Tribhuvan University

Environmental Impact Assessment with special reference in

Nepalese Context

A Seminar Paper Presented to Nepal Law Campus,

Central Department of Law for the Requirement of Degree of

B.A.LL.B

By

Anam Subedi

BA.LL.B, 4rd year

Nepal Law Campus

Exhibition Road

March, 2014

Exhibition Road, Kathmandu

2

Tribhuvan University

Nepal Law Campus

Letter of Approval

This seminar entitled “Environmental Impact Assessment with

special reference in Nepalese Context” submitted by Mr. Anam

Subedi has been approved by the following members of the Research

Committee.

Members of Research Committee:

…………………

………………… …………………. …………………

………………… (Supervisor) (Director, B.A.LL.B)

…………………

………………

(Campus Chief)

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Acknowledgment

First of all, I would like to express my thanks to Research

and Seminar Supervisor Prof. Dr. Tara Prasad Sapkota for his

scholarly guidance and support during the process of preparation

of this research proposal.

My thankfulness also goes to Associate Professor/Campus

Chief Mr. Karna Bahadur Thapa, Nepal Law Campus for allowing me

with this opportunity. Also my seminar paper would not have

completed within stipulated time without the scholarly support of

our environmental law teacher Rupa Basnet and Apurba Khatiwoda.

Many many thanks to you both as well.

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Finally, I also take this opportunity to express friends and

families for their support during the preparation of this

research.

April, 2015 Anam

Subedi

Preface

Environmental Impact Assessment (EIA) is one of the major

instruments integrated with a goal of making economic development

project, environmentally sound and sustainable. The use of EIA

iii

began in 1970 in USA and spread rapidly throughout the world

particularly after the UN Earth Summit held in 1992. To enable such

issues to be taken into account in decision making it was necessary

to introduce a systematic procedure of EIA. Therefore, to date many

of the countries of world have a legal and institutionalized system

of EIA. In the planning history of Nepal, the Sixth Plan

(1980-'85), for the first time recognized the need for EIA

integration for major infrastructure projects. The government of

Nepal enunciated environment conservation related policies in the

Seventh Plan (1985-90). In order to enforce this policy, a series

of guidelines were developed incorporating the elements of

environmental factors right from the project formulation stage of

development plans. Environmental Assessment Guideline 1993 was the

first “lesson learnt” document in Nepal which has played

facilitation role in the EIA process. Until than, international

obligations, conventions, guideline, treaties applied for the

environmental and biodiversity conservation measures at the policy

level.

Inspired by the international conventions, treaties and

planned EIA process internationally; Nepal government has

established EIA system for developmental projects with the

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formulation of Environmental Protection Rules 1997 as well as

sectoral policy, laws and guidelines. Based on the formulated Act,

regulations, and guidelines, criteria for IEE/EIA has established

that the development projects certainly require environmental

assessment study as per the nature of the projects unless they

cross the given threshold for the disruption of the environmentally

sensitive areas and their natural environment. Yet the ongoing EIA

system has big challenge towards environmental management and

biodiversity conservation for sustainable development.

List of abbreviation

CITES Convention on International Trade in

Endangered Species of Wild Fauna and Flora.

EIA Environmental Impact Assessment

EIS Environmental Impact Statement

EA Environmental Assessment

EPMs Environmental Protection Measures

IEE Initial Environmental Examination

 IFC International Finance Corporation

MOPE Ministry of Population and Environment

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NPC National Planning Commission

NEPA National Environmental Policy Act

PPP Policies, Plans and Programmes

REA Regional Environmental Assessment

SEA/SEIA Strategic Environmental Assessment

TEIA Trans-boundary Environmental Impact

Assessment

Table of Contents

Acknowledgements

Preface

List of Abbreviations

Table of Contents

Chapter One: Introductions

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1.1 General Introductions

1.2 Statement of the problem

1.3 Objectives of the study

1.4 Significance of the study

1.5 Literature Review

1.6 Limitation of study

1.7 Methodology of the study

1.8 Organization of the study

Chapter Two: Understanding Environmental Impact

Assessment

2.1 Origin and Development

2.2 Environmental Impact Assessments; Types, Differences and

Usages

2.3 Benefits and Costs of EIA

Chapter Three: EIA in International Context

3.1 Non-Legally binding Instruments

3.2 Legally Binding Instruments.

Chapter Four: EIA in Nepalese Context

4.1 Policies and Strategies

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4.2 EIA Guidelines

4.3 Species Protection List

4.4 Institutional Aspect

Chapter five: Some Landmarks Cases on EIA

5.1 Gabcikovo-Nagymaros Project Case

5.2 Pulp Mills Case

Chapter six: Findings, Conclusion and Suggestions

7.1 Findings and Conclusion

7.2 Suggestions

Bibliography

viii

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Chapter One: Introduction

1.1 Introduction

At a time of economic recession it is an encouraging sign

that many countries in both the developed and developing world

now recognize that major development projects may have harmful

environmental impacts. Increasingly the environment is being

thought of as an economic resource and not as a dispensable

luxury. The simulation models of the Club of Rome which

propounded an almost apocalyptic view of impending global

disaster have probably been the most important single influence

in fostering public concern for the effects of continued economic

growth upon the physical environment. It is in this broader

context of concern that Environmental Impact Assessment (EIA) has

been evolved.

EIA as an approach to the evaluation of development actions

evolved in the early 1970s, in response to a number of stimuli.

First was the growing scale, pace and associated repercussions of

resource development schemes such as large dams, motorways, and

nuclear power plants, which were built in post-war years.

Unforeseen harmful impacts occurred which reduced predicted

1

benefits. Second was an upsurge in environmental activism as the

public became increasingly aware of the environmental

consequences of development actions. Finally, there was

considerable evidence of inadequacy in existing appraisal

techniques. Projects were assessed mainly on grounds of technical

and economic feasibility, and potential environmental, social and

health impacts were rarely examined explicitly or rigorously.

Even when considered, the assessment usually took the form of

cost-benefit analysis, which attempts to express all impacts in

terms of resource costs valued in monetary terms and many

environmental, social and health impacts do not readily lend

themselves to economic analysis. They may be difficult to

quantify as in the case of disturbance to the special cultural

and social patterns of native peoples. They may also be long term

and indirect. For example, the Aswan High Dam had deleterious

secondary effects such as a decrease in agricultural

productivity. In addition, there was a failure to consider the

policy context in which proposals were put forward. A mechanism

for addressing more fundamental questions, regarding for instance

the need for a development, possible alternatives, and

2

appropriate levels of safety and environmental protection, was

needed.

1.2 Problems

The main problem of this study will be as follows:

Whether the rules and regulation regarding EIA is

sufficient or not ,

Whether the rules and regulation related to EIA in Nepal is

in compliance with international law, norms, and values or

not,

Whether judicial rulings are consistence or not,

1.3 objective of the study

The main objectives of the study will be as follows:

To provide general and theoretical knowledge of the EIA,

to impart the general practice and procedure related to

EIA,

to have appreciation of national as well as international

leading cases relating to EIA

1.4 Significance of the study

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The study has mainly focused on environmental impact

assessment as a preliminary document which forecasts the possible

future harm and way to resolve and minimize such harms. After the

completion of this research it helps to understand the meaning,

nature and scope of EIA. Law practitioners, judges, government

attorney, lawyers, other people who are concerned to the

environment as well, will be benefitted.

1.5 Limitation of the study

This study is conducted within a limited period. This paper

mainly aims to fulfill the academic requirement of BA.LLB

program. This report is not sufficient to know all contents of

EIA procedure.

1.6 Methodology of the study

This paper will be prepared with the application of the

principle and method of doctrinal research. It will be followed

analytical, historical and descriptive method based on necessity

where it requires. The data and information have been collected

from both the primary as well as secondary sources and authority.

Acts, constitution and supreme court's as well as the

4

International Court of Justice judgments relating to

environmental impact assessments and interpreted as primary

authority and various books, journal articles, websites,

published in news paper, research reports etc have been collected

and analyzed as secondary sources . These sources will be

collected from various libraries such as Nepal Law Campus,

Supreme Court, Nepal Bar, Office of the Attorney General, Central

Law Library located in Kathmandu.

