchy level

must be raised. Possible options for doing this include granting an independent ministerial

status to the review agency or placing it under a more powerful ministry directly in charge of

development and planning. Second, the environmental concerns of responsible agencies

should be stimulated. Stricter enforcement mechanisms, environmental education for

government officials, and upgrading intergovernmental mediation processes might prove

useful in changing the behavior of responsible agencies. Third, EIA procedural rules must

define clearly the roles of participants and their interactions.

Based on lessons including those from the Japanese experiences, some recommendations to

strengthen the effectiveness of the EIA system in Lao PDR are:

1. Strengthen integrated coordination between MONRE and relevant sectoral authorities.

Better coordination at local levels is needed. The exchange of experiences between

MONRE and universities and other academic institutes needs continual improvement.

2. Ensuring effective public participation in the EIA system is a key component of

helping to bring procedural democracy and better acceptability to decision-makers

into the EIA process (Aschemann, 2007), which should be monitored by the ESIA

Department working closely with the provincial and district authorities in order to

foster procedural democracy. Both the scoping and review stages in the EIA process

require effective consultation with regulatory authorities, stakeholders, and the public

to ensure that all relevant viewpoints are taken into account throughout. The

developer should incorporate the public’s and stakeholders’ concerns into the EIA

report.

3. Introduce mandatory requirements for public access to reports by affected groups,

academic institutes, and NGOs; develop a central library of EIA reports. In addition,

introduce a baseline data system for various components of the Lao environment; data

that are held in many different government departments should be obtainable, even at

some cost.

4. Develop a systematic framework for EIA reviews, such as by introducing review

criteria to improve the review process of EIA reports and to reduce subjectivity. A

satisfactory review of an EIA should be based on multidisciplinary criteria and a

process that should involve extensive consultations with specialists and concerned

members of the public.

5. MONRE should conduct project follow-ups and conduct site inspections during both

construction and initial operation to verify whether the developer has implemented the

mitigation measures described in the submitted EIA and EMMP/SMMP, as well as

monitor predicted environmental impacts. These inspections are also essential to make

sure that all environmental and social conditions have been satisfied. Thus, the EIA

report should be an integral part of the license documentation and should be available

to the ESIA Department inspectors during their frequent inspection visits. In the

meantime, international development agencies such as the World Bank, ADB, UNEP,





and USAID should increase their efforts to provide assistance for the institutional and

procedural aspects of EIA implementation.

6. Mitigation strategies should be considered both in relation to individual impacts and

collectively for all impacts. Moreover, mitigation should consider technology

standards such as best available technology (BAT) and best practical environmental

option (BPEO). Promote research on potential innovative models that would match

the requirements of the region as well as the country.

7. Implement a systematic framework for consultant accreditation in order to ensure EIA

best practice and to monitor the capabilities and qualifications of EIA consultants.

Hence, the ESIA Department should accept EIA reports from accredited EIA

consultants only.

8. Environmental legislation should introduce penalties as a tool for enforcement and for

encouraging compliance with environmental protection rules and requirements.

9. Raise public environmental awareness and empower the public to participate actively

and knowledgeably in environmental decision-making. Initiate a dialogue among

concerned stakeholders in the public and private sectors. MONRE should also engage

in a campaign of education through the media (radio, television, and newspapers) on

the necessity of EIAs to increase the public’s awareness of the concept as well as their

participation in the process.

10. Emphasis is needed on improving capacity building through continuous in-house

training and on increasing the number of EIA professionals within MONRE and on

the local level, as well as on promoting environmental awareness.

11. Other improvements in EIA procedures might include mandatory scoping, with the

developer presenting draft TORs to the competent authority at an early stage in the

EIA process. EIA review could be improved through training and guidance on review

methods. Monitoring also needs to be greatly improved, and preferably should

developers to the competent authorities present mandatory, with periodic reports. It

can be hoped that, with such changes, and along with the introduction of SEAs for the

higher tiers of development actions, there will be some progress in reducing the

procedure-practice gap in Lao PDR. This should help to turn EIAs into the

anticipatory and preliminary tool they ought to be, rather than a residual and marginal

add-on to planning decisions already made on political and economic grounds and

often with minimal consideration of environmental impacts.

Nonetheless, there are also some opportunities other than legal ones to improve the system,

such as political support for EIAs, independent reviews, and role of NGOs and electronic

media in taking public concerns into consideration. Thus, there is much hope that the EIA

system in Lao PDR will be further strengthened in the near future.

