ECOLOGY IN EIA PART III: THE NEW EIA ORDINANCE

SCOPE OF THE ORDINANCE

Projects listed in Schedules 2 and 3 are called designated projects. Whether or not a particular project is designated depends on its type, size and location; e.g. "reclamation works more than 5 ha in size" (or >1ha if <500 m from a Marine Park, SSSI, SCH, bathing beach etc.), "a marine borrow area", "a dredging operation exceeding 500,000 m3", "a fish culture zone more than 5 ha in size", "an outdoor golf course", "a residential development [of any size] ... within Deep Bay Buffer Zone 1 or 2", "all projects (with a long list of exceptions!) partly or wholly within an existing or proposed country park or special area, a conservation area, a marine park, an SSSI..." etc. This list is intended to exclude "minor or less problematic projects", but the Secretary for Planning, Environment and Lands (SPEL) can add or remove projects to the list by publishing an order in the Government Gazette.

Schedule 3 designates two types of very large projects which require an EIA at the "engineering feasibility study" stage, before final plans are made: urban development or redevelopment projects covering more than 20 ha or involving more than 100,000 people. This ensures that the environmental impact for very large projects, such as New Towns, is considered very early on. Separate ElAs will normally be required for each component of the project later.

THE APPLICATION PROCESS

Some planning a designated project, in either the public or private sector, must apply to the Director of Environmental Protection (at EPD) for an environmental impact study brief. The applicant does this by submitting a project profile which complies with the requirements in the technical memorandum (TM). The existence of this project profile must be advertised in the newspapers, and the public has two weeks to make comments. Then, within 45 days, the Director issues an EIA study brief which gives details of the EIA study required. The applicant next prepares an environmental impact assessment report (normally using consultants), in line with the study brief and technical memorandum, and submits it to the Director who, within 60 says, must decide if it meets the requirements of the study brief and TM or not. If not, the Director tells the applicant what else is required. If the report does meet the requirements of the brief and TM, the applicant must then make it available for public inspection free of charge for 30 days, and advertise its availability in a Chinese- and an English-language newspaper. Any member of the public may then send written comments to the Director. The Advisory Council on the Environment (ACE) is also sent a copy and has 60 days to make comments. Within 14 days of the expiry of the public inspection period (or of getting comments from ACE, whichever is later), the Director may request further information from the applicant to help in making a decision. Then, within 30 days, the Director must approve or reject the EIA report.

If the EIA report is approved, the Director will then decided whether or not to issue an Environmental Permit for the project, having regard to "the attainment and maintenance of an acceptable environmental quality" and "whether the environmental impact is likely to be prejudicial to the health or well being of people, flora, fauna or ecosystems". Note that the EIA Report may be accepted as accurate but the project rejected as too damaging to the environment. Note also that the decision is to be made on environmental grounds, unlike most countries (including the UK and The Netherlands), where the decision is a political one which may or may not reflect the results of the EIA.

CONDITIONS AND ENFORCEMENT

Normally, an Environmental Permit will include conditions. Possible conditions are listed in Schedule 4. These include things like the design, size, timing and construction method for the project; limits on the amounts of pollutants which can be discharged; limits on other environmental impacts; mitigation measures; monitoring programmes etc. Carrying out a designated project without an environmental permit, or in a way which is contrary to any condition; included in the permit, is illegal. The maximum penalty on a first conviction is a $2 million fine and six months' imprisonment; for second or subsequent convictions this rises to $5 million and two years' imprisonment. There is an additional fine of $10,000 a day as long as the offence continues. Note that these fines, although the biggest in Hong Kong law, are negligible for large projects, which are worth billions of dollars, but the prison sentences are likely to be an effective deterrent.

ACCESS TO INFORMATION

The EPD will keep a Register, which is open for public inspection (and will eventually be available on the Internet), and contains details of: project profiles; EIA study briefs; EIA Reports; decisions on the reports; applications for environmental permits; decisions on these applications. The whole process is intended to be as transparent as possible.

TECHNICAL MEMORANDUM

Most of the details of the new requirements are set out in the Technical Memorandum (TM), rather than the Ordinance itself. The precise legal status of the TM is a little vague: it is gazetted but it is not part of the Ordinance. Legco does not need to approve it but can repeal it (i.e. gives it "negative approval"). This is intended to make it easy to change. The TM sets out, among other things, the required contents of the project profile, the EIA study brief, and the EIA report. Annexes to the TM give detailed guidelines and criteria for assessing impacts on air quality, noise, water quality and sewage, waste management, ecology and, very briefly, landscape, visual and archaeological impacts. (Socioeconomic impact assessment is apparently not required.)