1.7 Review of literature

In context of the study, the publication of concern

institution, different authored article, internet, research

report will be consulted during the preparation of this seminar

paper. Regarding this seminar paper, Convention on Environmental

Impact Assessment In a Transboundary Context 1991 helped to draw

up main provision on EIA .To achieved the purpose of this study

other various literatures also will be reviewed which is

enlisted in the bibliography. Mainly reviewed materials and

literatures will be text and material by following writers:

a. Principles of International Environmental Law,

Philippe Sands, 2003

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b. Perspectives on Environmental Impact Assessment,

Brian de clark

c. Manual of European environment of law, Alexander Kiss

and Dinah Shelton 2nd edition,

d. Handbook of Environmental Law, P.B. Sahasranaman,2009

e. Environmental Impact Assessment, process and

practice, Batu Krishna Uprety, December 2003

f. Nepal law review, Nepal law campus;

g. Nyayadoot, Nepal Bar Association,Nepal.

h. Nepal Kanoon Patrika etc.

1.8 Organization of the Study

The seminar has been divided into following chapters:

• The first chapter is related with the general introduction, statement of problems, objectives, significance, limitations, methodology and organization of the study.

• The second chapter has organized the Understanding Environmental Impact Assessment.

• The third chapter has organized EIA in International Context.

• The fourth chapter has organized EIA in Nepalese Context.

• The fifth chapter is related with Some Landmarks Cases onEIA.

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• The last chapter has organized the finding, conclusion and recommendation on the basis of the previous chapters.

Chapter Two: Understanding Environmental Impact

Assessment

Development is sine qua non for human progress. However, in

the rush for progress and economic development man should not

compromise the ability of the present and future generations to

fulfill their needs from natural resources. This does not mean

'shutting the door' to all developmental activities. There has to

be a 'common ground'. Herein lies a relevance of EIA, an

important legal instrument to reconcile environmental

considerations into socio-economic development. It is the process

of identifying, predicting, evaluating, and mitigating the bio-

logical, social, and other relevant effects of developmental

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proposals prior to major decisions being taken and commitments

made.1 It aims at predicting environmental impacts at an early

stage in project planning and design, finding ways and means to

reduce adverse impacts, so as to shape the project to suit the

local environment in addition to presenting predictions and

options to decision-makers.2 The EIA duly accommodates

environmental concerns into the decision-making process. This

concept has its foundations in the principle of sustainable

development. Basically, an EIA is an administrative tool used by

agencies to foresee and reduce the impact on the environment from

a developmental activity, vis-à-vis, balancing socio-economic

concerns with environmental concerns. EIA is thus a beacon for

the formation of viable environmental policy.

EIA is a assemblage of three words. If we analyse them, the

meaning would be clear.

1. Environment: In case of an EIA, the environment constitutes

three main sub system, vis-à-vis: the physical environment (

1 'Principles of Environmental Impact Assessment Best Practice', published in the website of International Association for Impact Assessment http://www.iaia.org/modx/assets/files/Principle%20of201A_web.pdf 2 United Nation Environmental Program-Division of Technology, Industry and Economics.

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air, water, atmosphere, geology, and other physical

features); the biological environment (flora and fauna,

their habitats, endangered species, and other biological

creations); the socio-cultural environment (demography,

customs, culture, development, public health, and other

social issues).

2. Impact: The oxford dictionary defines 'impact' as 'the

powerful effect that something has on somebody/something'.

Impact literally means effect (adverse effect). EIA, as a

planning tool, anticipates the likely changes or

consequences that a project may cause and suggests likely

alternatives if any. Thus, impact as far as EIA is concerned

means the positive and negative consequences that a proposed

project may have on the environment.

3. Assessment: To assess means to judge or calculate.

Assessment is the act of judging or forming an opinion about

something. Assessment is assembling, summarizing,

organizing, and interpreting pieces of existing knowledge,

and communicating them so that an intelligent but inexpert

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policy maker will find them relevant and helpful in their

deliberations.

The Espoo Convention on EIA in a transboundary Context 1991 has

defined EIA as " a national procedure for evaluating the likely

impact of a proposed activity on the environment".3 UNEP's

Governing Council' Decision 14\25 of 17 June 1987 states that

"EIA means an examination, analysis, and assessment of planned

activities with a view to ensuring environmentally sound and

sustainable development".4

The Environmental Protection Act, 1996 of Nepal has defined IEE

and EIA as follows and only difference between these definitions

is that IEE is carried out for a small-scale study and EIA is a

detailed study and evaluation.

"Initial Environmental Examination" means a report on

analytical study or evaluation to be prepared to ascertain

as to whether, in implementing a proposal, the proposal does

have significant adverse impacts on the environment or not,

whether such impacts could be avoided or mitigated by any

means or not.3 Art 17, Espoo Convention on EIA in a transboundary Context 1991 4 United Nation Environmental Program's governing council decision.

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"Environmental Impact Assessment" means a report on detailed

study and evaluation to be prepared to ascertain as to

whether, in implementing a proposal, the proposal does have

significant adverse impacts on the environment or not,

whether such impacts could be avoided or mitigated by any

means or not.

An environmental impact assessment describes a process which

produces a written statement to be used to guide decision making,

with several related functions. First, it should provide

decision-makers with information on the environmental

consequences of proposed activities and, in some cases, programs

and policies, and their alternatives. Secondly, it requires

decisions to be influenced by that information. And, thirdly, it

provides a mechanism for ensuring the participation of

potentially affected persons in the decision-making process.5

EIA is a planning tool, which anticipates, minimizes, and avoids

the adverse effect of a development proposal, thereby protecting

the environment and promoting sustainable development. It ensures5 Philippe sands, Principle of International Environmental Law, Cambridge Press, UK(1995): pg . 579

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that environmental concerns are fully and properly incorporated

and addressed in the development decision making process. It is

guided by three core values:

1 Integrity: the EIA process should be fair, objective,

unbiased, and balanced.

2 Utility: The EIA process should provide balanced and

credible information for decision-making.

3 Sustainability: The EIA process should result in

environmental safeguards.6

2.1 Origin and Development

Environmental impact assessments emerged internationally

after the 1972 Stockholm Conference7 and are now an established

international and domestic legal technique for integrating

environmental considerations into socio-economic development and

decision-making processes.8 Although various international and

national institution outlined the need for development and using

a tool for the integration of the environmental aspects in

6 'the Manual in Perspective' (section A), EIA Training Resource Manual, UNEP,2002,p.1107 Stockholm conference, 19728 Sands, Philippe, Principle of International Environmental Law, Cambridge Press, UK (1995): pg .799

12

development proposals, its need was first realized, as a

mandatory regulatory procedure in the National Environmental

Policy Act (NEPA) in 1969 of the United States of America.9 NEPA

was made effective 1 January 1970. It has introduced three

terminologies- environmental inventory, environmental assessment

and environmental impact statement (EIS), and contains three main

elements- a general policy on the environment, a requirement for

the production of an EIS for major federal actions, and the

provisions of the legislation .10

Since environmental impact assessments were first

established in the domestic law of the United States under the

1972 National Environmental Protection Act, they have been

progressively adopted in a very large number of national legal

systems. Internationally, environmental impact assessments are

required under numerous international conventions and in EC law,

in the requirements of various multilateral development banks,

9Alexander Kiss and Dinah Shelton, Manual of European environment of law, 2nd edition,page 123 first para; also see Uprety, Batu Krishna, Environmental Impact Assessment process and practice, December 2003; page 4 l10 Uprety, Batu Krishna, Environmental Impact Assessment process and practice, December 2003; page 4

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and in various non-binding instruments adopted at the regional

and global level. Principle 17 of the Rio

Declaration states that: environmental impact assessment, as a national

instrument, shall be undertaken for proposed activities that are likely to have a

significant adverse impact on the environment and are subject to a decision of a

competent national authority.

The mandatory language of Principle 17 is consistent with

the view that environmental impact assessments are now required

by general international law, particularly in respect of

environmentally harmful activities which may have transboundary

consequences, and if only to meet a state’s obligation to ensure

that activities within its jurisdiction and control ‘respect the

environment of other States or of areas beyond national control’

without first having assessed the transboundary environmental

consequences of potentially harmful activities. The language of

Principle 17, however, is general, and does not provide the

detail as to the minimum requirements which states need to

satisfy. To a certain extent the details relating to common

approaches are reflected in the instruments described in this

chapter and in the international cases which have arisen since

14

Principle 17 was adopted: New Zealand’s application to the ICJ

concerning the resumption by France of underground nuclear

testing (1995), the case concerning the Gabcikovo-Nagymaros

project (1997), and the dispute between Ireland and the United

Kingdom concerning the MOX plant (2001). These cases indicate an

increasing recognition that international law requires the

preparation of a prior environmental impact assessment before a

state engages in, or permits, an activity whichmay have serious

adverse impacts on the environment. Other developments, described

below, reflect the growing role of strategic environmental

assessment (of programmes and plans) and risk assessments

associated, in particular, with foodstuffs.11

In 1970s, some of the high-income group countries such as

Canada 1973 and Australia in 1974 adopted environmental

assessment as a regulatory procedure. Countries such as Colombia

and the Philippines introduced EIA procedure in 1974 and 1979

respectively. The decade of 1970s could be considered as the

formative stage.