Acknowledgements

The comments of Department of ESIA, MONRE, and National consulting group (NCG)

teams are gratefully acknowledged. We also express our appreciation to the anonymous

reviewers who gave constructive feedback.

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Other materials

Lao PDR

1. Lao PDR 1999. The Law on Environmental Protection (ELP)

2. Lao PDR 2002. Decree on the Implementation of the EPL

3. Lao PDR 2010. Prime Minister’s Decree of Environmental Impact Assessment, No

112/PM, 16 February 2010.

4. Lao PDR 2005. Prime Minister’s Decree on Compensation and Resettlement of People

Affected by Development Projects No. 192/PM, 7 July 2005.

5. Lao PDR. WREA 2010. Agreement on the National Environmental Standards

6. Lao PDR 2011. Regulation for Implementing Decree 192/PM on Compensation and

Resettlement of People Affected by Development Projects No 1432/STEA, June 2011.





7. Lao PDR. MONRE 2011. Public Involvement Guidelines (Lao version)

8. Lao PDR. WREA. Joint UNEP and UNDP Poverty – Environment Initiative 2010.

Guidelines for IEE and EIA Compliance and Effects Monitoring in Lao PDR.

9. National Policy on Environmental and Social Sustainability of the Hydropower Sector

in Lao PDR, No. 561/CPI, June 2005

10. MONRE 2011. EIA Guidelines, Rontij and the Finnish Environment Institute (SYKE)

Japan

1. The Basic Environment Law 1993. Law No. 91. Effective on 1993/11/19

2. Environmental Impact Assessment Law 1997. Law No. 81, 1997

3. Law relating to Protection of the Environment in Antarctica. 1997. Law No. 61, 1997

4. Japan's Official Development Assistance Charter, June 30 1992.

5. Sectoral Study for Development Assistance, "Environment", Dec. 1988, Aid Study

Group on Environment, JICA.

6. OECF Environmental Guidelines, 2nd Version, August 1995, OECF.

Appendix 1: Check-list of EIA practice: Comparing performance between Lao PDR and

Japan (in the case of EIA Law, 1997)

Items Lao PDR Japan Observations

I. Environmental Policies, Regulations, and

Guidance

Legal basis of EIA:

− Implemented through primary regulations

(mandatory) + + Clearly defined

− Implemented through secondary regulations

(mandatory) and guidance (recommended)

* + (not much in Lao

PDR)

− Implemented through administrative arrangements - -

− Implemented retrospectively - -

− Appeal and dispute settlement * -

− Compliance monitoring and enforcement * + Limited activities

in Lao PDR

− Strategic environmental assessment - * No guidelines in

Lao PDR

Requirements formally included in the EIA report

(EIS) scope:

− Defined format and contents * +

− Proposal-specific terms of reference * +

− Alternatives and no action strategy * *

− Cultural, social, and economical issues + -

− Impact mitigation measures * +

− Environmental management and monitoring

programs * *

− A nontechnical summary - -

Complete Set of EIA guidelines from the





environmental agency for:

− Technical guidelines for various types of

development * + Japan: Generic and

basic GLs provided by MOE and also project-specific GLs are provided by leading authorities.

− EIA procedures (e.g., screening, scoping, impact

analysis, etc.) * +

− Public involvement and participation * +

− EIA/EIS preparation * +

− EIA and EIS review * +

− Appeal * - Japan: Very few connections to the court in the case of EIAs.

− EIA compliance monitoring and enforcement * +

− Strategic environmental assessment - - Japan: None under EIA Law of 1997, which will be changed after 2013 by the 2011 amendment.

− Influence of the financing agencies guidelines on

the national EIA regulations

* -

− Influence of the international conventions on the

national EIA practice

* *

II. Institutional/Administrative Framework

Existence of a core environmental agency

responsible for the development of the EIA system

+ +

EIA centralization/decentralization:

− A core agency and local planning authorities

(LPAs) * +

− A core agency and various regional agencies * +

Integration/co-ordination mechanisms for EIA

implementation:

− Formal mechanisms established * +

− EIA management units set up in participating

agencies * NA Japan: Not

applicable as EIA application is project-specific.

− Integration of interagency participation by the core - NA Japan: Not applicable as EIA application is project-specific.

