Does New Regulation Points to an Effective Use of Strategic Environmental Assessment? Lessons from Democratic Republic of Congo ()
1. Introduction
Strategic Environmental Assessment (SEA) is a supporting tool that adds scientific rigour to PPP decision-making and is one of the most widely used instruments to assist in the incorporation of environmental considerations into Policy, Plan and Programme (PPP) levels [1] [2] .
Developing countries have been proving to be much slower in the adoption of this instrument [3] [4] , though it must be recognized that some progress has been made in recent years [5] [6] . During the last decade, a number of developing nations/areas have passed formal legislation related to the use of SEA, e.g. Mainland China [7] , Vietnam [8] , Chinese Taipei [9] . Besides, if SEA is not formally required, voluntary practice might take place [10] [11] .
There is currently a strong call to either reform or adopt legal arrangements for SEA in developing countries [12] [13] . However, there is no consensus on whether a formal and mandatory SEA would contribute to an effective use of this tool [14] [15] [16] . In this sense, regulations and guidelines are recognized as means to promote a consistent practice based on explicit requirements [12] [13] , which is related to the capability of institutions and society to ensure a proper use of SEA tools [17] .
Although SEA has been a recurrent research subject for well over two decades, most of the professional literature reflects the perspective of developed countries [18] . There is, however, a clear interest for empirical research in developing countries in order to support the transposition of SEA principles, concepts and approaches to the different contexts [10] . Therefore, the present paper aims to verify the contributions of new regulations to a proper use of SEA, based on the case of a recent introduction of SEA within formal requirements in the Democratic Republic of Congo. SEA practice was then characterized in terms of core principles advocated in SEA literature, considering two distinct periods: pre-legislative reform and after the establishment of a formal SEA system introduced by the legislation.
The questions underlying this study included: 1) how close to international best practice principles was SEA practice in the DRC before its transposition into national legislation? 2) to what extent the introduced legal framework denotes proximity to SEA’s best practice principles? and 3) what could be the expected impacts on SEA practice in the country from the implementation of the new SEA system?
The case study provides an opportunity to test the adequacy of new SEA legislation to its specific context of operation and, also, whether the new regulation reflects somehow the cumulated experience of previous practice, in order to foster SEA effectiveness.
The paper is organized in six sections. After this introduction, the conceptual background is provided. In Section 3, the methodology is described, followed by the discussion of the results (Section 4). In the subsequent sections, lessons from the case study are drawn (Section 5) and main conclusions are summarized (Section 6).
2. Background
The adoption of legal requirements for Environmental Assessment (EA) in both developed and developing countries has been described and assessed [18] , in some cases based not only on the review of EA practice before and after the adoption of legislative requirements (see, e.g., [19] [20] [21] [22] but also on the necessity of adopting regulations [15] [16] [23] .
Developing countries have adopted SEA to a great extent stimulated by Multilateral Development Agencies [8] which have adopted SEA as part of their safeguard policies [4] [24] .
As formal SEA systems were originally established in developed countries [25] , their introduction in developing countries requires caution [26] . Moreover, high level commitment and capacity-building for conducting SEA are crucial prior to its introduction in a given country, or it may be pointless to adopt mandatory requirements [17] [27] .
In this context, one of the main questions raised in the literature is related to the lack of legal requirements for a systematic use of SEA in developing countries [5] [6] [28] and, mainly, the extent to which a formal SEA system can help fostering an effective use of SEA.
It is argued that formal requirements to SEA can be particularly relevant to secure enough room to the influence of SEA within plan-making [10] [29] , especially in a context of restricted collaborative planning and under the influence of vested interests [30] .
On one hand, an adequate consideration of specific environmental and institutional factors are needed to ease the implementation of the desired modifications within the system [31] [32] . In another hand, it is highlighted the need to gradually internalize SEA based on cumulated practical experience instead of beginning with the implementation of mandatory requirements in the first instance [27] .