11 Sands, Philippe, Principle of International Environmental Law, Cambridge Press, UK (1995): pg 800.

15

The project level expanded in 1980s Japan and European Union

member countries introduced it in the national system in 1984 and

1985 respectively. Usage of EA tool has been ramified and number

of countries has used it as mandatory regulatory procedure,

particularly after the 1992 UN Conference on Environment and

Development, popularly known as the Earth Summit.

Many countries have emphasized for project level

environmental assessment, i.e. EIA for the proposed proposals.

Some of the developed counties have also started using Strategic

Environmental Assessment (SEA) to mainstream environmental

concerns at the policy or plan or program levels. However, its

development and usage is at slow pace.

In Nepal, environmental assessment was started in early

1980s, particularly in the donor-assisted projects. In 1982,

Nepal established the Environmental Impact Study Project (EISP)

under the Ministry of Forests and Soil Conservation to initiate

activities for the formulation of necessary policies and laws and

create public awareness on the environmental matters. It also

carried our EA of some projects. Its usage was ramified after the

implementation of National EIA Guidelines 1993, separate EIA

16

guidelines for forestry and industry sectors in 1995, and

inclusion of several provisions in the legal regime on the

environment in 1996. 12

2.2 Different types of Environment Assessment (ES)

Different types of EAs could be used to identify, predict and

evaluate environmental impacts depending upon the nature and size

of the proposal. In general, six types of environmental

assessments are in current use. They are as follows:

1. IEE and EIA for the projects;

2. Regional Environmental Assessment (REA) for the proposals of

regional scale;

3. Sectoral Environmental Assessment (SeEA) of a secor level

proposals;

4. Cumulative Impact Assessment (CIA) for the past, present and

reasonably foreseeable future actions (proposal) in a given

area;

12 Uprety, Batu Krishna, Environmental Impact Assessment process and practice, December 2003; page 4 and 5.

17

5. Strategic Environmental Assessment (SEA) for a policy, or

plan or programme; and

6. Social Impact Assessment (SIA) for in-depth analysis of the

social aspects of a proposal.

Biodiversity professionals also see the importance of carrying

out a separate Biodiversity Impact Assessment (BIA) in the spirit

of the Article 14 of the Convention on Biological Diversity

(CBD), 1992. Similarly, EA for health sector (Health Impact

Assessment) is also carried out to focus study on identification

of hazard, interpretation of health risk and its management.

There are also emerging concerns on the need for carrying out a

separate Conflict Impact Assessment over the natural resource

use.

The project level EAs could be considered a the "First

generation" assessment. After nearly two and half decades of the

preparation and implementation of the project-level EAs, there is

remarkable shift on the need for developing a method to integrate

sustainability concept and identify the cumulative impacts of the

development proposals, and the "Second generation" EA has been

developed, what is now understood as the Strategic Environmental

18

Assessment. It provides an opportunity to assess the potential

environmental impacts of the policies, plans and programmes

(PPP), and helps to integrate environment management and

sustainability concept. SEA is still at the formative stage of

process development.

1) Project level:

The environmental impacts of a project could be assessed

through IEE or EIA or both, i.e. IEE may propose to conduct

EIA for detailed assessment. This assessment should clearly

identified, predict and evaluate site-specific impacts and

propose site-specified environmental protection measures

(EPMs) including provisions for environmental monitoring and

auditing. There are two categories of projects; point

(stationary) projects such as power stations, bridges,

industries etc and band (linear) project such as roads and

transmission lines. IEE and EIA is carried out for such

projects.

2) Sectoral level:

SeEA could be carried out to identify, predict and evaluate

impacts of a sector on the environment and propose EPMs at

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semi-detail level. For example, environmental assessment of

the run-of-the river or the reservoir type hydroelectricity

proposals could be done to document impacts at semi-detail

and generic level and to list general EPMs including

monitoring indicators. This approach would help to minimize

cost and simplify the project level EAs. This assessment

could be done for hill roads or valley roads or forest

production projects at commercial scale and its utilization

or species conservation proposals to know the broad-based

impacts and EPMs.

3) Regional Level:

In case of land use regulated development area, REA provides

an appropriate solution for environmental management of the

area concerned. Furthermore, the environmental agency,

particularly in the developing or the least developed

country, may not know activities of other agencies. Hence

REA is best suited to a comparatively larger geographical

area where different types of projects could be implemented.

4) Policy, Plan and Programme Level:

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The project level, sect oral level or the regional level of

environmental assessments face difficulties to identify and

predict impacts of a policy, plan or a programme (PPP) on

the environment. In order to address it, there is an

increasing use of second generation EA, referred as SEA.

This assessment helps to identify, predict and evaluate the

impacts of a policy, plan, or programme on the environment

and sustainability concept through interventions at PPP

levels.

SEA is a formalized, systematic, transparent and

comprehensive process of evaluating impacts of strategic

proposals for informed decision making. It may be wide

ranging and may relate to:

The overall development of key sectors of the economy

(e.g., transport, energy, mining, water supply,

forestry and tourism);

National, multi-sectoral PPPs (e.g., privatization

programmes and fiscal reform policy measures); and

International and multinational policy and programme

initiatives (e.g. international trade agreements,

21

internationally financed structural adjustment

programmes, and overseas aid programmes)

5) Cumulative Impact Assessments:

In order to assess accumulation of human-induced changes in

the valued environmental resources across the space and over

time, cumulative impact assessment (CIA) is useful and

provides information on additive and interactive

(Synergistic) impacts. The cumulative impacts are caused by

the aggregate of past, present and reasonably foreseeable

future actions in a given area. In other words, they are the

total effects including both direct and indirect effects on

a given resource and ecosystem no matter who have taken the

action.

Cumulative impacts= sum of project impacts + interaction

impacts.

6) Social Impact Assessment (SIA) for in-depth analysis of

the social aspects of a proposal.

Social Impact Assessment (SIA) is carried out to identify

social dimension, and associated processes so that

beneficiaries and affected people may participate to make

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the project and programme environmentally sound and

sustainable. Management of people and social issues in the

project has become crucial in the recent days and SIA has

been increasingly used to identify affected people, assess

potential social needs and demands, and absorptive capacity

of the beneficiaries. SIA is defined as the process of

assessing of estimating in advance the social consequences

that are likely to follow some specific policy actions or

project development, particularly in the context of

appropriate national, regional or district environmental

policy and legislation.

Facets of Environmental Impact Assessment

Strategic Environmental Assessment (SEA/SEIA)

A Strategic Environmental Assessment (SEA) is an impact

assessment tool and a facet of the EIA. An SEA can be

defined as ' the formalized systematic and comprehensive

process of evaluating the environmental impacts of a policy,

plan, or programme to ensure that they are fully included

and appropriately addressed at the earliest possible stage

of decision making on a par with social and economic

23

consideration'. The purpose of SEA is to ensure that

significant environmental consequences of certain policies,

plans, or programmes are identified and assessed during

their preparatory stage, which are communicated to the

decision- makers and are mitigated before their adoption.

The SEA process was envisaged to facilitate public

involvement, and giving relevant stakeholders an opportunity

to get involved in decision-making, thereby enhancing the

transparency in the decision-making process. SEA involves a

holistic approach, covers a wider area of projected

environmental impacts, and involves a longer life span than

an EIA. SEA, in contrast to EIA, provides decision-makers

with the information, strategies, and actual and projected

information on a larger scale. SEA does not in effect reduce

or replace an EIA process of individual development. By

integrating environmental consideration, SEA supports

sustainable development. In Nepal, the SEA is not

development, although developed countries like the European

24

Union have incorporated the SEA in their environmental

law.13

Rapid Environmental Impact Assessment (Rapid EIA)

An EIA is an elaborate process of assessing the future

effects of a current project. However, a criticism often

leveled against it is that it is a cumbersome and time-

consuming process. Normally, an EIA report will take one

year or more to complete. This is said to create impediments

for project proponents and to adversely affect the

blossoming of a proposed project. Rapid EIA is a 'shortcut'

to pacify the concerns of the project proponents and to

advance the impact assessment regime. Here, the project

proponents are allowed to furnish an EIA report known as

Rapid EIA report to the nodal agency (Impact Assessment

Agency, EIA Notification 1992) based on one season date,

other than the monsoon season. The project proponents are

13 Sahasranaman, P.B., Handbook of Environmental Law, New Delhi (2009),pg 80

(EU Directiives)

25

required to submit a detailed report when asked to by the

nodal agency.

