03/04/2016
1. Decree’s rationale
It is evident that environmental violations have not only affected human health and properties of individuals and organizations but also caused serious environmental damage.
On 3 December 2010, the Government of Viet Nam issued Decree 113/2010/ND-CP on determining environmental damages. This Decree specifies responsibilities for requesting environmental damages and determining damages, providing important legal bases for requesting environmental compensation for natural environment, contributing to local funds for restoring and improving environmental conditions, mitigating negative impact on workers and peopling living near polluted areas.
After 4 years of implementation, Decree 113/2010/ND-CP has remained suitable. However, to comply with Law on Promulgating Regulations, Decree 113/2010/ND-CP needs to be replaced by a new decree with Law on Environmental Protection as a legal basis. Therefore, on 6 January 2015, the Government issued Decree 03/2015/ND-CP on determining environmental damages. The Decree takes effect from 1 March 2015.
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Decree on determining environmental damage is a legal basis for calculating, determining and requesting for compensation for natural environment damage |
2. Basic contents of Decree 03/2015/ND-CP
Basically, Decree 03/2015/ND-CP has inherited Decree 113/2010/ND-CP. It has 5 chapters, 15 articles and 4 annexes on responsibilities for requesting for environmental compensation and determining environmental damages. The Decree stipulates requirements for data collection and evidence to determine environmental damages in the following cases: water environment for conservation, recreation, daily life and production is polluted and seriously polluted; ecosystems belonging and not belonging to natural protected areas are degraded; and endangered species protected by the law are dead or injured.
The Decree excludes the following cases: natural disasters, force majeure, circumstances directed by competent authorities and other cases as regulated by law.
Determining damages and compensation for human health, life, property and legal benefits of organizations and individuals as results of pollution and environmental degradation are regulated under Civil Law.
Responsibilities for requesting environmental compensation and damage determination
Decree regulates that MONRE and people’s committees at different levels shall be responsible for requesting for natural environment compensation. More specifically, communal people’s committees shall be responsible for requesting for environmental damages under their jurisdiction. In this case, communal people’s committees shall propose district people’s committee to collect and appraise data and evidence to determine damage due to pollution and environmental degradation. District people’s committees shall be responsible for requesting compensation for pollution and environmental degradation in 2 and above 2 communes. Provincial people’s committees shall be responsible for requesting compensation for pollution and environmental degradation in 2 and above 2 districts and towns. MONRE shall be responsible for requesting compensation for pollution and environmental degradation in 2 and above 2 provinces and central cities.
The Decree regulates agencies responsible for collecting and verifying data and evidence for determining environmental damages. More specifically, district people’s committees responsible for collecting and verifying data and evidence for environmental damage within their jurisdiction. Provincial people’s committees shall be responsible for collecting and verifying data and evidence for determining environmental damage within their jurisdiction requesting compensation for pollution and environmental degradation in 2 and above 2 districts and towns. MONRE shall be responsible for collecting and verifying data and evidence for determining environmental damage in more than 2 provinces and central cities.
Data and evidence for determining environmental damage
The Decree specifies the following types of data and evidence of determining environmental damages
Data and evidence of determining organizations and individuals causing pollution and environmental degradation include waste sources and activities causing environmental accidents, directly impacting the environment or related to polluted or degraded areas. Basic information on organizations and individuals related to polluted and degraded areas includes operation and product types, technology, material input, production processes, waste, discharging points, waste treatment measures, environmental monitoring and data processing and data and evidence related to polluted and degraded areas.
Data and evidence of determining environmental damages in water and soil pollution cases include areas, volumes and weight of polluted water and soil; types of pollutants and pollutant concentrations in water and soil; decisions, permits and competent authority documents on use or use planning of environmental components in polluted and degraded areas.
Data and evidence of determining environmental damage for degraded ecosystems include areas of degraded ecosystems, levels of degradation, decisions and documents of competent authorities on levels of conservation of the natural ecosystems.
Data and evidence of determining environmental damages related to dead or injured endangered species include types of species, the number of injured or dead species, decisions and documents of competent authorities on the endangered species.
The Decree also specifies that data and evidence could be in the forms of pictures, digital tapes, monitored and analyzed data, remote sensing, GIS and other types. Data and evidence of determining environmental damage shall be collected and estimated at the time pollution and degradation happen at the maximum level or at the time pollution and degradation are detected.
The Decree stipulates procedures for collecting and verifying data and evidence of determining environmental damage. It specifies structure of data and evidence appraisal council. The council shall have no less than 30% of its members who are environmental specialists, or administrative managers; representatives of local governments where data and evidence are collected; representatives of community and other stakeholders.
Calculating damages and determining responsibilities of compensating for environmental damages
Environmental damages are calculated based on costs for dealing with pollution, degradation and restoring the polluted environment to achieve environmental technical regulations for water and soil environment; costs to restore ecosystems and endangered species to original or equivalent conditions. Determining environmental damages is based on data and evidence collected and following regulations appraised in the Decree. Environmental damages in a geographical area are a sum of damages of each environmental component in that area.
The Decree also stipulates principles for determining environmental damages. More specifically, the following principles shall be followed: pollution and degradation are determined in a geographical area due to waste sources or encroaching actions that occur in that area or do not occur in that area but have impact on that area; the existence of scientific based on relationships between pollutants originating from waste sources or encroaching action and degraded conditions; determining organizations and individuals causing pollution and degradation shall be in a timely and fair manner.
Organizations and individuals causing pollution and environmental degradation shall compensate for all damages and pay for the expenses of determining damages and follow procedures of requesting for damages of the agencies that have advanced the payment as regulated at Point 2 Article 9 of the Decree.
When more than 2 organizations and individuals cause pollution and environmental degradation, environmental damage liabilities, payment for fees of determining damages and procedures for requesting environmental compensation of each organization and individual shall be determined based on their pollution shares.
Organizations and individuals who comply with environmental regulations, have proper waste treatment systems and prove that they do not cause pollution and environmental degradation shall not be liable for environmental damages and related fees.
The Decree stipulates that after being deducted for fees of environmental damage determination and procedures, payment for environmental damages shall be used for pollution remediation and environmental restoration in polluted areas.
3. Conclusion
It is necessary to issue a decree on determining environmental damages. The Decree provides a legal basis for calculating and determining environmental damage and request for environmental compensation. To enforce this Decree, however, MONRE will need to develop specific guidance on procedures for environmental compensation; requesting records for environmental compensation, criteria of selecting monitoring organizations and their responsibilities in collecting data and evidence, costs for determining damages and procedures, cost units of pollution treatment for an area, volume of weight of polluted water and soil, cost units for rescuing and caring for an injured endangered species, and procedures and protocols for proving that concerned organizations and individuals not causing pollution.
MSc. Tran Mai Phuong
The Institute of Environmental Sciences
Vietnam Environment Administration
