1 Environmental impact assessment for public investment project in Vietnam : Regulations, practice, and practical issues Ph.D. Nguyen Khac Kinh Former Director General Environmental Impact Assessment and Appraisal Department Ministry of Natural Resources and Environment Vice President Vietnam Environmental Impact Assessment Group

Đánh giá tác động môi trường (ĐTM) was translated incorrectly in English as Environmental Impact Assessment (EIA) - actually it is environmental impact forecast. EIA was officially implemented in Vietnam according to the former laws on Environmental Protection (LEP) 1993 (effective from Jan 10,1994) and recent LEP in

Content 1. Overview of EIA 1.1. What is EIA ? 1.2. Function, task of EIA 1.3. Impacts of EIA 1.4. Position of EIA in socio-economic development process 1.5. Objectives of EIA 1.6. Benefits of EIA 2. Vietnam’s regulations on EIA 2.1. Regulation on EIA according to LEP Regulation on EIA according to Decree no 29/2011/NĐ-CP 2.3. Regulation on EIA according to Decree no 26/2011/TT-BTNMT (only focus on contents : individual implement EIA, appraisal and approval of EIA report of project) 3. EIA practice in the world and Vietnam 4. Some practical problems in the implementation of EIA in Vietnam 3

1. Overview of EIA 4

1.1. What is EIA ? General definition EIA is a process to identify, forecast positive and negative impacts of development plan to environment, on the basis of which to define measures to maintain, magnify positive impacts and prevent, minimize negative impacts in actual project implementation According to Vietnam LEP 2005 EIA is an analysis, forecast of the environmental impacts of specific investment project to define measures to protect environment when implementing that project 5

1.2. Function, task of EIA 1.3. Impacts of EIA 1.2. Function, task of EIA Scientifically, EIA only serves to forecast impacts of project to natural environment; it cannot forecast impacts on society and human health, whilst being incapable of forecasting economic impacts Impacts of EIA - Initial and significant role of EIA is to choose project’ location to fit with natural condition ( geography, geology, meteorology, hydrology…) and capacity of natural environment components (land, water, air, organism…) at expected place; - Next, to lay foundations to: provide possible measure to develop positive impacts and prevent, minimize negative impacts of project; proposing appropriate program, plan to manage, monitor environment when implementing project etc. 6

1.4. Position of EIA in socio-economic development process (1) Based on world experience 7 Projects Facilities (production, business, service) Strategic decision (CS, QH, CT) ESA EIA ET

1.4. Position of EIA in socio-economic development process(2 ) Based on Vietnam LPE Projects Facilities (production, business, service) Strategies, plans EIA based on article 18 EIA based on article 17

1.4. Position of EIA in socio-economic development process(3 ) Based on Vietnam LPE Investment projects Facilities (production, business, service) Strategic decisions (C,Q, K) ESA EIA CPE ???

1.5. Objectives of EIA 1.6. Benefits of EIA 1.5. Objectives of EIA First direct objective is enhance environment protection aspect (Pollution control and natural preserve) for project and then contribute to enhanced project sustainability during actual implementation process (contribution means: for project to be sustainable, beside the aspect of environment, during the decision process on project, we should consider socio aspects (by Socio impact assessment) and human health aspects (by health impact assessment) as well) 1.6.Benefits of EIA The guideline of “prevention being better than cure” and the international experiences for decades showed huge benefits of EIA. If there is no certain and necessary expenditure for EIA in the project preparation period to foresee negative impacts, especially adverse impacts, and readiness of preventive measure in the beginning, it will be costly to overcome the consequences made by negative impact. In some cases, it would be even impossible to overcome it even there is a lot of money. 10

2. Vietnam’s regulations on EIA 11

2.1. Regulation on EIA according to Vietnam’ law 2005 (1) Projects for which EIA report is compulsory: Article 18 of the Environmental Protection Law 2005 only stipulates some key groups and assigns the Government to specifies the list of projects Preparing EIA report According to Article 19 : - Project owner must prepare EIA report and submit it to authority state agencies for approval. - EIA report should be prepared concurrently with feasibility study report of project. - Project owner can hire consultant organization to prepare EIA report or prepare it by themselves and they are responsible for the data, results in report. - In case the project changes scale, contents, time to implement, complete project, project owner must explain to approval agencies; if necessary, they should prepare report of additional environmental impacts - Consultant organization preparing EIA report should be qualified in terms of professional staff, facilities - technical necessity. 12

