The Role and Problems of Environmental Impact Assessment in Governing Hydro-Power Projects in Cambodia

Hydro-power projects on the Mekong River may cause great impacts on sustainability of the river. This paper investigates the role of Cambodia’s environmental impact assessment (EIA) in governing hydro-power projects and examines whether the current EIA legal regime is capable to address the challenges raised by hydro-power projects. The author finds that Cambodia has established high standards in EIA legal framework. Some proposed requirements, such as the consideration of the impacts of climate change and trans-boundary impacts, may constitute great challenge for future enforcement. Case study in hydro-power projects suggests that the implementation of EIA is far from fulfilling the purposes promised by the black letters in the law. Currently, the main difficulties in implementation are lack of capacity building and public participation. The imperfection of land law as an external element is another obstacle to the effectiveness of EIA law. As a mid-stream riparian state of the Mekong River, on one hand Cambodia is facing potential negative impacts of hydro-power projects in Lao PDR and China, on the other hand, its hydro-power projects may add more threats to the sustainability of Mekong River. This paper argues that for the sustainability of the Mekong water system, Cambodia should implement its EIA law seriously and speed the work of land titles.

environmental issues accrue. The economic growth has substantial impact on its environment, and in recent years Cambodia is making stride to improve its environmental legal structure, in which the environmental code is the most prom- Focusing on EIA-related issues in Cambodia, this paper consists of four sections with a few suggestions in the conclusion. It starts with the methodology and the factual background in the first section; the second section introduces the basic legal structure of EIA practice in Cambodia; the third section discusses the implementation of EIA in Cambodia's hydro-power sector and possible causes in practice for the troubles as having been criticized in some existed projects; and the last section focuses on loopholes in laws which should be tackled with urgently for the sake of future improvement of hydro-power governance in the country.

Methodology
The methodologies used in this paper include literature review regarding relevant laws and controversial issues about hydro-power projects in Cambodia, and interviews. Through literature review as displayed in the second and fourth sections, the author concludes that the EIA legal mechanism of Cambodia is of high standard, but with problematic loopholes in land legislation and land management. 4 After field work and interviews related with disputed issues, the author identified some causes for the difficulties in reaching a higher EIA performance, for which political authorities and environmental personnel should bear responsibilities, as will be seen in the third section. 1 The latest available English version is the seventh version draft. See at <http://www.vishnulawgroup.com/attachments/article/60/NR%20and%20E%20Code%20Draft%207 %20(Final)%2031- DEC-16.pdf> [accessed: 2-05-2020]. 2 While some praised the government's strong commitment in the code, the expected better access to information and ability to participation in decision making, some worry about its future implementation after it is passed and adopted. See at <http://www.phnompenhpost.com/national/environment-code-due-year> [accessed 30-04-2020]

Factual Background: Impacts of Hyro-Power Dams for Cambodia
Dams have been promoted as an important means of meeting water and energy needs, and as a long-term, strategic investment with the ability to deliver multiple benefits (WCD, 2001). Up till 2012, about 12 mainstream projects along the lower Mekong river were under consideration (Grumbine et al., 2012 drought and loss of traditional fish, which are likely to lead to lower ecosystem productivity with significant impacts on ecosystems and the communities that depend on the river. The lower Mekong dams will drastically compound these trans-boundary impacts, turning 55 per cent of the lower stretch of the river into a series of reservoirs, blocking critical fish migration and the flow of nutrient-rich sediment necessary to sustain regional agriculture and food security (VNS, 2017).
With an identified high potential of hydro-power development in Cambodia projected at more than 10,000 MW, among which 50% in the Mekong River mainstream, and 40% in the tributaries of Mekong River (Piseth, 2009