3. Methods
Based on exploratory and inductive approaches, the research has used both a single-case study and a qualitative content analysis. The case study was conducted based on guidance provided by [33] , consisting of a critical case in which a change in the legal status of SEA has occurred, thus providing the opportunity to study the results (similar to other studies, e.g. [34] ).
Data gathering was accomplished through qualitative content analysis following [35] , which means a systematic and objective analysis of documents was applied to collect data and make valid inferences from specified characteristics within the text [35] [36] .
3.1. Object of Study: SEA Practice in the Democratic Republic of Congo (DRC)
SEA practice in the Democratic Republic of Congo (DRC) was taken as an exploratory single-case study. The DRC is located in Central sub-Saharan Africa with a population of more than 81 million and an area of 2,345,409 km2 [37] and is one of the few African countries with a formal SEA system being implemented (the legislation was approved in 2014). According to the Ministry of Environment (personal communication, January 15, 2016) DRC’s experience with SEA practice consisted of 12 SEAs prepared since 2007.
Through an extensive search in Multilateral Development Agencies (MDA) databases and contact with the IA’s professional community in the DRC, 10 SEAs were identified (Table 1). It is relevant to say that nine of these SEAs were required by MDAs, thus reinforcing the relevance of multilateral agencies to SEA dissemination and practice, as previously reported by [4] [38] [39] .
Documentation (SEA reports, Summary report or the Term of Reference/ToR) was found to eight SEAs of different types/purposes, which were analyzed in this paper. It is important to highlight that the DRC lacks of an Environmental Agency and there is few national consultants, thus exacerbating the difficulty of accessing EA documents.
![]()
Table 1. SEAs from DRC, identified by the authors until 2016.
*Reduced Emissions from Deforestation and Forest Degradation.
1Summary reports have been used as source of information in quality review studies. According to [46] , a summary report has to adequately represent the main report emphasizing its major findings and, therefore, it is expected to meet the criteria applied in quality reviews.
Although some of these criteria were inspired in the EU SEA Directive (42/ EC/2001) requirements, they reflect common good SEA practice [43] [44] . Furthermore, they have been already applied in non-EU contexts to review the quality of SEA reports (e.g., [45] ).
Reports were reviewed using the grade system proposed by [2] , within which the scores vary from A (task well performed with no important omissions) to G (task not attempted at all) (Box 2). Criteria and sections were graded individually by at least 2 different reviewers and divergent grades were defined by consensus. Section grades are based on the overall picture emerging from individual grades, same approach used to attribute the grade to the overall report.
· SEA ToR quality review
Not all SEA reports needed to cover the purposes of the study were available (Table 1). In this case it was decided to analyze the ToRs emitted by MDAs, assuming that as they are SEA guiding documents they must provide a substantive overview of the assessment to be conducted [48] .
1Summary reports have been used as source of information in quality review studies. According to [46] , a summary report has to adequately represent the main report emphasizing its major findings and, therefore, it is expected to meet the criteria applied in quality reviews.
A tool was specifically designed to review the quality of 3 ToRs (Box 3), based on existent guidelines to ToR development [49] [50] [51] and quality evaluation checklists applied to ToRs [48] . Due to certain features of ToRs, it was needed to redefine the descriptions of sections and criteria in order to allow for a review of the DRC ToRs guided by best practice principles. Although the review of ToRs may be seen as problematic because it is unusual in scientific literature, their evaluation enabled a more comprehensive analysis of SEA practice in the DRC.
ToRs were reviewed on the basis of the expected content of SEA (Box 4), following a simplified qualitative scoring system adapted from [52] [53] [54] . Sections and the overall ToR were evaluated individually according to whether the whole picture emerging from individual grades was fully, partly or not met at all.
Box 1. SEA report review criteria.
Source: based on [2] [20] [41] [42] [43] .
Box 2. Report scoring system.
Source: [2] , based on [47] .
Box 3. ToR review criteria.
Sources: [48] [49] [50] [51] [54] .
Box 4. ToR scoring system.
Sources: See text.
