The Law on Environmental Protection (LEP) 2014 was passed by the 13th National Assembly at its 7th Session, replacing the LEP 2005. After 5 years of implementation, the LEP has contributed to creating positive changes in environmental protection. However, besides the achieved results, the implementation process showed that the LEP has revealed limitations, shortcomings and has not been adjusted in time with new challenges posed to environmental protection. In order to meet the new requirements, continue to institutionalize policies and views of the Communist Party and the State on environmental protection, the Draft LEP (revised) has been developed, supplemented and amended with many new points, in which the contents of environmental impact assessment (EIA) and environmental licenses (ELs) are among the progressive changes in administrative reform. The following are assessments of remaining issues related to the use of EIA tools and post-EIA procedures according to the investment project life cycle, analyzing the major changes in administrative reform in the Draft LEP (revised), which is being submitted to the competent authorities for consideration and decision.
Investment projects are considered according to their size, nature and level of impacts on the environment to require environmental procedures
Some inadequacies of EIA and ELs under the current regulations
For EIA: According to current regulations, there are too many types of projects that EIA must be implemented together with the same required levels of mandatory procedures to be carried out among objects with different characteristics of impacts on the environment. This is costly for businesses, especially in cases where projects have negligible environmental impacts but still have to carry out many environmental procedures because of belonging to the investment policy decision group of the National Assembly, Prime Minister (such as investment projects on education, culture, sports...); belonging to the group of projects with land use of nature reserves, national parks, historical - cultural relics, world heritage sites, biosphere reserves, and scenic places already ranked (projects of renovating historical areas; road, shed and camp construction works at administrative service areas or small-scale construction projects in buffer zones of conservation areas...).
In addition, some of investment projects that are likely to cause environmental pollution are still being implemented in densely populated areas with low load capacity of the environment, which has caused urgent environmental problems. Many major environmental pollution and environmental degradation incidents on a large scale and outbreaks of environmental hotspots due to waste discharge and landfill causing environmental pollution have occurred in many places, causing major economic, social and environmental consequences both in the short term and long term, affecting the production, life and health of the people, causing disturbance, security disorder and annoyance among the people. Current regulations also make businesses and management agencies not active in the process of investment review, allowing project implementation.
One of the causes of the above situation is the lack of national environmental protection planning and space planning into the following areas: areas where conservation and protection are needed, areas where environmental and ecological restoration is needed, areas where socio-economic development is prioritized. In addition, the consideration of approval decisions and EIA reports as “universal tools” is a basis for state management agencies to supervise, investigate, inspect enterprises during the operation period as it actually took place in the past time as unreasonable during the operation period, the environmental issues of the facilities may completely change from what was forecasted and proposed in EIA reports.
Regarding post-EIA administrative procedures: According to the current system of legal documents, procedures on investment policies, investment decisions, design assessment, construction licensing for construction investment projects are not closely associated with EIA activities, environmental confirmation and licensing leading to the fact that many production, business and service establishments have been put into operation but without environmental procedures carried out.
Currently, according to the current provisions of the LEP 2014 and some related laws such as the Law on Water Resources 2012, Law on Irrigation 2017, after EIA stage, project approval, before the project officially comes into operation, the project owners must carry out many administrative procedures in the field of environmental protection and other related fields, including: Confirmation of completion of environmental protection works; license for discharge of wastewater into water sources; license for gas emissions; certificate of eligibility for environmental protection in importing scrap as raw production materials; license for hazardous waste treatment; register book of hazardous waste generator; environmental protection plan; environmental management plan...