EIAs are sometime tailor-made, without actually

conducting any studies. For example, a rapid EIA was

prepared to mine bauxite in the Ratnagiri District of

Maharasthra. The Rapid EIA was prepared by the project

proponent in April 2005 was actually a cut and copy version

of the Environmental and Social Impact Assessment (ESIA) for

a proposal by a Russian aluminium company, the SUAL Group,

to mine bauxite in the Komi Republic of Russia, prepared by

CSIR Environmentek ( a south African consultant) in April

2004 and submitted to the European Bank for Reconstruction

and Development.

Trans-boundary Environmental Impact Assessment (TEIA)

A Trans-boundary Environmental Impact Assessment (TEIA) is

another facet of the EIA, where the potential impact assessed

has the potential to affect two or more states. Normally, an

EIA is envisaged as a 'national instrument'. However when

there is a risk of significant environmental impact to states

other than the 'source state' ( it is where the environmental

26

harm originates), a TEIA becomes relevant. It is very similar

to the domestic EIA, but since it deals with multiple states,

the process is multilayered and cumbersome. It is thus the

"internationalized version of EIA'.

Initially, the EIA process at the international level

did not have many takers, barring few implicit references in

the 'no-harm principle'.14 However, later international

instruments like the United Nations Convention on the Law of

Seas, 1982 (UNCLOS);15Antarctic Environment Protocol, 1991;16

The Espoo Convention, 1991; The Convention on Biological

Diversity,199217, United Nations Non-Navigational Uses of

International Watercourses, 1997 (Watercourses Convention)

have given an explicit mandate to Environmental Impact at the

international level. Besides these, certain customary cases

decided by the International Court of Justice and other

tribunals have also helped to evolve this concept.18

14 Principle 21, Stockholm declaration; principle 21(d) World Charter of Nature, 1982.15 Article 206, United Nation Convention on Law of Sea,198216 Article 8, Antarctic Environment Protocol, 199117 Article 14, Convention on Biological Diversity, 199218 Sahasranaman, P.B., Handbook of Environmental Law, New Delhi (2009),pg 82 [Trail smelter Arbitration (US v. Canada)].

27

2.3 Benefits and Costs of EIA

Although environmental assessment is a predictive tool and is

considerably used to attain the goals of sustainable development,

it largely depends upon the quality of information available and

its use practice. It is generally advocated that usage of EA

contributes to maximize the benefits of a project or an action.

Some benefits of having EIA are as followe:

Environmental and other sustainability benefits, resulting

from modifications of actions prior to their approval and

implementation;

Savings in mitigation costs due to earlier detection of

potential environmental problems and better designed

preventive and corrective measures to deal with those

problems; and

Savings in time in obtaining approval for new developments,

also due to the earlier detection and correction of

environmental problems which reduce controversy and conflict

during the project authorization process.

Avoidance of delays through better project planning and

consultations with stakeholders;

28

Identification of alternatives which may help in meeting the

desired objectives with less environmental damage;

Avoidance and/or minimization of costly mistakes due to

knowledge and information about the details of impacts in

advance;

Better project design and greater productivity;

Adoption of cost-effective mitigation measures, and use of

cleaner production and environmental management systems,

particularly in the industries; and

"Built-in" resistance to possible environmental threats to

project performance.

Chapter Three: EIA in International Context

Prior to 1970s, infrastructure and industrial projects

grossly undermined the environmental aspects, and the projects

were either unsustainable or significantly added pollution load.

Various countries considered environmental management as an

additional and costly burden over development. As development

process became unsustainable and posed significant impact on

human beings and other life forms, developed countries realized

the need for developing a tool that facilitates the integration

29

of environmental aspects right from the planning stage of the

development works. The united states of America took the lead

role in this venture and enacted National Environment Policy Act

(NEPA) in 1969 that entered into force on 1 January 1970. The US

NEPA introduced the need for carrying out environmental

assessment before implementing major projects. International or

regional conferences, meetings, seminars, and workshops made

resolution to promote the use of this tool as an integral part of

national development process and a part of communication to

handle transboundary environmental impacts. The international

community emphasized on the incorporation of precautionary

principles so as to facilitate and promote development process

and this could be done through the adoption of EA process and

system. It is used to assist in shaping the development project

and make it environment friendly with the notion that it should

not affect the development.

3.1 Non-Legally binding Instruments

The Principles of the 1972 Stockholm Declaration do not expressly

identify environmental impact assessment as an instrument of

30

national or international policy. However, the rationale

underlying environmental impact assessment can be identified in

the principle that ‘rational planning constitutes an essential

tool’ for reconciling development and environment needs, and that

planning ‘must be applied to human settlements and urbanization

with a view to avoiding adverse effects on the environment and

obtaining maximum social, economic and environmental benefits for

all’.19 An earlier draft of the Stockholm Declaration contained a

draft Principle 20 which would have provided the elements of a

clearer commitment to environmental impact assessment. The

proposal set out in draft Principle 20 was not agreed at

Stockholm following the objections of several developing

countries, which maintained that the obligation to consult,

dependent upon a prior determination that activities or

developments could lead to significant adverse effects on the

environment, might be abused by developed states to impede

projects by developing countries. UN General Assembly Resolution

2995 (XXVII) (1972) partially revived draft Principle 20 by

providing that technical information on proposed works should be

19 Principles 14 and 15, Stockholm Declaration(1972)31

supplied to other states where there is a risk of significant

transboundary environmental harm, but that this information

should be received in good faith and not used to delay or impede

the development of natural resources.

Subsequent non-binding instruments developed the approach

underlying draft Principle 20. Principle 5 of the 1978 UNEP draft

Principles of Conduct proposed that: states should make an environmental

impact assessment before engaging in any activity with respect to a shared natural

resource which may create a risk of significantly affecting the environment of another

state or states sharing that resource.20

Whilst Principle 5 was innovative, it did not provide any detail

on how the assessment should be carried out, who should

participate in it, and to what purpose it should be put. This gap

was partly remedied by the 1982 UNEP Conclusions of the Study on

the Legal Aspects Concerning the Environment Related to Offshore

Mining and Drilling within the Limits of National Jurisdiction,

which provided more detailed guidance on the appropriate

modalities for carrying out an environmental impact assessment.21

Support for environmental impact assessment is found in a range20 Principle 5 UNEP draft Principles of Conduct(1978)21 UNEP/GC/Dec./10/14VI (1982).

32

of other acts of international institutions adopted after the

Stockholm Conference, including in relation to development

assistance.22 The 1982World Charter for Nature supports the

‘exhaustive examination’ and ‘assessment’ of activities likely to

pose a significant risk to nature or which may disturb nature,

and requires that activities should not proceed or should

minimize potential adverse effects on the basis of the findings

of the assessment or examination. By 1986, the Experts Group on

Environmental Law of the World Commission on Environment and

Development had identified environmental impact assessment as an

‘emerging principle of international law’, taking the view that

states planning to carry out or permit activities which may

significantly affect a natural resource or the environment should

make or require an assessment of their effects before carrying

out or permitting the planned activities.23 In 1987, UNEP

prepared guidelines on the nature and extent of the obligation to

22 OECD Council Recommendation C(85)104, Environmental Assessment of DevelopmentAssistance Projects and Programmes, 20 June 1985.23 Environmental Protection and Sustainable Development: Legal Principles and Recommendations(1986), 58–62.

33

carry out an assessment.24 The UNEP Goals and Principles include

three related objectives in ensuring the ‘environmentally sound

and sustainable development’ of planned activities: ensuring that

environmental effects should be taken into account before

decisions are taken to allow activities to be carried out;

providing for the implementation of national environmental impact

assessment procedures; and encouraging reciprocal procedures for

notification, information, exchange and consultation on

activities likely to have significant transboundary effects. The

Principles, which propose bilateral, regional or multilateral

arrangements, reflect a minimum set of standards which have been

broadly endorsed and are reflected in state practice, at the

national level and in binding international instruments.