2.1. Regulation on EIA according to Vietnam’ law 2005 (2) Content of EIA report According to Article 20, EIA report should have 9 basic contents On that basis, Circular 26/2011/TT-BTNMT have specified the structure and content at Appendix 2.5 (all current EIA report follow this Appendix) Appraisal form for EIA report Article 21 of Law stipulate 02 forms : : Appraised by Council ( given MORNE specify) Appraised by service organization ( given MORNE specify) Responsibility for organizing the appraisal According to Article 21 - MORNE appraises and approves EIA report for the projects which are approved by National Assembly, Government, Prime Minister; multi-sector, inter-provincial project; - Line ministries – for projects under their authority to approve (except inter-sector, inter-provincial project); - Provincial People’s committee – for projects at their area of management under provincial authority to approve. 13

2.1. Regulation on EIA according to Vietnam’ law 2005 (3) Approve EIA report According to Article 22 : - Agency's appraisal authority is in line with agency ‘s approval authority - Project is only approved, given investment license, implemented and brought into use after EIA report is approved (Note : Difference in Decree 21/2008 and Decree 29/2011!?). 14

2.2. Regulations on EIA according to Decree 29/2011/NĐ-CP (1) Decree no 29/2011/NĐ-CP on April 18, 2011 provides for strategic environmental assessment, environmental impact assessment, environmental protection commitments of 2 following decrees: - Decree no 80/2006/NĐ-CP on August 09, 2006 detailing and guiding the implementation of some articles of the Law on Environmental Protection ; - Decree No. 21/2008/ND-CP Feb 28, 2008 amending and supplementing a number of articles of Decree No. 80/2006/ND-CP Projects for which EIA report is compulsory: Detailing Article 18 of LEP 2005 by a list of 146 types of project ( Appendix II)- according to Decree 21 has 162 types of project Projects for which revised EIA report is compulsory: - Projects with changes in location; - Projects with no start in 36 months since EIA report was approved - Projects with changes in scale, capacity, technology to increase negative impacts; 15

2.2. Regulation on EIA according to Decree 29/2011/NĐ-CP (2) Timing of EIA report submission for appraisal and approval According to Clause 2 of Article 13: a) Projects on exploring, extracting mineral : Before issuing, amending license; b) Petroleum projects : Before issuing, amending exploration licenses, mining licenses. c) project has works which require construction permits: Prior to the issuance, adjustment of construction permit; d) Project is not belong to a, b, c: Before investment dicision (Note: As this is mostly after the project has identified locations - contrary to the principles of EIA, inappropriate with LEP 2005). 16

2.2. Regulation on EIA according to Decree 29/2011/NĐ-CP (3) Time limit for appraisal and approval of EIA report Time limit for appraisal : According to Clause 1 Article 20 : a) EIA report under MONRE’s authority: maximum of 45 working days, for complicated cases no more than 60 days ( for project under Appendix III) b) Project not under MONRE: maximum of 30 working days, for complicated cases no more than 45 days Time limit for approval : According to Clause 2 Article 20: maximum of 15 working days (time limit of appraisal and approval does not contain time when project owner complete EIA report profile) 17

2.3. Regulation on EIA according to Circular 26/2011/BTNMT (1) Individual must prepare EIA report : According to Clause 1, Article 10 : a) projects from item 1 to item 143 and item 145 ; Project may be named differently but the characteristics and scale are similar with item 1 to item 143 (Appendix II Decree 29). b) projects for renovating, expanding, upgrading and increasing the capacity of the production, business, service facilities which are operating, whose EIA reports are approved; register, confirm the commitment to protect environment and meet the environmental standards, approve or endorse the environmental protection scheme equivalent to from item 1 to item 143 (Appendix II Decree 29). (previously making additional EIA report, and additional commitment to protect environment) c) project in the groups stipulated by Clause 5, Article 35, Decree 29 (investment, production, business, service project change characteristic, scale similar to subject stipulated at Appendix II, Decree 29). 18

2.3. Regulation on EIA according to Circular 26/2011/BTNMT (2) proposal to appraise EIA report : According to Article 13 : - 01 proposing document (base on Appendix 2.3); - 07 EIA reports (cover, sub cover according to Appendix 3.4; Content according to Appendix 2.45) ( must sent more copies on request); - 01 copy of investment plan (feasibility study report); - For the case stipulated at Point b, Clause 1, Article 10 of this Circular, need to send 01 copy of EIA report approval decision or certificate of registration of environmental standard, approval decision or certificate of environmental protection scheme or certificate to prove commitment of environmental protection registered ( previously, no such rule). - For the case stipulated at Clause 1, Article 11 of this Circular (in the case of revising EIA report ), send one more copy of approval decision of previous EIA report of project (previously, no such rule). 19