The simultaneous existence of many legal documents on post-EIA with the inconsistent contents of regulations, different regulations in different times and licensing agencies make it difficult for management agencies in the investigation and supervision of compliance with the regulations on environmental protection of organizations and individuals and also embarrass enterprises in the implementation process. In fact, there are cases that have the same content (monitoring program, required quality of wastewater after treatment), but between the decision on EIA approval, the confirmation of completion of environmental protection works and the license for discharge of wastewater into water sources there are different provisions. There are even cases where the decision on approval of the EIA report for the project allows the quality of the treated wastewater of grade B, when the project is constructed and put into operation, when applying for a license for discharge of wastewater into water sources it is required by state management agencies to have wastewater treated as of grade A; in EIA appraisal and approval process, it is not required to build an emergency response lake, however, when issuing a license for discharge of wastewater into the water sources, it is required to build an emergency response lake... causing a lot of difficulties, costs and obstacles for enterprises. Consequently, there have been works with approved EIA reports, confirmation of completion of environmental protection works that have been constructed, put into trial operation and operation, but not yet been granted license for discharge of wastewater into water sources. In many cases, the delay in the completion of licenses due to conflicts and obstacles arising from the documents of the state management agencies mentioned above causes large costs from contractor delay, making risks for investors because of being sanctioned for administrative violations in the field of environmental protection and water resources.
Meanwhile, in advanced countries around the world, management agencies do not use EIA reports as a management tool for operating facilities, but most use types of ELs associated with the environmental management plan of project owners to manage (such as the US, Japan, EU countries, Australia, China ..). Integrated Pollution Prevention and Control Directive (IPPC Directive) of EU, Japan…, all stipulates ELs to control the operation of the facilities during operation period.
For ELs: Currently, there are 2 methods of issuing ELs in the world: integrated ELs (currently applied in EU countries, OECD countries ...); many single ELs, each with its own environmental issues (being applied in the US, Australia, China ...). The application of an integrated or single license method depends on the legal system and the actual situation of each country, however, they ensure the principle of not overlapping, a specific object is not subject to both licensing methods. Following the current trend, some countries such as South Korea, are transitioning from a single license to an integrated license, especially for large-scale projects that have significant impacts on the environment. In some EU countries (Germany), ELs not only stipulate and permit for environmental issues, but also extend the regulations on construction requirements and conditions...
In Việt Nam, there are still some types of ELs under both the above mentioned licensing methods. The Law on Water Resources stipulates for license for discharge of wastewater into the water sources (as a single license form), while the LEP 2014 stipulates for confirmation of completion of environmental protection works (as an integrated license). The existence of both licensing methods leads to overlapping, contradictions in licensing content, arising procedures, causing annoyance for businesses.
Solutions in the Draft LEP (revised)
With the viewpoint, the policy of reducing the burden of administrative procedures, creating an open and favourable environment for projects while ensuring strict and effective management of environmental protection when the projects come into operation, the Draft LEP (revised) supplemented and amended provisions on EIA and environmental licensing in the direction specifically as follows:
Clearly define who must implement EIA and ELs on the basis of criteria on the environmental impact of investment projects considering the scale, nature and extent of impact on the environment that require environmental procedures in 4 groups of different investment projects (including: group 1 - must implement EIA, there is no need for ELs; group 2 - must implement EIA and must have ELs; group 3 - must not implement EIA but must have ELs, group 4 - no environmental procedures are required). The regulation of projects with little impact on the environment (groups 3 and 4) that do not have to implement EIA will reduce the cost of appraising EIA reports, creating favourable conditions for the projects soon to be implemented.
Regarding ELs, in order to ensure strict management and simplification of administrative procedures for enterprises, the Draft Law will consolidate, integrate existing ELs and the license for discharge of wastewater into water sources into ELs, including: Confirmation of completion of environmental protection works, license for discharge of wastewater into water sources; license for gas emissions; certificate of eligibility for environmental protection in importing scrap; license for hazardous waste treatment; register book of hazardous waste generator; environmental protection plan in accordance with the regulations in the field of environmental protection and some other related fields (Law on Irrigation, Law on Water Resources).
For projects that are subject to both EIA and ELs, the Draft Law stipulates that the administrative procedures for issuing ELs can be implemented before the projects go into trial operation of waste treatment facilities. For projects that are not subject to EIA, administrative procedures for issuing ELs are carried out before appraising the feasibility study report, basic design (or economic - technical report, construction drawing design for projects requiring only one step design) and before issuing construction license. This provision ensures clearly defined environmental requirements before an organization or individual carries out project emissions, and is also compatible with the construction regulations to avoid organizations and individuals those must implement administrative procedures to adjust construction licenses many times when they have to renovate and upgrade works to meet the emission and environmental protection requirements of environmental state management agencies if later issuing ELs.