UNCED and the ILC

References to environmental impact assessment abound in

Agenda 21. It calls on all countries to ‘assess the environmental

suitability of infrastructure in human settlements’, ensure that

‘relevant decisions are preceded by environmental impact

24 Goals and Principles of Environmental Impact Assessment, UNEP/GC/Dec./14/25 (1987);see also UNGA Res. 42/184 (1987).

34

assessments and also take into account the costs of any

ecological consequences’, integrate environmental considerations

in decision-making at all levels and in all ministries, and

ensure the transparency of and accountability for the

environmental implications of economic and other policies.25

Agenda 21 also endorses ‘comprehensive analytical procedures for

prior and simultaneous assessment of the impacts of decisions’,

including their environmental impacts and the assessment of

‘costs, benefits and risks’, and the systematic application of

techniques and procedures for assessing environmental impacts.26

Environmental impact assessment is also encouraged in specific

Agenda 21 programmes, including deforestation, atmospheric

protection and energy use, fragile mountain ecosystems,

conservation of biological diversity, management of

biotechnology, protection of oceans and seas, protection of

freshwater resources, management of toxic chemicals, solid wastes

and sewage, and radioactive wastes.27 Agenda 21 endorses the need

25 Paras. 7.41(b) and 8.4, Agenda 2126 Paras. 8.5(b) and 10.8(b), Agenda 21

27 Paras. 9.12(b), 11.24(a), 13.17(a), 15.5(k), 16.45(c), 17.5(d), 18.22(c), 19.21(d), 21.31(a) and 22.4(d). Earth Summit (UN Conference on Environment and Development) held in Rio de Janeiro, Brazil, in

35

for individuals, groups and organisations to participate in

environmental impact assessment procedures.28 The WSSD broadly

confirmed UNCED’s requirements.29

Article 7 of the ILC’s draft Articles on the Prevention of

Transboundary Harm from Hazardous Activities draws upon the

output of UNCED, and in particular Principle 17 of the Rio

Declaration. Article 17 provides that: Any decision in respect of the

authorization of an activity within the scope of the present articles shall, in particular,

be based on an assessment of the possible transboundary harm caused by that activity,

including any environmental assessment.

The ILC’s commentary to its draft Articles notes that the

requirement of assessment of adverse effects of activities has

been incorporated in many international agreements, and that the

practice of requiring an environmental impact assessment ‘has

become very prevalent’ in order to assess whether a particular

1992.28 Para. 23.2. Agenda 21.Earth Summit (UN Conference on Environment andDevelopment) held in Rio de Janeiro, Brazil, in 1992.29 Agenda 21, Plan of Implementation, e.g. paras. 18(e), 34(c) and 36(i).

36

activity has the potential to cause significant transboundary

harm.30

3.2 Treaties and other Binding Instruments.

A number of treaties and other binding instruments include

provisions requiring the performance of an environmental impact

assessment in specified circumstances. The 1985 EC Directive on

Environmental Impact Assessment31 led the way in providing

international guidance on the nature and extent of an

environmental impact assessment and the use to which it should be

put, an approach subsequently adopted and extended in the 1991

UNECE Convention on Environmental Impact Assessment in a

Transboundary Context (1991 Espoo Convention), and in the 1991

Protocol on Environmental Protection to the Antarctic Treaty. But

these were by no means the first instruments supporting, in

general terms, the use of environmental assessment. The 1974

Nordic Environmental Protection Convention required an assessment

of the effects in the territory of one party of activities

30 A/56/10, 402–3 (2001). ILC’s draft Articles on the Prevention of Transboundary Harm from Hazardous Activities.31 Paras. 7.41(b) and 8.4. ILC’s draft Articles on the Prevention of Transboundary Harm from Hazardous Activities.

37

carried out in the territory of another party:32 the Convention

allows authorities to require an applicant for a permit to carry

out environmentally harmful activities to ‘submit such additional

particulars, drawings and technical specifications’ as are deemed

necessary for evaluating the effects in another state. The UNEP

Regional Seas Conventions include general language on

environmental impact assessment, as does the

1982 UNCLOS.

Article 14(1) of the 1985 ASEAN Agreement similarly limits

the extent of the obligation to carry out an environmental impact

assessment, requiring that the contracting parties: undertake that

proposals for any activity which may significantly affect the natural environment shall

as far as possible be subjected to an assessment of their consequences before they are

adopted, and they shall take into consideration the results of their assessment in their

decision-making process.

Many other international agreements addressing specific

environmental media or particular activities provide for express

or implied general obligations on environmental impact

assessment. Such agreements include those governing the32 Stockholm, 19 February 1974, in force 5 October 1976; 13 ILM 511 (1974), Art. 6.

38

Antarctic, atmospheric emissions of nitrogen oxide,33

occupational health,34 asbestos use,35 transboundary movements of

waste36transboundary watercourses,37 industrial accidents,38 the

energy sector,39 public participation,40 and mining on the seabed

of the high seas. For some early conventions which did not

include provisions on environmental impact assessment, such as

the 1971 Ramsar Convention, the parties have subsequently adopted

guidelines. The 1985 Vienna Convention and its 1987Montreal

Protocol do not expressly require that the development of

replacement technologies for prohibited ozone-depleting

substances be subject to an environmental impact assessment; this

will limit the effectiveness of those treaties. The convoluted

language of the 1992 Climate Change Convention appears to require

an impact assessment of the measures taken to mitigate or adapt

to climate change on a range of factors including the

33 1988 NOx Protocol, Art. 6.34 1985 Occupational Health Services Convention, Art. 5.35 1986 Asbestos Convention, Art. 1(2).36 1989 Basel Convention, Art. 4(2)(f) and Annex V(A).37 1992Watercourses Convention, Arts. 3(1)(h) and 9(2)(j), and its 1999Protocol onWaterand Health, Art. 4(6)38 1992 Industrial Accidents Convention, Art. 4 and Annex III.39 1994 Energy Charter Treaty, Art. 1940 1998 Aarhus Convention, Art. 6(2)(e) and Annex I.

39

environment, and requires all parties to: take climate change

considerations into account, to the extent feasible, in their relevant social, economic

and environmental policies and actions, and employ appropriate methods, for example

impact assessments, formulated and determined nationally, with a view to minimizing

adverse effects on the economy, on public health and on the quality of the environment,

of projects or measures undertaken by them to mitigate or adapt to climate change.41

1982 UNCLOS

The 1982 UNCLOS requires the prior assessment of the effects of

activities on the marine environment. Under Article 206: When

states have reasonable grounds for believing that planned activities under their

jurisdiction or control may cause substantial pollution of or significant and harmful

changes to the marine environment, they shall, as far as practicable, assess the

potential effects of such activities on the marine environment and shall communicate

reports of the results of such assessments at appropriate intervals to the competent

international organisations, which should make them available to all states.42

Directive 85/337/EEC (as amended)

Council Directive 85/337/EEC on the environment was the first

international instrument to provide details on the nature and

scope of environmental assessment, its use, and participation41 Art. 4(1)(f). Climate Change Convention(1992)42 Art.205 and 206 UNCLOS(1992).

40

rights in the process. Its origins lay in the EEC’s 1973 First

Environmental Action Programme, which identified the need to

implement procedures to evaluate the environmental effects of

certain activities at the earliest possible stage. Later on the

amending Directive 97/11/EC is firmly rooted in attaining

environmental objectives, in a precautionary context.43

Directive 85/337/EEC requires the environmental assessment

‘of public and private projects which are likely to have

significant effects on the environment’, excluding projects

serving national defence purposes or projects whose details are

adopted by a specific act of national legislation, since these

were expected to undergo an appropriate assessment during the

legislative process. Article 2(1) of the Directive provides that:

member states shall adopt all measures necessary to ensure that, before consent is

given, projects likely to have significant effects on the environment by virtue, inter alia,

of their nature, size or location are made subject to an assessment with regard to their

effects.44

43 Sifakis, A., ‘Precaution, Prevention and the Environmental Impact Assessment Directive’, 1998 European Environmental Law Review 349.44 Art 2(1) Directive 97/11/EC

41

Directive 2001/42/EC and strategic environmental

assessment

In the 1990s it became apparent that the assessment of projects

alone did not ensure that potential environmentally harmful

activities would necessarily be prevented, and that underlying

policies and plans which would give rise to individual projects

were not being assessed adequately, if at all, for their

environmental effects. EC Directive 2001/42/EC is the first

international instrument to impose binding obligations, requiring

member states to ensure that ‘an environmental assessment is

carried out of certain plans and programmes which are likely to

have significant effects on the environment’, and is to be

domestically implemented by 21 July 2004.68 The Directive is

likely to inspire changes elsewhere: a Protocol on strategic

environmental assessment is being negotiated under the 1991 Espoo

Convention, and the World Bank and other multilateral development

banks have been informally making use of, and considering the

adoption of an instrument on, strategic environmental assessment.

