The Environmental Impact Assessment Ordinance: Two Decades, no Change

The Environmental Impact Assessment Ordinance (“EIAO”) was enacted 21 years ago, on 1 April 1998. It imposed a new mandatory procedure for the assessment of the foreseeable environmental impacts and risks caused by large development projects, for instance transportation infrastructure, land reclamation and industrial facilities. The procedure includes the publication of a comprehensive expert study on the potential impacts of a project and ways to mitigate them. It also involves public consultations where, in principle, anyone could have a say on whether and how the project should be allowed to carry on.

Hopes

About two decades ago, the EIAO injected new hopes for a democratic decision-making process in relation to large development projects. In his 1997 Policy Address, Chief Executive Tung Chee-Hwa presented this new piece of legislation as an essential step to “ensure that consideration of how to sustain and enhance the environment is built into strategic planning and policy making.” He announced an intention to “involve the whole community in learning and discussing what that means for us and for the way we do business.” This new piece of legislation also injected new hopes for effective environmental protection. Although the EIAO only imposes a procedure, it does make decisions detrimental to the environment more obvious and, hence, less likely. Twenty years ago, the adoption of the EIAO brought Hong Kong on a par with the best practice of Western nations, well before other Asian jurisdictions took similar steps. All flagship development projects carried out in Hong Kong in the last 20 years have gone through this statutory procedure, from the extension of the MTR network, all the way to the Airport’s third runway and the Hong Kong-Zhuhai-Macao bridge-tunnel project. In many cases, public scrutiny ensured a fair balance of environmental concerns with economic and social interests.

Yet, with time and practice, some imperfections have appeared in the EIA framework. Firstly, as the procedural requirement only applies to “designated projects” listed in the schedule to the EIAO, some projects that are also likely to have detrimental impacts do not undergo an EIA. For instance, the felling of trees or plants of precious or endangered species or otherwise of particular historical or aesthetic value does not require the conduct of an EIA – not even when the government has registered these trees as old and valuable. Secondly, for lack of appropriate scoping, EIA reports routinely exceed a thousand pages, with lengthy discussions of environmental impacts which are not likely to be significant. Thirdly, public participation remains rather limited. While experts nominated by the Government as members of the Advisory Council on the Environment (“ACE”) have 60 days to inspect and comment on the EIA report, the general public only has 30 days. This was designed to allow the ACE to review public comments before submitting its report to the Director of Environmental Protection (“DEP”), thus creating in fact a filter between the public and the DEP. Overall, EIAs are carried out at an advanced stage of the project development cycle, where substantial variations or alterations of the project are strongly opposed by project proponents. More fundamental strategic decisions, for instance sectorial planning, do not undergo any mandatory impact assessment under Hong Kong law.

Lethargy

Meanwhile, the Government’s original enthusiasm for a mandatory assessment of environmental impacts has winded up. Over two decades, the Government has made no substantial amendment to the EIAO or to its related regulations (not only to the table of fees). Nor has the Technical Memorandum, which determines among others the impacts to be assessed and the applicable methodologies, undergone any revision in the last two decades. This lethargy contrasts sharply with the fast-paced evolution of similar legal frameworks elsewhere in the world.

For instance, the European Union (EU)’s law on EIA has undergone three complete overhauls and many more major amendments since 1985. Closer to home, Chinese EIA Law of 2002 was revised in 2016 and 2018, while the Ministry of Ecology and Environment issued and updated numerous additional regulations to facilitate and improve its implementation. Like in the EU, these successive revisions addressed shortcomings revealed through implementation, leading to procedural frameworks that are less cumbersome and more effective in protecting the environment.

Thus, in 2001, the EU adopted a mandatory Strategic Environmental Assessment (“SEA”) – a procedure through which the environmental impacts of plans, programmes, and policies are to be assessed before projects are developed. A similar procedure, embedded in the Chinese EIA Law of 2002, was strengthened by an Administrative Regulation adopted by the State Council in 2009. About half of the world followed, including virtually all high-income jurisdictions, with the exception of Hong Kong. While the government established an informal policy of conducting some impact assessment and public consultations before taking certain decisions, it did not enter into any legal obligation to do so or to implement any desirable alterations identified during the process. The existing practice does not guarantee a comprehensive study or public consultations, nor does it provide any grounds for judicial review if the usual procedure is not respected. As such, Hong Kong citizens are not recognised any legal entitlement to be listed to in relation to the government’s general orientations which, inevitably, will affect their lives. Regularly, new strategic orientations are announced without any form of transparent assessment or consultation.