According to the provisions of the Draft Law, all projects, production, business and service establishments generating wastes must have ELs, except for some cases such as agencies and schools; small-scale projects, production, business and service plans with little effects on the environment during the project implementation period without generating wastes or just generating conventional wastes in small quantities treated by on-site treatment facilities and equipment meeting the requirements of environmental technical regulations or generating domestic wastes managed under local regulations.
In order to create favourable conditions for organizations and individuals to implement administrative procedures for application of ELs, the Draft Law has designed two types of ELs, including: EL and Registration of environmental protection plan, depending on the scale of emissions, type of production, level of environmental pollution of the production, business and service projects, establishments. Corresponding to that, the procedures for issuing ELs, registration of environmental protection plan will also be stipulated according to 2 levels with different composition of documents, sequences, procedures, methods, conditional requests... In the Draft Law, these contents are currently in principle, which will be specified in the Government’s decrees. In addition, the Draft Law specifies the contents of the licensing authority, the contents of the licenses, the principles, the grounds for licensing, the rights and obligations of the license holders, the relationship between the ELs and other relevant environmental management tools (EIA), minimized administrative procedures with the EL policy, transitional provisions to ensure conformity, minimizing negative disturbance when issuing policies.
Overall assessment according to this orientation, ELs ensure 3 main roles: Being a tool to ensure necessary and sufficient conditions, allowing facilities before going into operation to comply with the requirements, conditions for preventing, reducing and eliminating pollution, including: Measures and facilities for waste collection, storage and treatment; Thresholds for generated wastes; Requirements for environmental monitoring and supervision; Being a tool that allows state management agencies to control and adjust the pollution load of wastes generated from production, business and service establishments in order to control pollutants, maintain and protect the objective of environmental quality; Being a basis for the state management agencies on environmental protection to supervise, investigate, inspect organizations and individuals in the course of project operation. With the 3 roles mentioned above, ELs are defined as documents issued by a competent state management agencies permitting project owners, production and business establishments to operate all or part of works, projects, production and business establishments with specific environmental protection requirements and conditions.
Thus, the classification of the 4 groups of investment projects mentioned above and the integration of different administrative procedures into ELs, the Draft LEP (revised) has strongly promoted administrative reform in dealing with administrative procedures for environment, contributing to cutting costs for businesses, promoting development but still ensuring control of environmental impact risks of investment projects, creating favourable conditions for development in accordance with functions and sensitivity levels, load capacity of the environment where investment projects are implemented.
- MONRE (2020), “Documents of LEP (revised)”.
- Lê Trình (2015), “How to improve the EIA quality in Việt Nam”? Website of Vietnam Association for Conservation of Nature and Environment.
- Mai Thế Toản (2016), “Current situation and recommendations to improve the EIA system in the process of reviewing investment projects”. Hà Nội, Environment Magazine No. 8/2016.
- Mai Thế Toản (2018), “Developing a legal framework at the level of laws, decrees and circulars on EIA” under the topic “Researching the status and proposing to complete the legal basis for EIA for investment projects, environmental control and supervision of operating production and business establishments. Developing technical guidelines for EIA for mineral extraction and steel production projects” under the science and technology program on climate change responses. Natural Resources and Environment Management, 2016-2020”, topic of MONRE, Code: Climate change/16 - 20.
- European Union, Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control). EUR-Lex website.
- OECD, (2007), “Guiding Principles of Effective Environmental Permitting System”. T OECD Website.
- South Korea, Act on the integrated control of pollutant-discharging facilities [Enforcement Date 28th. November 2017.] [Act No.15107, 28th. November 2017., Partial Amendmen.
Dr. Mai Thế Toản
Vietnam Environment Administration
(Nguồn: Bài đăng trên Tạp chí Môi trường số Chuyên đề Tiếng Anh I/2020)