42

Under the EC Directive, an assessment is to be carried out

for all programmes prepared in specified areas or which require

an assessment under Article 6 of the 1992 Habitats Directive,

unless they use only small areas at local level and entail minor

modifications, in which case an assessment is only required where

the member state determines that it is likely to have a

‘significant environmental effect’.45 Plans and programmes

relating to national defence, or civil emergency or financial or

budget matters are not subject to the Directive.46

1991 Espoo Convention

The 1991 Espoo Convention was adopted under the auspices of

the UNECE, and in several aspects it imposes more onerous

requirements than the 1985 EC Directive on which it is based. It

came into force on 10 September 1997, and commits parties to take

all appropriate and effective measures to prevent, reduce and

control significant adverse transboundary environmental impacts

from proposed activities. The Convention requires that parties of

45 Art 3(3), Directive 2001/42/EC and strategic environmental assessment46 Art. 3(8). Directive 2001/42/EC and strategic environmental

assessment43

origin must notify affected parties of certain proposed

activities which are likely to cause a significant adverse

transboundary impact, and requires discussions between concerned

parties.47

A ‘transboundary impact’ is defined as: any impact, not exclusively

of a global nature, within an area under the jurisdiction of a party caused by a

proposed activity the physical origin of which is situated wholly or in part within the

area under the jurisdiction of another party.48

The Convention requires transboundary co-operation. Under Article

3, the party of origin must notify any of the seventeen proposed

activities listed in Appendix I which is likely to cause a

significant adverse transboundary impact, as early as possible,

to ‘any party which it considers may be an affected party’ and no

later than when informing its own public. The notification must

include information on the proposed activity, its possible

transboundary impact, and the nature of the possible decision,

and should allow a reasonable time for a response as to whether

the affected party will participate in the procedure. Where the

affected party decides not to participate, the operational47 Art. 2(1), (4) and (5); Espoo convention(1991)48 Art. 1(viii), Espoo convention(1991)

44

provisions of the Convention will not apply, and the party of

origin can decide on the basis of its national law and practice

whether to carry out an assessment.49

Once the affected party decides to participate in the procedure,

and after it has received information relevant to the proposed

activity and its possible significant transboundary impact, it

must promptly provide the party of origin, at its request, with

reasonably obtainable information relating to the potentially

affected environment under its jurisdiction, where such

information is necessary for the preparation of the environmental

impact assessment.50 Where a party considers that it is likely to

be affected by a significant adverse transboundary impact of a

proposed activity listed in Appendix I, and it has not been

notified in accordance with Article 3(1), an exchange of

‘sufficient information’ must take place at the request of the

affected party ‘for the purposes of holding discussions on

whether there is likely to be a significant adverse transboundary

impact’. If the parties agree that such an impact is likely, the

49 Art. 3(4). The operational provisions are Arts. 4–7. Espoo convention(1991)50 Art. 3(6), Espoo convention(1991)

45

provisions of the Convention are to apply. If there is no such

agreement, any such party may submit the question to an inquiry

commission established under Appendix IV unless another method of

settling the question is agreed. Concerned parties must ensure

that the affected party’s public is informed about the proposed

activity and is provided with an opportunity to make comments or

objections to the competent authority of the party of origin.

World Bank and other multilateral lending institutions

Many international organisations, including multilateral

development banks, have developed their own environmental impact

assessment procedures, of which the most widely studied is that

adopted by the World Bank in 1989. World Bank Operational

Directive 4.01 was adopted in 1989, its objective being to ensure

that the development options adopted were sound and enduring from

an environmental perspective and that environmental consequences

were recognised at an early stage in the project cycle and

included in the project scheme.51 The Operational Directive was

the subject of significant criticism, including the failure to

provide for a ‘no-action alternative’ whereby the project may be51 Operational Directive 4.00, Annex A, Environmental Assessment (1989).

46

stopped because the environmental risks are too great to allow

the project to proceed at all, and its silence as to mandatory

requirements concerning the provision of information to local

populations and their right to participate in the environmental

impact assessment process. In 1999, the policy was converted into

a new format, now reflected in Operation Policy (OP) 4.01 and

Bank Procedures (BP) 4.01, which have sought to address these and

other issues.

Chapter Four: EIA in Nepalese Context

In early 1980s, the need for EA was realized in Nepal as a

means for integrating environmental aspects in development

programmes and projects. At the beginning, the multilateral donor

agencies and development partners encouraged and provided fund to

carry out project specific EAs. This initiative prompted the

government to include EA requirements in policies. In mid-1980s,

the environmental assessments of some infrastructure projects

were carried out through 'learning by doing approach', i.e.

through limited skill and knowledge. However it contributed a lot

to realize its importance and enhance public awareness on the

importance and benefits of this tool . this also contributed to

47

formulated comprehensive policies and environmental laws with

greater focus on EAs.

4.1 Policies and Strategies

Although planned development was started in 1957 (2013 B.S.),

Nepal recognised the importance of environment conservation in

the mid-1970, and included policies since the Fifth Plan (1975-

1980). This accommodated land use related policies and expanded

policies on natural resources management. The Sixth Plan (1980-

1985) under the environment and land use policy emphasized on the

integration of environmental aspects while constructing large-

scale development projects (NPC, 1980).

The Seventh Plan (1986-1990) stated a policy that the

developmental programmes will be implemented only after EIA

study. The Plan outlined the need for carrying our EIA of

industrial, tourism, transportation, water resources,

urbanization, agriculture, forests and other development

programmes to identify adverse impacts on the environment

(NPC,1985).

The Eighth Plan (1992-1997) reiterated the need for carrying

our EIA of both central and local level projects before

48

their implementation. In order to implement the policy, the

Plan included programmes for the formulation of EIA

guidelines for different sectors, conduct EIA study of

large-scale development projects in road, hydropower,

industry, irrigation, settlement, drinking water, and sewage

sectors (NPC, 1992).

The Ninth Plan (1997-2002) introduced policies to promote

participatory EIA system, carry out EIA study in order to

ensure biodiversity conservation while implementing remote

area development projects, and make necessary procedures for

stakeholders participation in EA process (NPC. 1997).

The Tenth Plan (2002-2007) has re-emphasized to make the EIA

system effective and monitor the implementation status of

the projects, which carried out EIA study. The Plan has for

the first time recognised the need for carrying out SEA to

any policy before adoption (NPC, 2003).

The industrial Policy 1992 has emphasized on adopting

measures to minimize adverse impacts on the environment

during the establishment, expansion and diversification of

industries.

49

The tourism Policy 1995 emphasize on implementing

environmental protection programmes in an effective and

integrated manner to promote sustainable tourism

development.

The National Solid Waste Management Policy, 1996 underscores

the importance of carrying out EIA prior to the selection of

the final waste disposal site.

The Hydropower Policy 1992 incorporated the concept of EIA.

The Hydropower Development Policy 2001 has a policy to make

necessary arrangement in order to minimize the environmental

impacts of hydropower projects, and rehabilitation of

displaced families. EIA could be extensively used for

identification and minimization of adverse impacts.

The irrigation Policy 1993 (revision 1997) made specific

provision and urge to design and implement irrigation

projects and programmes based on the recommendations of EIA

and IEE study, and such reports should be prepared taking

into accounts the National EIA guidelines 1993.

The Public Infrastructure (Build, Operate and Transfer)

policy 2000 states that the infrastructure shall be built

50

and operated in such a way that it may not adversely affect

the environment during the construction and operation of the

infrastructure.

The National Wetland Policy 2003 has also included the need

for carrying out EIA in accordance with the provisions of

the existing laws for development project and action, which

are planned for implementation nearby the wetlands (MFSC,

2003)

The need for EIA study for the master plan was realized in

late 1980s. Nepal endorsed the Master Plan for Forestry

Sector (MPFS) in 1989 and conducted EIA of this plan before

its endorsement in order to assess the impacts of the

proposed forestry programmes on the environment

(HMG/ADB/FINNIDA, 1988).

The Agriculture Perspective Plan (APP) has not clearly

mentioned the need for EIA studies in the agriculture

sector. However, it recognizes the importance of

environmental management to increase agricultural

production.

51

Biodiversity Strategy, adopted by HMG in August 2002, has

also a strategy to conduct EIA in accordance with the

provisions of Environmental Protection Act 1996 and

Environmental Protection Rules 1997 to assess significant

impacts of development activities on biodiversity. The

Strategy has given emphasis to ensure effective

implementation of the existing laws regarding EIA

(MFSC/GEF/UNDP, 2002).

4.2 EIA Guidelines

The legal requirement alone does not provide rooms to

prepare quality reports, and the needs for guidelines and manuals

were realized to facilitate the preparation of EA reports. The

National EIA guidelines 1993 has been the breakthrough in

streamlining EA process in Nepal. This guidelines was implemented

as a point of time where there were no legal requirements on the

environmental matters and EA system. Besides, HMG also

implemented separate EIA guidelines for forestry and industry

sectors.