EIA Legal Framework of Cambodia: Moving to Higher Standards
The progress in environmental legislation in Cambodia demonstrates the political will in the country to pursuit environmental protection, which is crucial for the enhancement of EIA procedures. However, high standard of environmental legislation not necessarily always brings good implementation, especially in developing countries (Briffett, 2000) such as Cambodia. The causes for this lack of synchronism between legislation and implementation vary in different countries (Clausen et al., 2010). Currently, the rapid increase in new hydro-power projects and proposals is a dominant issue in the Mekong . The Donle Sap Lake in Cambodia covers an area considered the heart of the lower Mekong Basin, which creates quite complicated hydraulic and ecological processes in the area (Hoanh et al., 2010). By analyzing the merits and problems in the EIA legal structure and EIA practices in hydro-power projects, the author concludes that As a means to examine, analyze, and assess planed activities (UNEP, 1987;Bates, 2010), EIA is a crucial process in major projects with a view to provide scientific guidance for decision making, and to ensure environmentally sustainable development. While lower Mekong countries are developing with extensive hydro-power infrastructure (Grumbine et al., 2012), EIA is a systematic process for the region to obtain effective examination and evaluation of the environmental effects of proposed activities and to avert possible damage to environment. These laudable advances in environmental legislation are good signs, as they demonstrate the awareness of the government and the society to amend some of the blemishes in the EIA system, and protect the environment in a more effective manner.

EIA Procedures: Supported by Environmental Laws but with Flaws
Cambodia has established the legal structure with a comprehensive structure in administration and high standards in EIA, and it is still moving forward in this regard. The high standards for EIA 7 were ingrained by the consideration of climate change, the concept of protection for indigenous people in the guidelines, requirements of trans-boundary impact assessment and the principle of gender equality in the draft Environmental Code. Compared with the scant one sentence for public participation in the Sub-decree on Environmental Impact Assessment Process, 8 the more detailed guidelines on public participation revised on 7 June, 2016, covering definition, related legal aspects, to procedures of participation in each EIA step, signaled one of the new momentum in EIA legislation of Cambodia. 9 In 1996, Cambodia adopted the Law on Environmental Protection and Natu- of Sub-decree on Environmental Impact Assessment Process, 1999). Despite the overall clear responsibility distribution among environmental officials in the sub-decree, the EIA administration is not satisfactory in reality. As illustrated with more details in next section of this paper, the low responsibility requirement (Article 18 of Sub-decree on Environmental Impact Assessment Process, 1999) and the disappointing regulation implementation are the sticking points in EIA. Stricter performance requirements, greater clarification and understanding of each stakeholder's role (Saunder & Bailey, 2009) in EIA are the ways to move forward.
The 1999 Sub-decree requires all existing project owner or responsible person compile initial EIA report and submit it to the MoE for a review at least within a year of the promulgation of the sub-decree (Article 21 of Sub-decree on Environmental Impact Assessment Process, 1999). However, given the situation that about 80% of the 100 or more on-going projects 10 still have not submitted EIA reports to MoE, the administrative decentralization might be a solution (Brandon & Ramankutty, 1993;Niazi, 2011;Serey, 2007;Batterbury & Fernando, 2005).
While environmental legislation is a strong priority of the Hun Sun government (Amaro, 2016;Bunthoeun & Kimthach, 2016), the effectiveness of EIA is impaired by the low requirements on the performance of officials in report reviewing and the unchecked situations of existing projects in environmental assessment. The new requirements for trans-boundary impact assessment, strategic environmental impact assessment and consideration of climate change in environmental management laid out in the draft Environmental Code might face challenges in future enforcement. The other two pieces of laws, although do not directly regulate EIA are constraining the improvement of EIA practices in the country, the Land Law and the Expropriation Law, will be discussed in the third section.

Implementation of EIA in Hyro-Power Projects in Cambodia
Despite the laudable administration distribution laid out in legislation and guiding documents, the implementation of EIA in Cambodia is far from satisfactory. Many cases happened in Cambodia related to public welfare and social well-beings have caused great attention among international societies. Apart from loopholes in the legal framework which will be discussed separately in the fourth section due to its length, intervention of political authorities, poor performance of EIA personnel and lack of public participation during consultation are the most often heard criticisms from media, locals and environmentalists in 10 Lack of EIA report submitting among on-going projects is a hard reality that environmental officials are frank about. The director of EIA Department mentioned in an interview that currently among the over 100 projects that were entitled to submit EIA reports, about 20% have done so as required. Seventeen years have passed since the adoption of the 1999 EIA sub-decree, the majority of project owners are acting against the sub-decree, and violating the law.