− Integration of local authorities’ participation by the

core/regional environmental agencies * +

− Integration of the Statutory Consultees (SCs) by the

core/regional environmental agencies or by the local

authorities

- NA Japan: Not applicable as EIA application is project-specific.

EIA/EIS review authorities independence from

project proponents

- +

International assistance for development of the

core and regional environmental agencies

* - Much assistance in

Lao PDR.

III. EIA Procedure

Steps developed in the EIA procedure:

− Screening process * *

− Scoping process * + (Not well in Lao

PDR)





− EIS preparation

o Alternative analysis * * (Not well in Lao

PDR)

o Environmental risk analysis - * (Not much in Lao

PDR)

o Cost–benefit analysis - - Limited in Lao

PDR

− Independent EIA/EIS review states * + Japan: Waste disposal sites are exempted as MOE is in charge of projects.

− Public proponent’s response to the representations * +

− EIA/EIS revision by the proponent, based on the

comments to produce the final Es * +

− Publicity of the EIA decisions and results - + Limited in Lao

PDR.

− The EIA review bodies have a veto power over the

decision-making - - Japan: Though

MOE has no veto, the comments of MOE must be respected in the approval process.

− Formal mechanisms for appeal and dispute

settlement * * Limited in Lao

PDR. Japan: Not specific to EIAs. They come under the general system for environmental dispute resolution.

− Clear limit for each step of EIA procedure + +

Formal channels for public participation in the

EIA procedure:

− Prior to the EIA study (i.e. scoping, public

presentation) - +

− During the EIA study * +

− After the EIA study (formal mechanisms for public

notification and inspection) * + Limited in Lao

PDR. Japan: EIA reports are disclosed to the public, but no public comments are invited at this stage.

− Access to the EIA/EIS * + Limited in Lao

PDR.

− Public audience * + Limited in Lao

PDR.

− Involvement in the EIA/EIS review * * Limited in Lao

PDR.

− Involvement in the decision-making * - Limited in Lao

PDR. Japan: Project decision-making is separated from the EIA process. But comments from MOE must be respected in decision-making by the project approving authority.





The requirements of the International financier

agencies affect the national EIA procedure

* NA Sometimes in Lao

PDR.

IV. Role of the Key Actors Involved

The necessary roles and responsibilities have been

defined and the appropriate actors allocated to

perform these tasks have been arranged:

− Independent EIA/EIS review bodies organised by

responsible agencies - + Sometimes in Lao

PDR.

− Mandatory requirements for consultation with

Statutory Consultees (SCs - - Sometimes in Lao

PDR.

− Involvement of a supreme authority to resolve

appeals regarding decisions on EIA cases + * Japan: Not specific

to EIAs. Comes under the general system for environmental dispute resolution.

− Involvement of judicial institutions to resolve

appeals regarding the legal and/or administrative

process of EIA

* * Sometimes in Lao

PDR. Japan: Not specific to EIAs. Comes under the general system for environmental dispute resolution.

Involvement of international financing agencies in

domestic EIA cases


PDR.

V. EIA Compliance Monitoring and Enforcement

EIA formal compliance monitoring programs in

place:

− Carried out by the core/regional environmental

agencies * * Japan: Mostly

carried out by proponents under the control of prefectural environmental departments.

− Carried out by local or other competent authorities - * Japan: In some cases carried out by proponents under the control of municipal environmental departments.

− Involvement of independent review bodies in the

programs - * Japan: In some

cases, monitoring data are examined by the peer review committee of the prefecture and/or municipality.

− Submission of regular monitoring results by the

proponents * + Sometimes in Lao

PDR.

− Formal mechanism for reviewing the results of

compliance monitoring * * Sometimes in Lao

PDR.

− Involvement of local communities in the program * * Sometimes in Lao

PDR.

− Access to the results of the compliance monitoring

and enforcement program by the public - *

Formal enforcement of EIA decisions:

− Defined penalties/sanctions against noncompliance

with EIA decisions * - Japan: Penalties are

not defined, but if proponent raises a compliance problem that could





greatly risk its reputation. In Japanese society, this mechanism works well sometimes especially in the private sector.

− Channels for public to appeal against

noncompliance with EIA decisions - *

− Involvement of judicial institutions in EIA

enforcement * -

− Linked with the permitting/licensing system * * Japan: Though MOE has no veto, comments from the minister must be respected in the process of permitting the project by the leading authority.

