National Environmental Act (NEA) Amendments (LK0007)

The Initial Environmental Examination (IEE) and Environmental Impact Assessment (EIA) processes were introduced to the National Environmental Act (NEA) by an amendment in 1988 and was implemented since 1993 after the gazetting of the relevant regulations. Both these processes had public participation provisions until an amendment to the NEA in 2000 took away the public’s right to comment on IEEs. Until this amendment public comments were called through a notice published in the government gazette and a newspaper in all three languages. As it stands today the public have the right to comment only on EIA reports which is notified through the newspaper only, while IEEs are merely public documents for the purposes of the Evidence Ordinance and are only open for inspection by the public. The decision to approve through both IEEs and EIAs is notified through the newspaper. Without notice to public on the availability of IEEs (as in EIAs), it is most unlikely that the public will get to know of projects that are approved through IEEs. This is unsatisfactory and discriminatory, especially in respect of projects where the affected public may be residing far away from the Central Environmental Authority (CEA) Registry where such reports are likely to be kept. In addition, since there are no guidelines in the NEA for determining whether a project needs an IEE or an EIA the removal of the public notice and participation provisions in respect of IEE Reports may encourage Project Approving Agencies and developers to opt for the latter in preference to an EIA irrespective of the actual environmental impacts. A civil society provided example is the approval of a mini hydropower project in the Koskulana River bordering the Sinharaja World Heritage Site through an IEE. Public became aware of the project through the media only after the same was approved and damaged caused to the Sinharaja World Heritage Site. In addition to the aforesaid laws the Fauna and Flora Protection Ordinance No.2 of 1937 as amended (FFPO) and the North Western Province Environmental Statute No.12 of 1990 as amended (NWPES) also provide for the IEE/EIA process. However, unlike the NEA and CCCRMA, the FFPO and the NWPES require that IEEs are open for public comments. It needs to be stressed that where public law allows comments on IEEs/EIAs, the decision making agencies need to be accountable for the public comments received. In order to ensure the same, the decision-making agency must list the comments received on IEEs and EIAs and indicate whether the comments were addressed or not when arriving at the project approval decision. Therefore, it is proposed that: (a) Relevant amendments are made to (i) the NEA and its regulations; and (ii) the CCCRMA, the CCCRMP and regulations to restore/include the public’s right to study and comment on IEE Reports before projects are approved; and (b) Relevant amendments are made to (i) the NEA and its regulations; (ii) the CCCRMA, the CCCRMP and regulations (iii) the FFPO and its regulations and (iv) the NWPES and its regulations to include provisions ensuring government accountability on public comments on IEEs and EIAs. Issues to be Addressed: Lack of provisions in the NEA and CCCRMA to include public participation in the IEE process. Lack of government accountability on public comments received on IEEs and EIAs Main Objective: Ensuring public participation/transparency in environmental decision making and government accountability on public comments on IEEs and EIAs National Environmental Act (NEA) Amendments

1. One or two meetings/discussions with the MMDE and CEA to advocate the need for the relevant amendments to the NEA and its regulations. New July 2016 Sep 2016
2. Drafting amendments to the NEA and its regulations to restore provisions on public participation in the IEE process and to ensure government accountability on public comments received on IEEs and EIAs.
PILF can assist the MMDE and CEA in this endeavour. New Sep 2016 Nov 2016
3. Amendments to NEA and regulations with aforesaid provisions passed by Parliament New Nov 2016 Oct 2017
4. Enforcement of the amendments to NEA and regulations by the CEA New Nov 2017
5. CEA to facilitate the enforcement of the aforesaid amendments to NEA and regulations by strengthening its EIA unit and provincial branches with adequate staff, necessary budgetary allocations and other required facilities New July 2017 July 2018
6. Approx. 03 workshops to creating awareness amongst respective government agencies and public officers on:-
a) the requirement of opening up IEEs for public comments as per the amendment to the NEA and regulations; and
b) the government accountability provisions.
New Jan 2018 July 2018
7. (A) Approx. 04 programmes each on State owned television and radio to create awareness amongst the civil society on:
i) the reintroduction of public participation provisions on IEEs as per amendments to the NEA and regulations and how to make effective and responsible comments on the same; and
ii) government accountability provisions.
(B) Dissemination of aforesaid information through the websites of the MMDE and CEA New Jan 2018 July 2018