2.3. Regulation on EIA according to Circular 26/2011/BTNMT (3) Making EIA report : According to Clause 1 Article 11 : 1. Project whose EIA report is approved but it has not been implemented should have EIA report prepared again in such cases : a) Change of location of project; b) No implementation in 36 months since EIA report approval ( previously was 24 months ) c) Increase scale, capacity or change technology to increase scope of impacts or increase negative impacts on environment caused by waste or increase waste volume or generate new waste, polluted waste components higher than calculated result, forecast in approved EIA report. 2. Project owner only implements changed content after EIA report is approved Structure and content of EIA report According to Appendix

3. EIA practice in Vietnam and World(1) World 1. Responsibilty to prepare EIA - Consider EIA as tool, making EIA report is a final step; - the process of EIA is quite long ( average years) and costly ( average mil. USD) 2. Steps to implement EIA - There are different steps, normally, 02 steps (Preliminary EIA, Detailed EIA) 3. Completion time for EIA - Before choosing location Vietnam 1. Responsibilty to prepare EIA - EIA is not considered as process, it is just making report - Average months - Average mil. VND 2. Steps to implement EIA - only 1 step is to detail EIA 3. Completion time for EIA - LPE 2005: Before Project is approved, given investment license, Built - Decree 29/2011: All most cases are after location chosen 21

3. EIA practice in Vietnam and World(2) World 4. EIA is considered as a tool to evaluate the impact to select project Except EIA, we should do : - SIA (Socio impact assessment ); - HIA (Health impact assessment ); - EcIA (Economic impact assessment - RA (Risk assessment ) 5. RA is considered as job need to be done in particular, cannot do concurrently with EIA - RA is a science different with EIA - RA’s result is an information input for EIA Vietnam 4. EIA is considered as “universal” tool replacing all most other tools Reality: It refers to aspects of economic, social, health, risk, incident - but very superficial, not clearly, so there are few substances of true meaning 5. RA is considered as a mission of EIA (result in EIA could not be done, finally nobody do- more risky ) 22

Analysis table, compare impact assessment tools” 23 Research subject ; (1) – Producer of impact (2) – Receiver of impact Research contentMain methodology EIA(1) – Content of project (2) – natural environment Project ‘s impacts on natural environment Environmental SIA(1) - Content of project (2) – Social issues Project ‘s impacts on socio issues Social HIA(1) - Content of project (2) –human health Issues Project ‘s impacts on human health Issues Health, gene EcIA(1)- Content of project- Economic issues (1)Project ‘s impact on economic issues economic

4. Some practical problems in implementing EIA in Vietnam 4.1. Fallacious understandings of the performance of EIA 4.2. Lack of necessary information for EIA 4.3.Lack of necessary environmental standard for EIA 4.4. Inadequate community participation in EIA 4.5. Unclear and inadequate financing mechanism for EIA 4.6. No EIA carried out integrated activities 4.7. No EIA carried out cross-border activities 24

4.1. Fallacious understandings on use of EIA (1) misunderstanding of use of EIA with other impact assessment tools beside impact on environment (nature), EIA can solve all the impact on social (use of SIA), human health (use of HIA), on economic (EcIA)- which is impossible; even EIA, SIA, HIA,EcIA are the impact assessment tools but subject, content an methodology are different (as compared and analyzed above), so cannot mess them up. Note: Note: - international community urged Vietnam to harmonize impact forecasting job for development project ( include EIA) following international practice and standard. - in 2005, Vietnam has sign Hanoi Core statement. Thus, Vietnam commit to implement concurrently 02 tools EIA and SIA for project. However, until now SIA tool was not stipulated at any law documents but it considered as mission of EIA. - the conflict on principle above is a barrier, difficulty for Vietnam in studying international experiences, exchange and cooperate on environment in general, on EIA in particular in the context of international integration. 25

4.1. Misunderstanding on use of EIA (2) Misunderstanding between EIA and RA Many people think that Risk Assessment –RA ( actually Risk forecast) is a mission of EIA. It is impossible, because RA is a science different from impact forecast science in general, and from EIA in particular. Note: in the world, RA is a task of project owner and one of an important contents of project (in Vietnam, it was the same many years ago, but, many people forget it unintentionally or on purpose). For instance: 1. Strong argument on possibility of risk incidents of broken red sludge reservoir of bauxite ore project at Highland at 01 meeting at the end of the Assembly session before 2. Debating about responsibility on risk, incidents of nuclear power generator at Ninh Thuan. 3. Debating about the incident cracked at hydropower dams Song Tranh 2, the natural explosion occurred around dam 26