MAJOR DIFFERENCES FROM THE PRESENT SYSTEM

  1. The list of designated projects. This will probably mean fewer ElAs as small projects are now excluded unless they are in sensitive locations. However, it will also close the loopholes through which some private projects currently avoid ElAs.

  2. Currently, an "initial assessment report" is required for complex projects. This stage has been omitted in the new laws.

  3. Detailed guidance and criteria for the EIA are provided in the Technical Memorandum. This should help to standardize procedures and raise standards.

  4. All project profiles and EIA reports will be made public.

  5. The system of Environmental Permits allows enforcement of conditions. This is the major new feature of the Ordinance.

  6. There are formal provisions for appeal against all the key decisions of the Director of Environmental Protection.

PROBLEMS?

It is too easy to say how the new system will work in practice but some likely problems are as follows:

  1. The thresholds for a development to become a "designated project" are rather high. Many smaller, enviromnentally-damaging projects will, apparently, not require an EIA. SPEL can 'designate' a project which is not listed in the Schedules but I doubt this will be done often.

  2. The "one-step" EIA process, without an initial assessment report, does not allow modifications of the EIA requirements depending on initial findings. The scope, and, more importantly, the budget for the EIA will be determined before any work has been done, even for very complex projects. Schedule 3 requires a two-step process for very large urban development projects only.

Comments

Under the new EIA Ordinance, the Director of EPD, in deciding whether to grant or refuse an environmental permit for a project, "shall have regard to.. whether the environmental impact is or is likely to be prejudicial to the health or well being of people, flora, fauna or ecosystems". Nobody can complain that ecological impacts are given insufficient weight in the law! Indeed, one could make a good case (which I do not have space for here) that the new Ordinance is one of the best in the world from an ecological point of view. Even the Technical Memorandum, which provides the details, is not bad, despite many minor quibbles. So why aren't ecologists dancing in the streets? Apart from traffic, noise, air pollution and limited Terpsichorean ability, I think there are two major reasons.

The first is that we simply do not know enough about the ecology of Hong Kong to do what the Ordinance and TM ask of us - at least, not in the time we will be allowed. In places with a well-documented ecology, such as the U.K., the initial ecological survey consists largely of slotting habitats into a pre-existing classification in which each habitat type has a known conservation value. More detailed studies produce lists of species, most of which can be assigned to local, regional and global conservation categories. Major ecological processes and interactions can be identified by comparison with similar sites which have been the subject of long-term studies. In Hong Kong. in contrast, ecological assessment usually starts from scratch and the results must be evaluated in isolation, or by comparison with other short-term studies in somewhat similar habitats. Yes, the Biodiversity Survey will help! It will help a lot when it comes to assigning "significance" to species and sites. However, the Survey is, by definition superficial, and cannot be expected to substitute for the detailed, long-term studies which are needed to really understand any ecological community.

The second major reason why we are not dancing in the streets is that we - and this "we" includes everyone I have spoken to, from academia consultancy, Government or NGO - know that the Government's biodiversity arm, the AFD, lacks the experience and expertise to carry out its side of the bargain: quality control before the environmental permit is issued and enforcement afterwards. It is a huge responsibility and it rests and will continue to rest for the foreseeable future, on the shoulders of far too few people. Without quality control, consultants must compete on price, with obvious consequences. Without enforcement of the conditions in the environmental permit, the EIA becomes a mere academic exercise.

These are not the only problems by any means but most of the others are consequences of one or both of these. Solving the first will take only time. As an academic, it is my duty to make here the traditional plea for extra funding to .... etc. etc. However, what we need more than additional funding is better targeting of what funding there is. In practice, this means pointing graduate students at applicable projects: surveys of understudied groups of organisms, detailed studies of major habitat types, autecological studies of endangered species, research on key ecological processes. The idea that research should actually be useful is no longer as strange to examiners and journal referees as it was a few years ago!

Solving the second problem - the lack of experience and expertise on the government side - should be easier, although I am not hopeful that anything will be done. What is needed is a formal mechanism by which the Government can consult independent expert opinion on ecological Issues: an ecological advisory committee. Unlike ACE, this would be a scientific committee, which would provide advice on the adequacy of ecological ElAs, the significance of the species and habitats affected, and the feasibility of proposed mitigation measures.

RICHARD T. CORLETT
Dept. of Ecology & Biodiversity
University of Hong Kong

P.32-33

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