7. National Environmental Act Amendments

Commitment Text:

Transparent Environmental Decisions: Restoring the Public’s Right to Comment on Initial Environmental Examination and Government Accountability on Public Comments

(A) – National Environmental Act (NEA) Amendments

[…]

Main Objective:

Ensure public participation and transparency in environmental decision making and government accountability on public comments on Initial Environmental Examinations (IEEs).

Milestones:

• 1 One or two meetings/discussions with the MMDE and CEA to advocate the need for the relevant amendments to the NEA and its regulations.
• 2 Drafting amendments to the NEA and its regulations to restore provisions on public participation in the IEE process and to ensure government accountability on public comments received on IEEs and EIAs. PILF can assist the MMDE and CEA in this endeavor.
• 3 Amendments to NEA and regulations with aforesaid provisions passed by Parliament.
• 4 Enforcement of the amendments to NEA and regulations by the CEA.
• 5 CEA to facilitate the enforcement of the aforesaid amendments to NEA and regulations by strengthening its EIA unit and provincial branches with adequate staff, necessary budgetary allocations and other required facilities.
• 6 Approx. 03 workshops to creating awareness amongst respective government agencies and public officers on:
• the requirement of opening up IEEs for public comments as per the amendment to the NEA and regulations; and;
• the government accountability provisions.
• 7 Civil Society Awareness Programs and Information Dissemination:
• 04 programs each on State owned television and radio to create awareness amongst the civil society on: (i) the reintroduction of public participation provisions on IEEs as per amendments to the NEA and regulations and how to make effective and responsible comments on the same; and (ii) government accountability provisions.
• Dissemination of aforesaid information through the websites of the MMDE and CEA.

Responsible institution: Ministry of Mahaweli Development and Environment (MMDE)

Supporting institutions: Central Environmental Authority (CEA), Public Interest Law Foundation (PILF)

Start date: July 2016............  End date: July 2018

Editorial Note: The text of the commitment was abridged for formatting reasons. For full text of the commitment, see the Sri Lanka National Action Plan 2016–2018 at http://bit.ly/2wv3jXR. In the action plan, this commitment contains three distinct sets of milestones around different environmental amendments. To improve readability, the IRM researcher will evaluate the other milestones as part of Commitments 8 and 9.

Commitment Aim:

This commitment aimed to ensure public participation, transparency, and government accountability in environmental decision making. It sought to do this by restoring the public right to comment on Initial Environmental Examinations (IEEs), and ensuring government accountability in responding to public comments on both IEEs and Environmental Impact Assessments (EIAs). This would entail amending the relevant provisions of the National Environmental Act (NEA). ^[105]

Status

Midterm: Limited

This commitment achieved limited completion by the midterm. The Ministry of Environment conducted several meetings and discussions with the CEA on amending the NEA (Milestone 7.1). These meetings resulted in the development of a detailed concept note comprising a list of potential amendments to the NEA. The reintroduction of public commenting in the IEE process and provisions for government accountability in the IEE and EIA processes were among these amendments.

However, the draft amendments were not finalised, or publicly available, by the time of the midterm assessment (Milestones 7.2–7.7). [106] The ministry and the CEA engaged in continuous deliberation, simultaneously considering several different amendments to the NEA. As the ministry and CEA had not finalised the amendments, none of the other contingent activities in the commitment had commenced by the midterm.

For more information, see the 2016–2017 IRM midterm progress report.