3.3. The SEA System Introduced in RDC by the New Legislation
The context of SEA in the RDC is currently set out by two regulations promulgated in 2011 and 2014, respectively, namely the Environment Protection Act No. 11/009 (EPA) and the Environmental Minister Decree No. 14/019. Based on these documents, the framework of the DCR SEA system was described focusing on the characteristics of the assessment process and the involved stakeholders.
In order to get a better picture of the SEA process as a whole based on an international perspective, this framework was then assessed against international principles of SEA effectiveness (Box 5), which has been widely used to examine the effectiveness of SEA in different contexts [55] [56] [57] [58] . Once again following [53] a 3-level assessment grades was applied (Box 6).
4. Results and Discussion
4.1. SEA Practice before Its Transposition into National Legislation: SEA Report and ToR Quality Review
Table 2 shows the results of the quality review of SEA reports. Only two out of five SEA reports reviewed in this paper were deemed a satisfactory quality. The main weaknesses of SEA in DRC practice are related to the determination of impact significance (criteria 17, 20 and 21), consultation process (criterion 27) and recommendations on the preferred alternatives and monitoring (criteria 35 and 36). By contrast, reports showed good quality when documenting baseline, strategic actions and SEA processes integration (criteria 1 and 9), and the SEA report layout (criteria 37, 38, 39 and 40).
Regarding ToRs quality review, the results are presented in Table 3. None of the three ToRs was deemed a fully satisfactory quality, indicating that the whole picture emerging from individual grades was not fully met. Very few of the ToRs adequately refer to the identification of standard limits (criteria 16), approaches to mitigate and monitor the negative impacts of the proposed strategic action (criteria 18) and consideration of alternatives (criterion 19). However, most of ToRs have an explicit consideration of the SEAs titles (criteria 2 and 3), description of main stakeholders involved in the strategic action (criterion 10), relevant and applicable legislations (criterion 11), scope of the SEA (criteria 14 and 15), outputs to be delivered by the SEA team (criterion 20), and responsibilities as well as skills and experience of the SEA team (criterion 23).
Box 5. International principles of SEA effectiveness.
Source: Intermational Association for Impact Assessment.
Box 6. Regulation ratings key.
Common weaknesses were observed in SEA reports and ToRs, thus reinforcing the relevance of the scoping stage. Omissions and deficiencies include the lack of information regarding how reasonable alternatives were identified (Cases B and C) and how the preferred alternative was defined (Case D). These findings are similar to what was previously reported to other contexts, such as the transport sector in New Zealand (non mandatory context) [59] and spatial plan core strategy SEAs in England (mandatory context) [20] .
![]()
![]()
![]()
Table 2. Reports quality review scores.
![]()
![]()
![]()
Table 3. ToRs quality review scores.
Adequate development of alternatives constitutes a major concern in both developed and developing countries [11] [20] [60] . Since it is acknowledged that the identification and development of alternatives is a recognized challenge to SEA effectiveness [61] , it would be desirable to ensure best practicable environmental options are chosen.
The lack of information on approaches to monitoring impacts was also found to be a significant shortcoming of DRC’s SEA. None of SEA reports and ToRs have explicitly considered monitoring arrangements. Only one case (case C) referred to the use of existing monitoring arrangements as a proxy, suggesting the institutions responsible for this task. This aspect has showed to be relevant to improve SEA’s effectiveness in DRC, given the role monitoring can play in strengthening the quality of the whole SEA process [62] .
Added to this, the weak performance of ToR in guiding the scope and content of the assessment may be hindering SEA effectiveness.
4.2. SEA Transposition into National Legislation: Characteristics and Performance
· Characterizations of DRC SEA legislation
After many years in draft form, a framework for environment assessment was promulgated: the Environmental Protection Act (EPA), No. 11/009 of the 9th of July, 2011. It contains several new requirements, notably the obligation to undertake an environmental and social impact study; environmental audits; environmental evaluation of PPPs; the creation of new institutional structures; and an Environmental Fund for research, conservation, clean-up operations, rehabilitation and pollution prevention (Article 25).