The national EIA Guidelines published in Nepal Gazette

(Rajpatra) on 19 July 1993 includes details on the process of

52

preparing EA reports and their review and approval processes. The

guideline includes 133 chapters and 6 schedules.

EIA guidelines for Forestry and Industry Sectors 1995 were

also developed within the broad framework of the National EIA

Guidelines 1993. The Forestry Sector EIA Guidelines 1995 differs

slightly from the National EIA Guidelines.

Similarly, HMG has endorsed a separate EIA Guidelines for

Industry Sector in 1995. This guideline resembles with the

National EIA Guidelines 1993, and differs basically on Schedule.

Various sectoral EIA guidelines were drafted in mid-1990s and all

of them were developed within the broader framework of the

National EIA Guidelines.

The Environmental Management Guidelines, 1997 could be considered

as a milestone to mainstreaming environmental concerns in the

road sector. The guidelines formulates problem-specific

environmental protection measures, promote public participation

and coordination with other institutions, and provides a basis

for socio-economic considerations, land acquisition and

compensation, economic impacts and cultural heritage in the road

projects.

53

With the efforts of about 7 years, HMG also issued an

Environmental Planning Guidelines in 1998. This guideline includes

environmental issues to be considered during the preparation of

environmental plans at village, municipality and district levels.

This also includes institutional roles and responsibilities for

their implementation including the approval process (MOPE, 1998).

In a nutshell, EIA guidelines and associated manuals provide

a basis to integrate environmental aspects in different sectors.

It indicates that hydropower, road and forestry sectors are ahead

than other sectors in bringing the proponent in the mainstream of

environmental assessments. The proponents are using these

guidelines to prepare and improve the quality of EA reports

during the last decade.

4.3 Species Protection List

Species protection list could also be used to evaluate the

significance of the identified and predicted impacts of the

proposed activity on the biological environment. Such a list

provides the proponent an opportunity to know the importance of

the species and give adequate attention for their conservation

54

including of ecosystems having local, national and international

significance.

Nepal is a party to the Conventions related to species

conservation such as CITES, Biodiversity, Heritage Conservation,

and Ramsar Conventions etc., attention should be given to

evaluate the impact of the project activities on meeting their

obligations.

Nepal is a state member of the World Conservation Union- IUCN,

and sixty species of non-endemic plants reported in Nepal are

included in the IUCN category. 28 species of mammals, 22 species

of birds, 9 species of reptiles, and 2 species of insects are

also included in IUCN list.

Similarly Nepal is a party to the Ramsar Convention by

designating the Koshi Tappu area as the Ramsar site. The other

three sites namely Bishazar tal (Chitwan), Ghodaghodi tal

(Kailali) and Rampur tal (kailali) has also been included in the

Ramsar list in September 2003.

In response to the World Heritage Convention, Nepal has designed

2 natural heritage sites- Royal Chitwan National Park, and

Sagarmatha National Park and 8 cultural heritage sites,

55

Swayambhnath area, Pashipatinath area, Boudhanath area, Hanuman

Dhoka Durbar area, Patan Durbar Area, Bhaktapur Durbar area,

Changu Narayan and Lumbini area. If the project is to be

implemented in such areas, attention should be given to avoid or

mitigate adverse impacts on these sites taking into account

national interest and international commitments.

4.4 Institutional Aspect

A number of governmental, semi-governmental and non-

governmental organizations are involved in integrating

environmental aspects, including EA in development projects and

programmes within their broad institutional functions and

responsibilities. In Nepal, the ministry of Forest, established

in the early 1950s, is the oldest organization responsible for

managing the natural environment. In the late 1970s, HMG realized

the need for coordinating natural resources management programmes

and constituted a National Commission for the Conservation of

Natural Resources (NCCNR) under the chairmanship of ministry of

Forest and Soil Conservation.

In Nepal, private sectors particularly the industry and

hydro-electricity developers and promoters have shown interest to

56

make their products and services environment-friendly. Industries

have started adopting cleaner production and green productivity

concept. The Federation of the Nepalese Chambers of Commerce and

Industry (FNCCI) has constituted an Environmental Committee, and

established an Environment Cell to promote environmental

conservation in the industry sector. Private sector hydropower

developers are involved in carrying out EAs required by the

environmental law.

A number of non-governmental and community based

organizations are also involved in raising environmental

awareness and in promoting the use of EA tool. Most of the NGOs

have been registered under the Association Registration Act, and

affiliated with the Social Service Council.

Based on the nature and functions, some NGOs could be considered

as the professional NGOs such as Nepal Zoological Society, Nepal

Botanical Society, Nepal Engineers Association, Nepal Medical

Association, Nepal Medical Association, Nepal Geological Society,

and Nepal Agriculture Association etc.

A national Association of EIA professionals has also been

registered as a NGO under the Association Registration Act. It

57

could be considered a forum of EA practitioners, and those

trained in EA tools and having advanced studies on environmental

management. This association has also provided inputs in EIA

review process in case by case approach.

Various institution has played pivotal role in promoting

awareness on EA such as providing consultation services for the

preparation of EA reports, developing human resources, and

providing inputs in report review process and decision making.

These organizations are also contributing in environmental

monitoring and auditing. But really for this they are lacking

trained human resources on EIA. This is a big challenge in

maintaining well assessments regarding environmental impacts.

Chapter five: Some Landmark Cases on EIA

5.1 Gabcikovo-Nagymaros Project Case

The Gabcikovo-Nagymaros Project Case 52 involved a dispute between

Hungary and Slovakia concerning the Gabcikovo-Nagymaros Project.

The initial 1977 treaty contemplated construction and operation

of dams on the river Danube for the production of electricity,52 http://www.icj-cij.org/docket/index.php?pr=269&p1=3&p2=1&case=92&p3=6

58

flood control, and improvement of navigation. A Joint Conceptual

Pans was provided to guide the technical specifications. Each

party would have equal footing with respect to financing,

construction, and operation of the system. Hungary would be

responsible for the project in their part and Slovakia on their

side of border.

The problem started in early 1989, when Hungary suspended

its part of work at Nagymaros, citing uncertainty with respect to

environmental impact studies. Talks between the sides broke down,

which led to the total abandonment of work by Hungary. Meanwhile,

Slovakia had built their dam spending billions. Aggrieved by

this, Slovakia unilaterally constructed 'Variantn C' as a

'Professional Solution', to divert the river Danube into a

reservoir, and Hungary purposed to terminate the treaty.

By an agreement of parties the matter was referred to the

international Court of justice (ICJ). The Court was asked to

decide .

1) Whether Hungary was entitled to suspend and subsequently

abandon, in 1989, work on the Nagymaros Project and on the

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part of the Gabcikovo Project for which the treaty

attributed responsibity to the Republic of Hungary;

2) Whether the Czech and Slovak Federal Republic was entitled

to proceed in November 1991 to the provisional solution;

3) What the legal effects of the 19 May 1992 notification of

hungary's termination of the treaty were.

The court found that Hungary was not entitled to suspend the

work of its project in Nagymaros on the doctrine of treaty law

and the environmental necessity raised by Hungary was not a

sufficient excuse to do so. Consequently, Hungary's termination

of the treaty was not effective. With respect to the second

question, the Court found that Slovakia was not entitled to take

unilateral action to construct and implement Variant C. Both

parties were still bound by the treaty obligations and were

ordered to reach an agreement on the proper disposition of the

proposed project.

Vice President Weeramantry gave a concurring yet separate

opinion, stating 'had the possibility of environmental harm bee

the only consideration to be taken into account in this regard,

the contention of Hungary could well have proved conclusive'. He

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endorsed the principle of Sustainable development as 'an integral

part of modern international law' and protection of the

environment is a vital part of the contemporary human rights

doctrine. According to him, the EIA should not be confined to the

pre-project assessment of the possible environmental impacts, but

should be a continuing assessment and evaluation as long as the

project is in operation. Modern doctrines of international

environmental law should apply equally to all projects regardless

of the date on which the agreement has been made. With regard to

the dispute, he stated that 'a joint operation regime must be

established in accordance with the 1977 Treaty in order to carry

out continuous monitoring of environmental impact of the

project'. Although he concurred with the majority in holding that

treaty law governed this case, his opinion was much more direct

in citing the scientific and environmental matters.

The case of Gavcikovo-Nagymaros presented the ICJ with a

golden opportunity to establish an international obligation to

conduct an EIA before implementing projects having the potential

to impact the environment. Instead, the Court found that, 'unless

EIA is specifically required by a treaty or is the customary

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international practice at the time the treaty is formed, parties

do not have an assessment when implementing that treaty.