End of term: Limited

According to a civil society representative from the Public Interest Law Foundation, there has been no progress on this commitment since the midterm. [107]

Milestones 7.1–7.7: The Ministry of Environment initially agreed to include provisions for public commenting and government accountability in draft amendments to the NEA as prescribed in the action plan. However, during the second year of implementation, the ministry decided to remove these provisions from the draft set of amendments. The ministry did not consult, or inform, civil society prior to doing so. [108] The remaining amendments—which are yet to be introduced—seek to update provisions pertaining to environmental management in the country. The previous amendment to the NEA took place in the year 2000. Civil society attributed the reversal of impetus on the amendments in question to a belief on the part of the government that fully implementing this commitment would hinder the rapid development of the country. [109]

The Ministry of Environment and/or the Central Environmental Agency could not be reached for comment.

Did It Open Government?

Access to Information: Did Not Change

Civic Participation: Did Not Change

At the time this commitment was adopted, civil society had expressed much concern [110] that the rapid proliferation of development projects across Sri Lanka threatened the country’s physical environment with adverse impacts on populations living in affected areas. [111] According to civil society stakeholders, this commitment would ameliorate such concerns by facilitating timely and informed public advocacy against, or for, development projects. [112]

At the outset of the action plan, environmental decisions linked to Initial Environmental Examinations (IEEs) had no provision for public comments or government accountability. Although Environmental Impact Assessments (EIAs) included adequate provision for public comments, it did not require government accountability in responding to them. Compounding matters further, an ill-defined distinction between an IEE and EIA meant that development projects could be approved following an IEE, with little or no information shared with the public. This commitment aimed to address this loophole by amending the National Environmental Act to include provisions mandating public comments and government accountability in both processes.

Although the Ministry of Environment and the Central Environmental Agency had taken preliminary steps toward drafting and passing the amendments, removing the proposed provisions for public feedback and government accountability from the draft amendments arrested progress in efforts to increase access to information. As the proposed amendments did not exist prior to the commitment, the commitment did not change the status-quo of government practice prior to the commitment.

In this context, civic participation has also not changed: despite positive initial progress, the ministry’s subsequent removal of proposed provisions for public comment and government accountability demonstrated a waning interest in facilitating meaningful public participation in environmental decision making. Civil society pointed out that this development was particularly concerning as the President of Sri Lanka also held the portfolio of Minister of Environment. [113]

Carried Forward?

Sri Lanka’s second action plan was not released at the time of this report. As this commitment only achieved limited completion by the end of term—marked by a notable waning of interest among key stakeholders—the IRM researcher recommends reconsidering the approach to this commitment.

Specifically, the researcher recommends that the commitment is not carried forward in its current form. However, given the importance of the subject, particularly in light of a construction-led, economic growth strategy, the IRM researcher proposes that the Ministry of Environment and the CEA convene multistakeholder consultations to re-examine the value and importance of public comments and government accountability in environmental decision making. These consultations should include public environmental agencies, members of civil society, environmentalists, and other relevant stakeholders.

Additionally, an interviewed civil society representative suggested that the government and civil society could work together to develop clear guidelines to distinguish between IEEs and EIAs. [114] At present, there is little clarity on what type or scale of development projects warrant a particular type of pre-assessment.

[105] National Environmental Act, No. 47 of 1980 (as amended by Act No. 56 of 1988 and Act No. 53 of 2000).

[106] M. G. W. M. W. T. B Dissanayake (Ministry of Mahaweli Development and Environment), interview by IRM researcher, 23 October 2017.

[107] Mihiri Gunawardena (Public Interest Law Foundation), interview by IRM researcher, 20 September 2018.

[108] Gunawardena, interview.

[109] Id.

[110] Mihiri Gunawardena (Public Interest Law Foundation), interview by IRM researcher, 9 October 2017.

[111] M. Rodrigo, “Projects Endanger Remaining Forest Cover” (The Sunday Times, 8 January 2017) http://www.sundaytimes.lk/170108/news/projects-endanger-remaining-forest-cover-223191.html.

[112] Gunawardena (Public Interest Law Foundation), interview.

[113] Gunawardena, interview, 20 September 2018.

[114] Id.