The EPA establishes environmental assessments to be undertaken during planning process conducted by the state, provinces and other decentralized territorial entities (Article 6). It requests the consideration of the imperatives of environmental protection and the wellbeing of local population during the preparation of land use management and zoning plans, including urban plans.
In Article 2, it defines environmental assessment of PPP as a tool, which aims to systematically assess environmental issues at strategic level. According to the law (article 19), all public strategic actions, which may have a significant environmental impact, are subject to prior environmental evaluation. The term “Strategic Environmental Assessment” is not adopted in the EPA, but was first presented in the Environmental Minister Decree (EMD) No. 14/019 of the 2nd of August, 2014, which named the environmental assessment of PPPs as “Strategic Environmental Assessment” and established the operational rules to this instrument (Article 1). A set of activities and sectors subject to SEA is listed: infrastructure, hydrocarbons, mining, energy, telecommunication, industry, land use, forestry, agriculture, fishery, urbanism and habitat, transport, rural development, tourism and hospitality, education, health and any other commercial activities that may have an impact on the environment (Article 4).
According to the Decree, the DRC Environmental Agency should grant a compulsory Environmental Notice for the implementation of PPPs, so the beneficiary must comply with the principles of environmental and social safeguards stated in Article 15. Figure 1 summarizes the procedure for obtaining the environmental notice.
Figure 2 presents the content of SEA report as stablished by the Decree, which has three main parts including screening, scoping and the proper SEA. Figure 2 also presents the steps of each part. It is to be noted that the Decree points these steps without providing their meanings and/or the information to be provided in each of them.
![]()
Figure 1. Procedure for obtaining environmental notice according to the EMD No. 14/019 of the 2nd of August, 2014. Source: based on Environmental Minister Decree No. 14/019 of the 2nd of August, 2014.
![]()
Figure 2. Content of SEA based on Environmental Minister Decree No. 14/019 of the 2nd of August, 2014. Source: based on Environmental Minister Decree No. 14/019 of the 2nd of August, 2014.
The Decree also states that the assessment has to be conducted by a national or international consultant accredited by the Ministry of Environment (Article 10), and makes provision for regulations to be made regarding institutions involved, content of the SEA report, guidelines for various stages of the SEA process, sectors concerned and the review process.
· Regulation evaluation against international SEA performance criteria
Results of SEA system evaluation against international SEA performance criteria are summarized in Table 4. Ratings were based on qualitative evaluation; the table’s footnotes present justifications for the ratings. According to the findings, the new DRC SEA system is far from fulfilling its potential to enable more effective environmental assessment at PPP level.
Broadly speaking, SEA can be considered time-consuming in the DRC. According to [43] (p. 208) “a typical, reasonably brief and efficient SEA might take 50 - 100 person-days”. However, the whole process is accepted to run in 18 months. The EMD requires a SEA scoping report to be provided by the consultant. The environmental agency has up to three months to check the conformity of this document. If needed, the consultant will be notified to rectify the scoping report within three months. Once again, the environmental agency has up to three months to decide on the conformity of the corrected scope report and grant the environmental notice. Only then the SEA process is allowed to proceed, following a similar timeframe to the final SEA report. There is obviously a need to overcome time constraints, once time is a major concern of all SEA systems in terms of cost [63] and, presumably more relevant, in terms of the restrictions posed to future developments [64] .
Public consultation is another main concern of the DRC SEA system. The role of public consultation in promoting accountability and transparency of the decision-making process is largely recognized in the literature [65] [66] [67] . However, whilst the EPA (Art 9) requires public involvement in any decision-making process, the Decree does not make provisions for any type of formal consultation at higher decision-making levels.
Also, similar to what was reported by [43] regarding the European Union’s SEA Directive (2001/42/EC), many aspects of the DRC regulations remain to be interpreted and consolidated, and perhaps this will have to wait until specific cases emerge requiring court decisions or through the cumulated experience and learning from SEA practice.