Despite this, the opinion of Weeramantry finds favour with

many scholars and leads them to believe that EIA should be firmly

established as a principle of customary international law.

5.2 Pulp Mills Case

The International Court’s 2010 judgment in Pulp Mills on the

River Uruguay is the most significant authority on EIA in general

international law. It is the first occasion on which an

international court has held that prior assessment of

transboundary impacts is not merely a treaty based obligation but

a requirement of general international law.53

The case arose out of the construction of a wood pulp mill in

Uruguay. Effluent from the mill would be discharged into the

River Uruguay, which forms the border with Argentina. There is no

reference to EIA in the 1975 Statute of the River Uruguay, the

applicable law in the dispute, nor are Argentina or Uruguay

parties to the 1991 Espoo Convention on Transboundary EIA.

53 http://www.unece.org/fileadmin/DAM/env/eia/documents/mop5/Seminar_Boyle.pdf

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Uruguayan law nevertheless required an EIA for a project of this

kind and one was duly carried out by Botnia, the company which

owned the plant, and two further EIAs were also produced by

consultants acting for the IFC, which funded the construction

work. This finding treats transboundary EIA as a distinct and

freestanding obligation in international law – reflecting

Principle 17 of the Rio Declaration on Environment and

Development, the Espoo Convention, and Article 7 of the ILC draft

articles on transboundary harm. Nevertheless, the court also

endorsed the alternative view that EIA is a necessary element of

the general obligation of due diligence in the prevention and

control of transboundary harm, suggesting that the content of the

obligation may evolve over time, and will reflect the

capabilities of the party concerned and the particular

circumstances of the case. Either way, the Court has now

confirmed that in appropriate circumstances an EIA must be

carried out prior to the implementation of a project that is

likely to cause significant transboundary harm.54

54 http://www.unece.org/fileadmin/DAM/env/eia/documents/mop5/Seminar_Boyle.pdf

63

The International Court’s conclusion that transboundary EIA

is a requirement of customary or general international law is no

surprise given the growing body of treaties that require one,

including the Espoo convention, as well as the instances of state

practice and the policies of international lending agencies. Few

states faced with litigation are likely to deny that there is an

obligation in international law to carry out a transboundary EIA

and Uruguay did not do so in Pulp Mills. What states may do

instead is deny that the circumstances require an EIA (no risk

of transboundary harm) or argue that an EIA in fact was carried

out. In Pulp Mills Uruguay chose the latter option. Argentina

responded by arguing that the EIA was inadequate: that

alternative sites should have been assessed and that other

matters had been overlooked or inadequately evaluated. The

significant question in the case was thus not the obligation to

do an EIA but what that obligation entailed.

The practice of the parties in MOX Plant and Pulp Mills

similarly shows that, where activities with a known risk of

potentially significant pollution are involved, the necessity of

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an EIA can be presumed, even if the actual risk is a small

one55 . In two other cases the ITLOS found that the risk of harm

to the marine environment ‘could not be excluded’56: in Land

Reclamation it expressly ordered the parties to assess the risks

and effects of the works, while in Southern Bluefin Tuna its

order allowed catch quotas to be increased by agreement only

after further studies of the state of the stock. The outcome in

these cases shows that an EIA must be undertaken if there is some

evidence of a risk of significant harm to the human or natural

environment – even if the risk is uncertain and the potential

harm not necessarily irreparable.

Chapter six: Findings, Conclusion and Suggestions

7.1 Findings and Conclusion

The existing policy and legal instruments since beginning of

the late 1980s has a big deal for the development of EIA system in

Nepal.

55 MOX Plant Case (Provisional Measures) ITLOS No. 10 (2001); Pulp Mills Case (Provisional Measures)(Argentinav. Uruguay) ICJ Reports 2006.56 Southern Bluefin Tuna (Provisional Measures), (1999) ITLOS Nos. 3&4,para. 79; Land Reclamation(Provisional Measures), (2003) ITLOS No. 12, para. 96.

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EIAs have been integrated in major development projects since

the early 1980s. In the planning history of Nepal, the Sixth Plan

(1980-'85), for the first time, recognized the need for EIA

integration for major infrastructure projects. In 1982, an

Environmental Impact Study Project was established under the

Department of Soil Conservation to develop necessary instruments

for the integration of EIA in infrastructure development projects.

The government of Nepal enunciated environment conservation related

policies in the Seventh Plan (1985-90). In order to enforce this

policy, and to make necessary arrangements, a series of guidelines

were developed incorporating the elements of environmental factors

right from the project formulation stage of development plans and

projects and to avoid or minimize adverse effects on the ecological

system. In addition, it has also emphasized to conduct EIAs of

industry, tourism, water resources, transportation, urbanization,

agriculture, forest and other developmental projects.

Although, EIA is one of the powerful tools to assess the

project on environmental grounds, the present practice of EIA

report preparation generally overlooks the impacts of macro-level

policy, plan and programs, and assessment of cumulative impacts.

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Because of delay in decision process, many stakeholders think that

EIA process is time-consuming and is not necessary.

Nepal has not introduced the concept of accrediting the

experts and consulting firms to prepare the EIA report. Any person

can prepare such report and hence, the quality of EIA report is

still doubt. Influence of non-professionals in developing and

enforcing the legal regime on EIAs and in preparing the EA report

prevail in many sectors. Because of this, the benefits of EA tool

have largely been boiled down to legal complication and the

effectiveness of this tool has been diluted in project planning and

implementation. Furthermore, many of the developers (which have

resulted in) consider that once the EIA report is approved,

environment is adequately managed. Furthermore, the agencies

responsible for environmental monitoring are not adequately

addressed with the importance of EIA study, so monitoring aspect is

totally neglected.

7.2 Suggestions

7.2 Recommendation

All possible impacts of the project activities caused

environmental stress which could be properly managed or mitigated

as per the nature, magnitude and duration of the impacts by

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adopting policy and legal instruments in EIA practices. The major

point to be highlighted in the policy and legal instruments towards

effective implementation of EIA system are:

Resource impact regarding change in forest, river and

freshwater ecosystem as well as from

changes in plant and animal habitats due to pollution

generated from project activities can be

measured through changes in the level of water and air

pollution resulting from project

activities.

For effective EIA implementation, international standards and

requirements of EIA is necessarily required.

Human interest impacts can be measured through change in the

economic activity due to deteriorating environmental condition

and through changes in the institution of a society. Any

scoring system can be incorporated all these aspects of

environment.

Furthermore, a broader consultation is required among the

professionals, government agencies and concerned stakeholders

towards the effective implementation EIA approach and review

of existing policy and legal instruments.

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Bibliography

COSTITUTION

Constitution of Kingdom of Nepal, 1990

Interim constitution of Nepal, 2063 BS

STATUTES AND ACTS69

Muluki Ain ,2020

Environmental Protection Act 1996 and Environmental

Protection Rules 1997

Private Forest Nationalization Act ,1956

Forest Act, 1993

Pasture Land Nationalization Act, 1974

PLAN/POLICIES

Fifth Plan (1975-1980).

Sixth Plan (1980-1985)

Seventh Plan (1986-1990)

Eighth Plan (1992-1997)

Ninth Plan (1997-2002)

Tenth Plan (2002-2007)

The industrial Policy 1992

The tourism Policy 1995

The National Solid Waste Management Policy, 1996

The Hydropower Policy 1992

The irrigation Policy 1993 (revision 1997)

National EIA guidelines 1993

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The Public Infrastructure (Build, Operate and Transfer)

policy 2000

The National Wetland Policy 2003

BOOKS

a) Principles of International Environmental Law, Philippe Sands,

2003

b) Perspectives on Environmental Impact Assessment, Brian de

clark

c) Manual of European environment of law, Alexander Kiss and Dinah

Shelton 2nd edition,

d) Handbook of Environmental Law, P.B. Sahasranaman,2009

e) Environmental Impact Assessment, process and practice, Batu

Krishna Uprety, December 2003

JOURNAL AND ARTICLES

http://www.icj-cij.org/docket/index.php?

pr=269&p1=3&p2=1&case=92&p3=6

http://www.unece.org/fileadmin/DAM/env/eia/documents/mop5/

Seminar_Boyle.pdf

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http://www.unece.org/fileadmin/DAM/env/eia/documents/mop5/

Seminar_Boyle.pdf

Nepal law review, Nepal law campus

Nyayadoot, Nepal Bar Association,Nepal

Nepal Kanoon Patrika etc.

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