1. Roundtable for ASEAN Chief Justices and Senior Judiciary on Environmental Law and Enforcement Session 6: ASEAN Environmental Law Challenge No. 4: Planning and Environmental Impact Assessment Introduction to the Issues Patricia Moore Wednesday 7 December 2011

2. Issues and Questions  Legal adequacy and best practice: To what degree is the national regulatory regime for EIA comprehensive and consistent with best practice in the field?  Procedural adequacy: What are the procedural requirements in the national regulatory regime for EIA and to what degree have they been at issue in cases that have reached the courts in each country?  Substantive adequacy: What are the substantive requirements in the national regulatory regime for EIA and to what degree have they been at issue in cases that have reached the courts in each country?

3. Procedural Adequacy Example – Xayaburi Dam  Procedures under the Mekong Agreement are not fully developed  Timing:  The feasibility study, dated 2008, was made available in February 2011  The EIA, dated August 2010, was made available in March 2011  Poyry review to be considered in early December 2011

4. Substantive Adequacy Example – Xayaburi Dam  Substantive review commissioned by WWF and carried out by the WorldFish Center with FAO participation  Substantive review carried out by the International Rivers Network Findings:  Technical information and analysis were missing  Transboundary and basin-wide impacts were not considered  Cumulative impacts were not considered  Assessment of impacts on fish biology were minimized  Mitigation measures proposed for fish species were based on experience outside the region with species not found in the Mekong  Proposed mitigation measures were not costed

5. Legal Adequacy & Best Practice ADB Safeguards Policy Statement Objectives:  avoid adverse impacts of projects on the environment and affected people, where possible;  when avoidance is not possible – minimize, mitigate, and/or compensate for adverse project impacts on the environment and affected people.

6. Legal Adequacy & Best Practice ADB Safeguards Policy Statement  Screen as early as possible  Use EIA to identify:  direct, indirect, cumulative, and induced impacts  risks to physical, biological, socioeconomic and physical cultural resources in the context of the project’s area of influence  transboundary and global impacts, including climate change  Use strategic environmental assessment where appropriate