Involvement of the international financing

agencies in the national compliance

monitoring/enforcement

* NA

VI. EIA Implementation and Effectiveness in

Practice

EIA influence in the project cycle:

− The full EIA processes are being conducted at

appropriate timing * + Japan: Mostly yes.

− Proceed in association with feasibility study * +

− Use to justify project decisions that have already

been made * + Japan: Because of

this, the scope of alternatives is sometimes too narrow.

− Decision-making significantly affected by the EIA

results * * Japan: Comments

from the Minister of the Environment must be respected to permit the project by the leading authority.

− Projects frequently modified as a result of EIA

findings * *

− Mitigating measures carried out satisfactorily * *

− EIA used as an effective instrument of planning * *

Influence of political, social and economic factors

in EIA:

− Higher priority of economic growth than that of

environmental protection * * Japan:

Environmental regulations are strictly observed, but additional measures for enhancing quality are sometimes limited.

− Political factors frequently affect decisions on EIA

cases * * Japan: This may

happen in some huge public works, but not so often in the private sector.

− Awareness and ability of the public to participate in

the process * +

− Influence of NGOs on EIA cases * +

Appropriate EIA/EIS approach to recent





environmental issues/trends:

− Sustainable development/Agenda 21 * *

− Use of best/clean technologies - *

− Social/economic impacts * - Japan: Social and economic impacts are beyond the scope of the EIA Law.

− Global changes and 21 Agenda * *

Opportunities to experiment and “learn by doing”

in order to develop more appropriate and effective

administration and mechanisms

* *

Regular audit of EIA/EISs by the core agency

review

- * Japan: Not exactly auditing,but reports must be submitted to the MOE, which files them.

Regular audit of the EIA system by the core

agency or other competent authorities

- + Japan: Not so frequent, but 1997 EIA Law requires that its implementation must be reviewed by an experts committee organized under MOE on a decade basis. The 1997 law was amended in 2011 and will be implemented from 2013.

Regular assessment of the general EIA results and

effectiveness by an independent board or national

council (based on evidence of monitoring, audits,

etc.)

- * Japan: Not so intensively, but MOE watches with the help of external experts.

Strategic environmental assessment (SEA)

formally implemented

* - Limited in Lao

PDR. Japan: Not under the 1997 EIA Law, but will be implemented from 2013 under the amendment of 2011.

Influence of the international NGOs on domestic

EIA decisions

- - Japan: Not directly. But in very rare cases it might happen indirectly as in the Fujimae tidal-flat case, Nagoya in 1998-1999.

Influence of international pressures and criticisms

on the national EIA practice

* - Limited in Lao

PDR

VII. Availability of Resources

Extensive commitment of governmental staff to

implement EIA:

− At central level (core/regional agencies) * *

− At local level - +

− Regular EIA training courses organized/

coordinated * + Japan: Not only

MOE but also other leading authorities and the consultants association have their own EIA training courses.





− Database of subject experts in place, from which

experts could be called upon for consultation - - Japan:

Governmental bodies have none, but there is an EIA academic association.

Adequate measures in place for upgrading human

resources outside the government:

− Training courses organized by the core/ regional

environmental agencies available to consultants

proponents, or NGOs

* + Sometimes in Lao

PDR.

− Training courses organised by nongovernmental

institutions available to consultants, proponents and

NGOs

* + Sometimes in Lao

PDR.

− Existence of a consultant registration system * + Sometimes in Lao

PDR.

− Database of consultants established for reference - +

− Periodical notice and publicity of good EIA

practice performed by consultants and proponents - *

Adequate physical resources for EIA

implementation:

− Central environmental database established * + Limited in Lao

PDR.

− EIA tracking system established - *

− Central database of EIA reports established * + Limited in Lao

PDR.

− Regular EIA status reports or newsletter published

by the core/regional environmental agencies - *

− Use of GIS in EIA and national/regional planning

by governmental agencies * * Limited in Lao

PDR.

− Accessibility of the public and NGOs to the

aforesaid facilities - +

Availability of international technical supports

(e.g., advisorship, EIA training)


PDR.

Availability of international financial supports

(e.g., the development of EIA and facilities)


PDR.

Legend for level of adoption/implementation of EIA practice: + Fully/always; *

Partially/sometimes;

- Not/nonexistent; na not applicable

Documents

Environmental impact assessment in Lao PDR: A comparative ... · Environmental impact assessment in Lao PDR: A comparative study on the gaps between procedures and practice with reference