ABSTRACT

This study explores and seeks to explain the EIA procedures practice gap in Lao PDR. It reviews the literature and studies EIA legislation, administrative procedures, guidelines, and relevant documents by using a model proposed by Leu et al. (1996) and applying criteria proposed by Wood (1995) to evaluate the performance of EIA systems. Key EIA legislation in Lao PDR has many strengths, but also major weaknesses: Inadequate planning procedures, no secondary regulations, few trained and skilled personnel, inadequate public consultation, lack of environmental data, weak follow-up and monitoring, and no enforcement machinery. Additionally, the EIA approval procedure is very bureaucratic and easily derailed by political and economic pressures. In addition, coordination among EIA proponents, consultants, concerned ministries, local authorities, planners, and decision-makers is generally weak. This delays decision-making and hinders implementation of environmental regulations. Thus, procedures and evaluation are not always performed well. EIAs are more a project justification tool than a project planning tool for sustainable development. We conclude with recommendations to strengthen the system, such as improving capacity building, implementing an EIA consultants’ accreditation system, ensuring effective public participation and access to EIA reports, applying systematic EIAs, reviewing criteria, and promoting environmental awareness.

1. Introduction

The environmental impact assessment (EIA), which is one of the environmental management tools established in many countries to ensure environmental protection [1], is a process whereby the potential environmental impacts of a proposed development are assessed at an early stage. Hence, significant impacts and measures to mitigate them can be identified, irreversible damage to the environment avoided, and sustainable use of natural resources ensured [2,3]. The EIA is also one of the major tools, which governments and societies worldwide rely upon for environmental management. They primarily use it to help them identify, predict, and mitigate the environmental impacts of their activities [4-6]. The EIA’s main purpose is to provide information to decision makers and the public about the environmental implications of the proposed project before decisions are made. Besides providing information, it also suggests measures to prevent or reduce those impacts and mitigation plans. Overall, the EIA offers a systematic process of examination, analysis, and assessment of planned activities with a view to ensuring environmentally sound and sustainable development [7].

International experiences indicate that political factors have been the driving forces behind the introduction and practice of EIAs [3]. The challenges for EIAs are political rather than technical. In order to make EIAs more than a ritual, changes in the attitudes and behavior of political leaders and public officials will be necessary [8]. These changes can come from a strong base in environmental policy, law, and rights. The EIA is universal, but situations do change from culture to culture. In the case of industrially advanced and particularly developing countries, even if technical and financial issues are dealt with in an appropriate manner to produce the desired results, the EIA quality will be poor without a favorable sociopolitical context for the EIA system to operate. Economic conditions and cultural influences have significant bearing on the form of an EIA system. EIAs appear to be most effective where environmental values are inte­grated into a nation’s culture and its public law and policy [3]. Major contributing factors include time and money, literacy, the official language and public presentation, education, cultural differences, gender, geographical remoteness, and the political and institutional culture of decision-making.

The recognition of problems in EIA practice has led to numerous studies providing suggestions for improvement, including an international study on the effectiveness of environmental assessments [9]. That study identified the strengthening of follow-up environmental management activities as one of the major priorities for improving EIA effectiveness. Ultimately, improving environmental management with EIAs will help ensure more environmentally acceptable development outcomes [9,10]. In addition, there are many debates in the literature about the effectiveness of EIAs. These debates focus on the factors [9] that can be advanced to explain why EIA systems are effective, on which evaluation criteria are appropriate in judging the effectiveness of an EIA system [7], and on how EIAs can be improved [11]. In 1995, Christopher Wood introduced an EIA evaluation model comprising 14 core criteria. This model has been applied in a number of developing countries including China [12], Sri Lanka [13], Pakistan [14], Malaysia, Indonesia, Thailand [15], Egypt, Turkey, Tunisia [2], Bangladesh [16], and other Mideast countries [17].

Like many other developing and developed countries of the world, in Lao PDR not all projects need to undergo EIAs, just those likely to have adverse environmental and social impacts. But the EIA does not appear to be an effective tool to safeguard the environment and socioeconomic structure of the nation’s communities [18]. However, there is not much research on the functioning of the EIA system in Lao PDR. It is hard to find reference research papers on the system, except for some reports produced by international organizations [19-22]. This paper aims to fill this gap by exploring and seeking to explain the nature of the EIA procedures-practice gap in Lao PDR, and highlight the strengths and weaknesses of the Lao EIA system. The study relies on a review of the literature and on an investigation of EIA legislation, administrative procedures, guidelines, and relevant documents in Lao PDR using the development of a model proposed by Leu et al. 1996 [23]. It includes seven key criteria, with a range of supporting subcriteria ranging from full, partial, nonexistent, or not applicable. Another criterion proposed by Wood 1995 [24] has been applied to evaluate the overall performance of seven EIA systems. Finally, conclusions and recommendations are offered to further improve the EIA system and its performance.