New Environmental Impacts

Overall, the Hong Kong EIA process is restricted to a list of potential impacts that is out of date. The Technical Memorandum of September 1997 expands on impacts such as air quality, water pollution and waste, but it does not mention climate change, energy efficiency or light pollution. This contrasts sharply with advance in EIA practice overseas. Climate change, for instance, is now fully integrated in EIA law and practice in most countries. In recent years, the EU Commission and the US environmental protection agencies developed methodologies for accounting for greenhouse gas (GHG) emissions in EIAs. By 2017, all EU Member States were formally required to integrate the consideration for the impact of GHG emissions in their EIA procedures. In recent years, about 20 percent of Chinese EIA reports assess the project’s impact on GHG emissions. Courts in Austria, Australia, Canada, South Africa, the UK and the US, among others, have imposed the integration of such consideration in EIA procedures relating to projects that imply massive GHG emissions. Most recently, in February 2019, the Land and Environmental Court of New South Wales stopped the development of the Rocky Hill mine on the ground that the combustion of the coal extracted from this mine would have a disproportionate impact on the global environment; in March, the D.C. Federal Court blocked oil and gas lease sales in Wyoming on the ground that the authorities had failed to consider the impact of the project on climate change.

As Hong Kong has committed to taking steps to mitigate climate change, EIAs could provide an opportunity to do so. Careful consideration at the project level could allow for significant reductions in GHG emissions during a project’s life, for instance promoting more efficient standards on power plants and other industrial developments is an essential tool to avoid perpetuating a “carbon lock-in.” Considerations for adaptation to climate change could also be mainstreamed in EIAs, thus ensuring that projects are able to withstand foreseeable impacts of climate change (eg heatwaves, sea-level rise, more intense typhoons) during their lifespan. Such considerations for climate change mitigation and adaptation would also be relevant within SEAs as a way to mainstream climate change considerations in long-term plans and programmes, for instance on energy production, transportation or urban planning.

Absent a legal requirement, some project proponents have nevertheless sought to assess the impact of their projects on climate change on a voluntary basis. For instance, a study conducted by the HK Airport Authority in December 2014 concluded that the operation of a third runway would increase greenhouse gas emissions by 7 million tonnes of carbon dioxide per year from 2030 onwards (taking into account full landing and take-off operations and full cruise for departing flights, but not full cruise for landing flights). This alone will cancel two thirds of the reduction in greenhouse gas emissions pledged by the Hong Kong Government under the Hong Kong Climate Action Plan 2030+ (which does not apply to the aviation sector). No effort should have been spared to try and reduce the massive impact that the airport extension project will have on Hong Kong’s GHG emissions in the decades to come. Instead, the Airport Authority has only released a 10-page summary of the study, and no mention was made of GHG emissions during the entire EIA process that followed.

A Much-Needed Overhaul

Time has long come for an overhaul of the EIAO. A reform could extend the impact assessment procedure from projects to plans, programmes and policies, thus formalising the current practice of the government in a transparent statutory framework. This reform could review the project screening procedure to ensure that any project likely to cause significant environmental impacts undergoes an EIA process, whether or not it is part of a list of “designated projects.” The reform could ensure that all relevant impacts are accounted for, including climate change, energy consumption and light pollution, and that efforts are made to reduce these impacts whenever they are significant, while the impacts which clearly are not significant in a particular project would not need to be documented at length. A reform could make public participation more effective by increasing the time available for the public to read, understand and comment on the EIA reports.

Deputy Director of Environmental Protection Department Elvis Au, the father of the EIAO, has described it as a “living instrument.” But one would be hard-pressed to identify a living organism which remained almost entirely motionless over two decades, while so much was changing around it. Living instruments adapt, and so should the EIAO. 

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Faculty of Law, The Chinese University of Hong Kong

Prof. Benoit Mayer is Assistant Professor at the Faculty of Law of the Chinese University of Hong Kong. He teaches climate, environmental and international law, and is the author of The International Law on Climate Change (Cambridge University Press, 2018).

Faculty of Law, The Chinese University of Hong Kong

WU Lan is a student in the Masters of Laws in Energy and Environmental Law Programme at the Chinese University of Hong Kong.