Coast Conservation (LK0008)

The IEE process under the Coast Conservation and Coastal Resources Management Act (CCCRMA) does not provide for public comments in respect of IEEs. An amendment to the CCCRMA in 2011 gives the Director General of CCCRM the discretion to call for an IEE and/or an EIA upon receipt of an application for a development permit for a development activity within the Coastal Zone. The Minister is empowered to prescribe by regulation categories of development activities for which an IEE is not necessary. In order to ensure that environmental impacts are adequately addressed when implementing projects, it is necessary that the IEE process under the CCCRMA is also 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.
Coast Conservation and Coastal Resources Management Act (CCCRMA) Amendments

1. One or two meetings/discussions with the MMDE and CCCRMD to advocate the need for the relevant amendments to the CCCRMA, CCCRMP and regulations New July 2016 Sep 2016
2. Drafting amendments to the CCCRMA, CCCRMP and regulations to include 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 CCCRMD in this endeavour. New Sep 2016 Nov 2016
3. Amendments to CCCRMA, CCCRMP and regulations with aforesaid provisions passed by Parliament New Nov 2016 Oct 2017
4. Enforcement of the amendments to CCCRMA, CCCRMP and regulations by the CCCRMD New Nov 2016
5. CCCRMD to facilitate the enforcement of the aforesaid amendments to CCCRMA, CCCRMP and regulations by strengthening its EIA unit 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 CCCRMA, CCCRMP 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 introduction of public participation provisions on IEEs as per amendments to the CCCRMA, CCCRMP 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 CCCRMD New Jan 2018 July 2018

8. Coast Conservation and Coastal Resources Management Act Amendments

Commitment Text:

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

(B) - Coast Conservation and Coastal Resources Management Act (CCCRMA) 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 CCCRMD to advocate the need for the relevant amendments to the CCCRMA, CCCRMP and regulations.
• 2 Drafting amendments to the CCCRMA, CCCRMP and regulations to include 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 CCCRMD in this endeavour.
• 3 Amendments to CCCRMA, CCCRMP and regulations with aforesaid provisions passed by Parliament.
• 4 Enforcement of the amendments to CCCRMA, CCCRMP and regulations by the CCCRMD.
• 5 CCCRMD to facilitate the enforcement of the aforesaid amendments to CCCRMA, CCCRMP and regulations by strengthening its EIA unit 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:

(A) the requirement of opening up IEEs for public comments as per the amendment to the CCCRMA, CCCRMP and regulations; and;

(B) the government accountability provisions.

• 7
• 04 programs each on State owned television and radio to create awareness amongst the civil society on: (i) the introduction of public participation provisions on IEEs as per amendments to the CCCRMA, CCCRMP 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 CCCRMD.

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

Supporting institution: Coast Conservation and Coastal Resource Management Department (CCCRMD)

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, please 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 Commitment 7 and Commitment 9.

Commitment Aim:

This commitment aimed to ensure public participation, transparency, and government accountability in coastal development projects. It sought to do this by introducing 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 primarily entail the amendment of related provisions under the Coast Conservation and Coastal Resources Management Act (CCCRMA).

Status

Midterm: Limited

This commitment achieved limited completion by the midterm. The Ministry of Environment had initiated preliminary, internal meetings with the CCCRMD on the amendment of the CCCRMA and related regulations (Milestone 8.1). [115] This included discussions on including provisions for public commenting on IEEs and on introducing government accountability in responding to comments received through IEE or EIA processes. [116]

However, according to the Public Interest Law Foundation (PILF), these preliminary discussions had not progressed further to draft the relevant amendments (Milestones 8.2–8.7). At the time of writing, the CCCRMD was compiling a number of different issues to be deliberated upon and incorporated into the anticipated amendment. [117] As a result, all the other activities under this commitment remained incomplete at the midterm.

End of term: Limited

Similar to Commitment 7, this commitment has experienced no progress since the midterm.

Milestones 8.1–8.7: Preliminary discussions to include provisions for public comments and government accountability did not come to fruition. According to civil society, the CCCRMD decided to remove related provisions from the draft amendment, thereby, stalling any further developments. The ministry or CCCRMD did not consult, or inform, civil society prior to removing these provisions. [118] Civil society attributed the reversal of impetus on these amendments to a belief on the part of the government that implementing this commitment would hinder expeditious coastal development. [119]

The Ministry of Environment or the CCCRMD could not be reached for comment.

Did It Open Government?

Access to Information: Did Not Change

Civic Participation: Did Not Change

This commitment reflects Commitment 7 which aimed to amend the National Environmental Act to facilitate public comments and government accountability in environmental decision making.

At the time this commitment was adopted, civil society had expressed much concern ^[120] that the rapid proliferation of development projects and the intensification of economic activity on, and around, the coasts of Sri Lanka had resulted in the modification of the physical nature of coastal zones and the gradual degradation of the natural coastal environment. [121] According to stakeholders, this commitment would ameliorate such concerns by facilitating timely and informed public advocacy against, or for, coastal development projects.

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 the process of Environmental Impact Assessments (EIAs) included adequate provision for public comments, it did not provide for 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 CCCRMA, CCCRMP, and regulations to include provisions mandating public comments and government accountability.

However, the commitment was not fully implemented and there was no observable improvement in access to information. Government and civil society stakeholders confirmed that the Ministry of Environment and the CCRMD had engaged in preliminary discussions to include provisions for public comment and government accountability in governing legislation. [122]  However, subsequently removing these key provisions from the draft amendments meant that there was no change in government practice toward improving public access to information.

In this context, the space for civic participation has also not changed: the ministry’s removal of proposed provisions for public comment and government accountability demonstrates waning interest in facilitating meaningful public participation in environmental decision making. [123]

Carried Forward?

Sri Lanka’s second action plan was not released at the time of this report. As with Commitment 7, Commitment 8 achieved limited completion with notable waning of interest among key stakeholders by the end of term. Therefore, the IRM researcher recommends reconsidering the approach to this commitment and suggests that this commitment is not carried forward in its current form.

However, as with Commitment 7, the researcher proposes that the Ministry of Environment and the CCCRMD convene multistakeholder consultations to re-examine the importance of public comments and government accountability in environmental decision making, and also work together to develop clear guidelines to distinguish between IEEs and EIAs. [124]

[115] M. G. W. M. W. T. B Dissanayake, interview by IRM researcher, 23 October 2017.

[116] Id.

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

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

[119] Id.

[120] K. Kumarasignhe, “Port City Project: Development or Disaster” (The Daily Mirror, 5 December 2016) http://www.dailymirror.lk/article/Port-City-Project-Development-or-disaSter-120208.html.

[121] “About Us” (Overview, Coast Conservation and Coastal Resource Management Department, 2015) http://www.coastal.gov.lk/index.php?option=com_content&view=article&id=109&Itemid=57&lang=en.

[122] Gunawardena, interview, 9 October 2017; Dissanayake, interview.

[123] Gunawardena, interview, 20 September 2018.

[124] Id.