2. Lao PDR: Context, Institutional and Legal Basis for EIA

2.1. Lao PDR Background

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 2820 meters in Xieng Khouang Province. Population is about 6.38 million and land area is 236,800 km². Lao PDR is covered with a web of rivers and streams. The largest is the Mekong River, flowing 1898 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 the lowlands. 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 have also led to declining agricultural productivity (Table 1).

2.2. Institutional Framework for EIA in Lao PDR

The Ministry of Science and Technology was created in 1984 and became the Science, Technology and Environment Organization (STENO) in 1993, changing in 1999 to the Science, Technology and Environment Agency (STEA) under the Prime Minister's Office. STEA became the Water Resources and Environmental Administration (WREA) in 2008, and was then upgraded into the new Ministry of Natural Resources and Environment (MONRE) in 2011 by merging WREA with parts of the National Land Management Authority (NLMA) and the Geology Department, as well as the Protection and Conservation Divisions of the Department of Forestry. The different departments and their functions and roles are still being clarified.

The institutional structure for environmental management in Lao PDR is characterized by: 1) national committees that guide inter-sectoral coordination among agencies; 2) national level ministries and agencies which have a core role in environmental protection and conservation; 3) devolution of responsibility for environmental protection from the national government to provincial and district entities; and 4) 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.

In addition to regulators, other parties involved in EIAs include developers, other affected parties, and facilitators. Developers, both foreign and local companies, may be with the public sector/state enterprise (e.g., Electricity du Lao PDR (EDL), national and state road authorities) or the private sector (e.g., national and multinational state enterprise companies). In either case, their projects may be subject to EIAs. Many developers have little environmental awareness and few technical or financial resources to perform EIAs. Some projects start implementation before approval, and some ignore EIAs. Public developers sometimes provide a poor example for EIA practice.

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.

Although a certification system does not exist to manage the qualifications of EIA consultants and practitioners, all consultants, international and local, wanting to qualify for carrying out EIA studies need to register with MONRE.

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 basic precept of the EPL is that all persons or organizations residing in Lao PDR have an obligation to protect the environment. People or parties who damage the environment are responsible for impacts under the EPL, which stipulates that natural resources, raw materials, and energy shall be used in an economical manner to minimize pollution and waste and to allow for sustainable development (Article 5), and that all development projects and activities which potentially affect the environment shall require EIAs (Article 8). It is the obligation of all organizations to control pollution in accordance with the Environmental Quality Standards set forth in regulations by the various agencies involved (Article 22).

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:

-      Category 1: Investment projects, which are small or create fewer impacts on the environment and society, and require initial environmental examinations (IEEs);

-      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 [25].

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.

Individuals, legal entities, or organizations desiring to render EIA services in Lao PDR must be licensed and registered with MONRE, whether they are domestic consultant firms or consultants, or foreign consultant firms or consultants already licensed to render environmental services in other countries.

Project developers are liable for accuracy of the data and information contained in their IEE or EIA reports, and they must cover every expense incurred in the process of preparing and examining of IEE reports, including measures to prevent and minimize impacts on the environment and society, EIA reports, environmental management and monitoring plans, and social management and monitoring plans, in implementing and overseeing measures to prevent and minimize environmental and social impacts, and in carrying out environmental management and monitoring plans and social management and monitoring plans.

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 [26].

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

Usual EIA Process

The history of EIA implementation by the national government of Lao PDR started in 1993 with the first National Environmental Action Plan, which provided a framework for the EIA process in the country. The rather long time needed to pass and implement the legislation reflected a continuing emphasis on economic development over environmental protection. In addition to the EIA decree, government ministries are required to develop their own set of EIA procedures, standards, and guidelines.

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 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.

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.

EIA report preparation necessitates consultations with local authorities and affected people. The Public Involvement Guidelines prescribe this consultation process. Figure 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.

The EIA process in Lao PDR involves a comprehensive and lengthy procedure for EIA review and appraisal, and the procedure for initiating and carrying out EIAs involves many steps. IEE reports, scoping/TORs for EIAs, and final EIA/environmental monitoring plan (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, or even more. As a consequence, in some cases the developers begin project implementation while the EIA procedure is still in progress.

4. Results and Discussion: A Checklist Approach

Table 2 provides an overview, with the various assessments summarized on a five-point scale from good to very deficient. Lao PDR is seen to have a reasonably good framework of environmental policy, regulations, and guidelines, but the Lao system is still lacking in good-practice guidance and has weaknesses in its EIA procedures. The quality of EIA reports is poor in terms of considering alternatives, cumulative studies, and ineffective formal channels for public participation. Further, the self-monitoring and reporting system prescribed in EMPs is rarely practiced by project proponents. In Lao PDR,