4.2. Lack of necessary information on EIA EIA belongs to forecasting science. The major elements for forecasting are “ forecasting methodology” and “input information for forecast”, in which, “information” element is an important and key for selection methodology. “Impact assessment” requires 2 basic information sources : - information on producer of impacts ( culprit): content of project and - Information on receiver of impacts (victim): environment, capacity of environment. In reality : - information on “culprit” : according to law oninvestment, supporting documents on investment project for registration or licensing have simple content- with insufficient details to prepare detailed EIA according to LPE.. - information on “victim” : lack of information in regions of investment; or, if any, insufficient, unsynchronous, undetailed, lack of reliable necessary contenst (impossible for project owner to find, collect, survey by themselves to have information source – must be done and provided by State, while State did not do well because of environmental monitoring system does not meet the requirements set out). 27

4.3. Lack of necessary standard on EIA Norm, standard on environment are necessary to compare, evaluate the level of impact of project on environment; these impacts may be caused by waste, or elements which are not waste, but now : - there is only national technique standard ( NTS) on waste and quality of surrounding environment – this NTS only serves to evaluate impacts related to waste ( however NTS system on waste is not enough for EIA job currently); - there is totally no other NTS which is not related to waste, so types of impacts which is not related to waste do not have standard to compare, assess the magnitude of impact (e.g.: the loss, subsidence, slides, landslides, soil erosion, lowering of the water table, groundwater salinization, alkaline intrusion, loss of biodiversity, ecological balance security etc...) Consequence : Do not know whether the level of impact is going beyond standard,regulations or not, there can not be a basis for propose measures to minimize, eliminate the impact. 28

4.4.. Inadequate community participation in EIA Major purpose of community consultant is : - Improve the transparency of EIA; - Collect information which is not published - Explore local knowledge etc.… however, there are limitations in this job (partly because the LEP stipulates consultant local government ( People’s Committee) and representative of the population of the commune where project locates) Consequences : - Away from reality - Lack of necessary information - Ignore precious local knowledge - Some unnecessary reactions during the actual implementation 29

4.5. Unclear and inadequate financial mechanism for EIA There are no guidelines, regulations on cost for EIA job in general, and for preparing EIA report in particular ; In reality : - For domestic investment project : average mil. VND/ project ( in case of making EIA); mil. VND/project ( in case of preparing CBM report – a simple EIA form) - For international investment project : average mil. VND/project (need to prepare EIA report) Note : in most countries, the cost is higher, average mil. USD Consequences: - project from national budget does not plan funding for EIA; - situation of bidding, unfair competition, which cause confusion among the relevant agencies 30

4.6. Have not implemented synthetic EIA - Synthetic EIA means different projects in the same region - Previously EIA was done by individual project Consequences: - Have not seen the general picture on impact at region, thus there was not enough evidences to allow or reject investment project located in this region - Arrange additional investment project is not compatible with the absorptive capacity of the environment of a region, the risk of pollution, environmental degradation seriously later. 31

4.7. Have not implemented EIA cross-border Environmental impact is not dependent on the administrative border between countries, regions. So we need a mechanism to conduct cross-border environmental impact assessment with related countries and regions (according to the type of Espoo Convention for European countries) Consequences: - Do not see the whole of the scope, level and nature of the impact comes from each country, region and affect to related each country, each region, since it affects the sustainable development in each country, each region. - Complaint occurred among countries with no basis for resolution, sometimes affecting diplomatic relations (e.g. the case of Cambodia and Vietnam on hydropower projects). 32

Discussion question 1. In reality, for public investment project in Vietnam in general and in your local in particular, how did you pay attention to and use the EIA result? 2. As we know, to ensure feasibility and sustainability of public investment project, in reality, one important condition is to foresee negative impacts ( on environment, society, human health, economic…) as well as risk, the incident may be caused by project and feasibility solution to overcome negative impacts and risks ; hence, do you think that EIA reports of projects which are appraised have enough necessary information to consider content or not? If not, how to overcome it in future ? 3. As we know, environment constitute one of three key elements of sustainable development ( economic, social, environment), so the result of EIA only forms the basics to consider, appraise, and decide on public investment project; hence, in actual appraisal of public investment project, have you ever ignored or proposed to change the content on environment which you think it will NOT be feasible after calculate on economic and social aspects? 33

Thank you! Dr. Nguyễn Khắc Kinh Mobile phone : Tel.: (04)