Political Decision Making in Hydro-Power Projects
The rate of public participation in hydro-power projects of Cambodia were low, what's worse, the no process of public participation did happen in some cases. In the Kamchay Project, 11 environment assessment and information disclosure about projects came late (Grimsditch, 2012). In the Lower Sesan Dam Project, the serious negative environmental and social impacts of projects haven't been mitigated or dealt with properly (Baird, 2009;NGOF, 2015). The Cheay Areng Dam in the Areng Vally is anticipated with serious social and environmental ramifications. It was criticized for its vested political interests, high capital inputs but low return, and with a concomitant risk of potential political instability (Yeophantong, 2016).

Environmental Personnel Lack of Capacity
EIA consultants and environmental authorities are the two actors that substantially influence the quality of EIA apart from project owners. The poor performance of environmental personnel exists widely in the scoping, assessment, review, and monitoring of projects' environmental impacts in all sectors, which incites detrimental negative impacts in hydro-power project assessments.
The substantive performance of EIA system is defined as the extent to which the EIA process contributes to the EIA objectives: environmental protection or the sustainable development (Kolhoff et al., 2015). EIA consultants have a strong position for guiding the quality of the environmental assessment, partly due to the key knowledge they hold, and partly due to their early involvement in making strategic decisions on what issues and impacts to include in the EIA profile and how they should be addressed (Kagstromin, 2016 As it is required in the consultation and communication with local communi- 11 The brief information about the Kamchay Hydro-power project in the EXCEL titled "List of EIAs received by NGOF 12 September 2013", which can be downloaded at <http://www.ngoforum.org.kh/index.php/en/library/useful-documents>[accessed 2-05-2020]. ties, project owners and government officials, environmental consulting firms should hire sufficient and qualified employees with knowledge in the specific areas correspond to the companies' registered lines of business. The back-and-forth consulting and compiling process during EIA report preparation requires strong capabilities in different areas, depending on the firm's sphere of business. It takes considerable political will and administrative drive to implement environmental provisions, and the political commitment to protecting the environment is increasing in Cambodia. What is the weakest in government institutions are regulation enforcement and environmental impact monitoring (Brandon, 1993). In Cambodia, it is specifically about the low responsibility requirement and the sometimes disappointing regulation implementation.
Unfortunately, the responsibility requirement is low for environmental officials in terms of reviewing EIA report. Article 18 of the 1999 EIA Sub-decree has raised eye-brows since the sub-decree was passed and entered into force. It provides that if the MoE fails to respond its finding and recommendations back to project owner and to project approval ministry or institution within 30 working days (commencing from the date of registration of their initial EIA report and pre-feasibility study report), the approval ministry or institution will assume that the revised Initial Environmental Impact Assessment (IEIA) report has complied with the criteria of the sub-decree (Article 18 of Sub-decree on Environmental Impact Assessment, 1999). This provision is disturbing, as it allows for groundless assumptions to be made by authorities when no respond and recommendation was received, whatever the reason for such lack of feedback. It offers a "back door" for MoE to get away from the charge of dereliction, as no one can eliminate the possibility of duty negligence from MoE officials under such a provision.