A clear strength of the SEA system is the provision to integrate SEA and PPPs development in order to provide information early enough, preferably in a moment in which the recommendations could still be considered relevant to modify the strategic actions. This is relevant, according [65] , once planning and SEA processes should run in a way that allows interaction between stakeholders, an adequate SEA timing and diffusion of results linked to the needs of decision-makers.
4.3. DRC SEA Procedures against SEA Early Practice
Table 5 summarizes the comparison of SEA practice before its transposition into national legislation and the new SEA system.
Findings from the quality review indicate that screening, scoping, mitigation and report were explicitly addressed before SEA transposition into the DRC
![]()
Table 4. DRC SEA legislation evaluated against IAIA’s performance criteria.
(a)The EPA (art 2, 19 and 20) requires the application of SEA to PPPs. The EMD (Art 3 and 4) indicates sectors subject to SEA. However, none of them refers to the achievement of sustainable development. (b)No mention of any kind of interrelationships of biophysical, social and economic aspects. (c)Tiered to decision-making and policies in relevant sectors (EMD Art 3 and 4). No reference of tiering with EIA. (d)The EMD (Art 5c) only refers to alternatives as one of DRC SEA steps. However, there is no reference to sustainability. (e)The EMD (Art 5b and c) refers to the report content, which includes, amongst other, baseline description; strategic action challenges, mitigation measures and, environmental opportunities and constraints. (f)No mention of focus on key issues of sustainable development. (g)The EMD (chapter 4) describes the step by step of the decision-making process. The Environmental agency has to guide consultants to ensure the conformity of the SEA scope and final report (EMD Art 11). (h)The cost of the SEA could not be evaluated in this study. Regarding the time effectiveness, the whole SEA process lasts 9 to more than 18 months (EMD Art 11, 12, 13 and 14). (i)The State, province, territorial entity or public institution is responsible for its strategic decision to be taken. (j)The environmental agency is responsible for checking the final report (EMD chapter 4). (k)No requirement to justify how sustainability issues were taken into account in decision-making. (l)The EPA (Art 9) requires the public involvement in the SEA process. However, the EMD does not request formal consultation for SEA. (m)No requirement to address stakeholders inputs and concerns. (n)No requirement about quality and access to information. (o)SEA has to be conducted during planning process (EMD Art 6). (p)Consultants has to identify, assess and document strategic action impacts (EMD Art 5). Based on the SEA outcomes, the Environmental Agency judges whether the decision should be amended. However, there is no provisions for future decisions.
legislation. On the other hand, consideration of alternatives, assessment of environmental effects and incorporation of SEA results in decision-making are questions that obtained unsatisfactory average grades in SEA reports and/or ToRs. However, the new SEA legislation considered these issues. Of particular interest, to this matter, is the consideration of scenarios and incorporation of SEA results in decision-making. Although the Decree requires their consideration, it does not provide specific information on development, selection and types of options to be considered nor how SEA results has to be consider by the decision-maker.
As shown in Table 5, there is no established procedures for consultations and public participation as well as monitoring in the DRC regulations. This may be attributed to the lack of perception amongst developers of the real benefits that may accrue from adopting a participative and continuing approach to SEA despite the additional costs it may entail. There is a need to overcome these omissions to ensure an effective use of this tool.
Legal arrangements in African countries such as Botswana, Cameroon, Guinea Bissau, Kenya, Swaziland, Tanzania and Zambia explicitly address screening, scoping, assessment of environmental effects and documentation principles. Different from other African countries, the Congolese Decree does not provide specific requirements to the consideration of alternatives. Likewise, Cameroon regulation make no mention of this principle [68] . The literature on SEA advocates the need to consider alternatives. However, this principle is poorly respected in several countries, such as Canada [56] , China [69] and Namibia [70] . There is a need to address the lack of attention paid to alternatives, both in SEA reports and in regulations. [70] argues that more detailed regulation could allow alternatives to be properly identified and evaluated.