Lack of Public Participation in Consultation
Public participation has been regarded as one of the crucial steps in environmental protection to eliminate negative side effects causing to affected local people. Disparity of information exists between the investor and those likely to be affected by a project. Without the public understanding the basic nature of the proposed project or key terminology being used, there will be no effective dialogue with the local community. Engaging with stakeholders up front reduces the likelihood of misunderstandings during the consultation stage and ultimately leads to more efficient and effective consultations (Karol & Neyman, 2015).
In Cambodia, awareness of public participation in environment issues has been enhanced in recent years. It has been promoted partly due to the requirements of some international project fund providers at the early stage of project application. In a statement released in August 2016, USAID announced that it is seeking public comments before pumping $10 million to $25 million into projects to promote the responsible land management and sustainable development of the protected area in Prey Lang (Maza & Sengkong, 2016). However, the overall rate of public participation in development project remains low in Cam- bodia. Causes for the situation cannot be exhausted in this paper. But based on the author's research in Cambodia during the summer of 2016, there are at least the following causes: no effective way for the public to obtain project information; officials' reluctance to provide project-related information to the public; lack of opportunity or awareness among locals to participate in public consultation; and women limited by social biases to participate. 12 As of 2019, the openly accessible website for project-related documents, IEE (Initial Environmental Examination) or EIA reports by project participants has not been seen in most cases. Despite the fact that MoE has the responsibility to provide project-related information when required, the attitude of officials about providing information is quite often seen as reluctant. Some officials mentioned during interview that the MoE did not have such responsibility; some mentioned that an official letter and purpose for requiring the information should be submitted to department director in order to obtain documents and figures officially. Not to mention the time-consuming and low possibility of feed-back, it can be expected that few local people may have the willingness to try the hard process to require the documents, which they would probably find difficult to understand.
While the goal of awareness-raising is to fill the information gap between the project owners and anyone potentially affected by the project and improve transparency, the purpose of consultation is to gather the concerns and desires of stakeholders who will be affected by the project and to align expectations of all parties (Karol, 2015). With an investment amounted to $ 280 million (Hydroworld, 2011), the Kamchay Hydro-power Dam was located in the Bokor National Park of Kampot Province (Grimsditch, 2012). The project has bad reputations among local societies in Cambodia, to a large extent caused by the strikingly lack of public participation before and during the construction.
The latest available EIA report on Kamchay project is an SEIA (Strategic Environmental Impact Assessment) report approved in April 2011. 13 (Grimsditch,12 According to interviews with an MoE officials on 20 July, 2016, an EIA Reviewing Committee member on 24 July, 2016, and lecturers on EIA in the University of Phnom Penh on 21 July, 2016, and EIA consultants on 23 August and 9 September 2016. 13 The SEIA report is available and can be borrowed for research at the NGOF Cambodia, a NGO based in Phnom Penh which conducts policy analysis, monitoring and advocacy on a variety of social issues.

2012).
It should also be noted that there is an information disparity between villagers and local authorities. According to the available ESIA report, SAWAC, the consultants company in charge of the EIA writing had hold meetings and interviews in 2010 with 233 participators. 18 of them were local authorities from Kampot and 215 were "concerned people" living in the area (Gatke & Borin, 2013).
Conducting the IEIA in October 2006, the consultants company organized a public consultation in Kampot province to discuss with the public about the content of the IEIA report (Grimsditch, 2012). However, the participants were mainly government officials. One international organization was known to have been invited to the consultation, and no affected people or local organizations were invited. When a local NGO coalition later questioned about the reason why no other organizations were invited and the reason for the low representation rate of local groups, the reply they received was that no more space available in the meeting room. While the villager and civil society members could submit comments, they did get access to review the EIA document before the meeting. Comparatively, the information to community member was very limited, and they also got less opportunity to provide comments or raise concerns about the project (Grimsditch, 2012).
When it comes to public participation for female in Cambodia, they are less used to appear in public activities, still less in posing questions to authorities. While the reasons behind can be multi-facet, the impact of the male dominated tradition in family, social and political issues for sure is one of them. Secondly, the legal system fails to provide equal rights for women in society, with the land law as an outstanding example, which describes that female offspring do not have the right to inherit lands in a family. In addition, women are sometimes treated unequally compared with their male counterparts in administration and social management, which means that the rights of equal participation and compensation poorly ensured, and voice and opinions from women less taken by administrative authorities and officials. To make it worse, female has fewer opportunities in the job market and more dependency on the local environment for existence. These factors make them more vulnerable to the radical environmental and social impacts that large scale development projects might bring forth to local communities.

Imperfect Land Law and Expropriation Law Exasperate Illegal Evacuations
Local residents are often reported in recent years as the victims of the rapid de-

Land Law
The 2001 Land Law can be seen as a development from the 1992 Land Law. It was made to adapt to social changes, and for the consistency between land law and the 1989 Constitution of Cambodia (Rendall, 2003). To have a better grip of the picture, an appendix with comparison on subject headings in the 1992 and 2001 Land Laws is added.
In the colonial and pre-colonial times, land titles did not have a huge importance in Cambodia, as there was enough land for residents then. During the Khmer Rouge period from 1975 to 1979, all land ownership was dissolved and land titles destroyed (Rendall, 2003). After the year 1979, people began to slowly return to their homeland, and re-populate the cities. In 1992, Cambodia adopted its first full land law, which set out the means by which ownership could be acquired: succession, contract, or by converting "temporary possession" into full ownership (Article 59 of Land Law, 1992). In 2001, a new Land Law was adopted, and a foundation was provided for a national land register and land registration program (Lindstrom, 2013), which is a hard on-going process in "Anyone claiming legal possession must be able to prove that their possession began before the Land Law was passed, and that they meet five further conditions. All possession must be: unambiguous, non-violent, non-notorious to the public, in good faith, and possession of state public property or someone else's private land is illegal".
If a possessor meets the requirements listed above, applies for title or is in an area where the national systematic titling program is being conducted, the only ground for denying title is when there is a conflicting claim to the land.
In 2008, a study found that 21 percent of households were landless in Cambodia, and further 45 percent owned less than 1 hectare of land (Chan, 2008). In

Expropriation Law
As for land compensation, according to Cambodia's 1993 Constitution and2001 Land Law, the State is entitled to expropriate private owned property in the pub- From the detailed description in the law about the responsibility of the Expropriation Committee, we can see clearly the vital role the organ play in land management and compensation issues. However, with no guidance or official document to check the procedures and amounts for compensation, we cannot say that there is enough legal basis to justify the expropriation conducts as a result of public projects. In Cambodia, while interests of residents with no legitimate land title might fall under the threat from large scale projects, more transparency and stronger legality for procedures are needed.
As illustrated above, what may need amendments for EIA in Cambodia are two keystone statutes in resource management: the land law and expropriation law. Meanwhile, more and area-specific guidelines with unified version used by all project owners will greatly stimulate the efficiency and credibility of EIA report compiled by consultants.

Conclusion
With an increasingly extensive legal structure and high standards in EIA, Cambodia's EIA regime is now more or less in a "mid-age crisis". EIA framework can be a rein on the dashing horse of economic development (Bian, 2018). However, it is extremely difficult for Cambodia to accomplish the designed objectives of EIA as it is confronted with the difficulties in human resources, law implementation and public participation in EIA practices. Higher standards do not solve many of the difficulties it is confronted with, and the root causes for the vulnerability of the public facing big projects remain outstanding in the land sector. The sharp contrast between Cambodia's high EIA standards and its poor implementation is a typical example among developing countries, showing alarmingly that the rule of law in EIA is systematic and probably difficult to achieve fast, even when with some promising mechanisms established in paper.
The loopholes in the Land Law and Expropriation Law are hazardous for the stability of the society and the well-beings of the public in the scenario of Cambodia. The author is of the view that improvement should first come from the upstream legal framework. For this purpose, the Cambodian legislative branch might need to amend the Expropriation Law in the following years and the government should steadfastly carry out national land title registering and mapping. At the same time, evictions should be avoided whenever possible and in cases in which they are unavoidable, proper compensation and resettlement options must be offered to affected persons in order to ensure that, at a minimum, their living standards are maintained (Bugalski & Medallo, 2012). As the Government of Cambodia has ratified all the major international human rights covenants and as such is legally bound by their provisions. During the planning and implementation of any settlement ensued after project development, the government is required to respect, protect and fulfill the right of every citizen to adequate housing embedded in the International Covenant on Economic, Social and Cultural Rights. 14