According to [68] SEA legislation in Kenya, Swaziland, Tanzania and Zambia does not take into account the principle of monitoring. In Sweden, [71] report the lack of environmental monitoring in the planning of regional transport infrastructure. The EU Directive 2001/42/EC requires the monitoring of significant environmental effects in order to identify any unanticipated adverse effects and to allow for adequate remedial action. However, the Directive and the resulting guidelines for its implementation provide little information on how monitoring should be carried out [72] . Monitoring is intended to address any negative impacts of the strategic action [43] . It is important to strengthen the monitoring of SEA, as this principle strengthens the SEA process and serves as a link between higher and lower decision-making levels [71] .
The incorporation of SEA results in PPP decision-making as well as the consultation and public participation were identified as weaknesses in several African countries [68] . However, it is recognized that these requirements are very difficult to implement, especially in low- and middle-income countries [73] . In practice, public awareness of SEA is low [74] and SEA is based on a complex and challenging process [75] . Getting people to understand this process is key to ensuring effective participation by those at the bottom of the ladder [73] , and establishing clear requirements contributes to a better integration of SEA results into the decision-making process.
5. Lessons from DRC
The findings reported in this paper indicate positive aspects and shortcomings related to the implementation of SEA in the RDC that might be of interest for other countries in which SEA is still to be regulated. The main aspects can be summarised as follows:
1) There is a weak explicit link between the previous practice of SEA and the system being implemented under the new regulation, which must be reinforced in order to learn from the past experience. Despite the benefits in the new legislation, relevant aspects of SEA such as the consideration of alternatives, public consultation and monitoring are still not adequately addressed. [40] have shown some concern regarding the need to assess SEA effectiveness and propose specific changes to the existing procedures. Although there are strong calls to reform or adopt legal arrangements for SEA in developing countries [12] [13] [76] , our findings indicate that the adoption of a new legislation wasn’t enough to improve SEA practice in the DRC.
2) The initial experience of the RDC seemed to be similar to other countries in which the use of SEA is not systematically promoted by the legislation, with a considerable variability in the quality of SEA reports and in SEA effectiveness as well [11] [77] . In the case of the RDC it is suggested that its previous experience with the use of SEA has contributed to stimulate the adoption of mandatory regulations, which is recognized as a positive aspect [17] [27] [76] . Nevertheless, whether a legally-bonded SEA system will contribute to improve the practice is debatable. Legislation can be perceived as being valuable in ensuring the application of the instrument and standardizing the practice [12] [13] , but on another hand the lack of a basic set of rules means that each application of SEA might be responsive to its specific context (as demonstrated by [78] ).
6. Conclusions
The outcomes demonstrated that the overall quality of SEA reports produced in the RDC before the adoption of legal requirements was not satisfactory: only two of the five SEAs reviewed were graded satisfactorily. Regarding ToRs, all of them partially meet requirements. Most of the gaps reported in this paper are related to the development of alternatives and monitoring. In this sense, although the DRC SEA regulations have included the consideration of scenarios, it still lacks from specific requirements about the development of alternatives. Moreover, there is no established procedure for monitoring and public participation. Findings from DRC regulation evaluation against IAIA’s performance criteria indicate that the DRC SEA process is considered time-consuming as according to the new regulations the whole DRC SEA process may take 18 months.
Overall, the DRC SEA system is far from fulfilling its potential to enable more effective environmental assessment at PPP levels. Based on our findings, to contribute to an effective use of SEA, the following topics must be considered: 1) the adoption of legal arrangements for SEA does not guarantee improvements in SEA practice; 2) it is necessary to avoid conflicts and include key steps in SEA regulations to ensure an effective use of this instrument.
There is a need to ensure that new regulations demonstrate more precisely how to deliver effective environmental outcomes for PPPs development. Advancing SEA requires focusing not only on the adoption of a SEA processual framework, but also on ensuring a proper use of this tool according to its core principles.
Acknowledgements
The authors recognize the support of the Brazilian National Council for Scientific and Technological Development—CNPq [research grants #140402/2015-2 and #301861/2018-8] and of the São Paulo Research Foundation—FAPESP [research grant #2017/00095-2].