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    12:31 PM Jasper Hayden Chan (LL.M. Oil, Gas and Mining Law Candidate (Nott Trent); LL.B. , Singapore Management University; Practice Trainee, KEL LLC)

    Towards A Clean, Green and Sustainable Environment: Lessons In The Use of Environmental Impact Assessments in Singapore

        

    Introduction

    Without a doubt, Singapore prides herself in being a clean and green garden city. As a mark of commitment to environmental issues, Singapore has acceded to and/or ratified several environment-related treaties.

    One of the more important treaties is the Convention on Biological Diversity (“CBD”). Singapore is 1 of the 196 parties to the CBD and as part of the CBD’s monitoring process, parties regularly submit national reports on their country’s adherence to obligations detailed in the CBD. 

    Article 14 of the CBD obliges each party “as far as possible and as appropriate” to “introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and where appropriate, allow for public participation in such procedures”.

    However, in Singapore’s last national report, little information could be found relating to Singapore’s adherence to Article 14 of the CBD – specifically on the use of environmental impact assessments (“EIAs”) for proposed projects (Singapore 5th National Report To The Convention On Biological Diversity 2010-2014). This article seeks to advance the case for a structured use of EIAs and to propose salient learning points should Singapore choose to statutorily mandate the use of EIAs.

    Environmental Impact Assessments – what for?

    As concisely explained in Hong Kong’s Environmental Impact Assessment Ordinance Guidance Note No. 1/2010, EIAs are needed as a “proactive planning and decision tool” for the “avoidance, pre-emption and prevention of adverse environmental consequences”. Essentially, EIAs try to prevent harm to the environment by embarking on a detailed impact study prior to the commencement of construction projects. Stakeholders can then alter or make certain decisions to mitigate harm to the environment once such harm has been highlighted in the EIA report.

    An example of this can be found in Singapore’s construction of the Cross Island Line. The Cross Island Line was proposed to be built near the Central Catchment Nature Reserve and in a diagram provided by the Land Transport Authority (“LTA”) in the Land Transport Masterplan 2013, it can be clearly seen that the Cross Island Line passes through a section of MacRitchie Reservoir in the proposed track alignment (Land Transport Authority website https://www.lta.gov.sg/content/dam/ltaweb/corp/PublicationsResearch/files/ReportNewsletter/LTMP2013Report.pdf> (accessed 6 May 2019)).

    Concerns were then raised by the Nature Society (Singapore) in a Position Paper detailing the potential harm that could be caused to the nature reserve if the Cross Island Line remained in its original proposed alignment (Nature Society Singapore, NSS Discussion & Position Paper – Cross Island Line (18 July 2013)).

    Two different track alignments were then floated by the LTA in response to the concerns raised. One option is the “skirting alignment” where the tracks will be built around MacRitchie Reservoir while the other option is the “direct alignment” where the tracks will cut through the reservoir (Land Transport Authority website (accessed 14 April 2019)).

    In order to assist the government in making an informed decision on the best track alignment, it was announced by LTA that an EIA will be conducted in the first quarter of 2014. An EIA was indeed done and the EIA report that was released provided the pros and cons for both alignments. As of the current date, LTA is still mulling over both options instead of having a decision being made on short notice and with ground knowledge in short supply – a small victory attributed to having an EIA report on hand prior to decisions being made about a construction project. (Land Transport Authority website https://www.lta.gov.sg/content/ltaweb/en/public-transport/projects/cross-island-line.html> (accessed 18 April 2019)).

    Further, mitigating measures have been put in place pending a decision by LTA about the track alignments. Besides implementing mitigating measures as recommended in the EIA report, LTA also implemented additional measures such as engaging an arborist to ensure minimal damage to trees and empowering NParks officers with the ability to issue immediate stop-work orders should there be pollution detected (Land Transport Authority website https://www.lta.gov.sg/apps/news/page.aspx?c=2&id=9e739684-b3c0-40b8-8e20-294274f3d35f> (accessed 18 April 2019)). 

    All of the above were made possible because an EIA was commissioned with its findings respected and relied upon.

    Review of the Current Laws & Relevant Examples of EIA use in Singapore

    It is the unfortunate and unsatisfactory state of law in Singapore that we have no statutorily enshrined need for private or public projects to have conducted an EIA prior to the commencement of the project.

    The closest piece of legislation connected with the use of EIAs can be found in s 36(1) of the Environmental Protection and Management Act (Cap 94A) (“EPMA”) where the Director-General may “require any person intending to carry out any activity that, in the opinion of the Director-General, is likely to cause substantial pollution of the environment…to carry out a study on environmental pollution control and related matter”.

    Otherwise, and drawing reference from the Hansard, Members of Parliament have found themselves raising questions about whether an EIA is necessary or had been conducted prior to the commencement of certain public works – see these non-exhaustive examples such as, Singapore Parliamentary Debates, Official Report (2 October 2017) Vol 94 (Mr Louis Ng Kok Kwang) on EIAs for land acquisition for expansion of Tengah Air Base, (20 July 2005) Vol 80 at col 999 (Dr Geh Min) on EIAs for land reclamation at Pulau Ular and (21 November 2005) Vol 80 at col 1820 on EIAs for Power Seraya Generators.

    In the current framework, it is up to the individual government ministries themselves to decide, in accordance with their own internal guidelines, whether an EIA should be conducted for certain public works and it is for the Director-General of Environmental Protection to exercise his/her discretion as to whether certain construction projects will require an EIA as per s 36(1) of the EPMA mentioned above.

    Further, even if an EIA had been conducted as per internal ministry guidelines, not all EIAs are uploaded online for the public’s information and review. There is no statutory requirement compelling government ministries or private developers and contractors to do so. In Singapore Parliamentary Debates, Official Report (29 February 2016) Vol 94 (Mr Leon Perera) on the release of environmental impact assessment report for Cross Island MRT Line, Mr Desmond Lee clarified saying “agencies will consider making these EIA reports in future projects more readily available online…” which seems to be an unsatisfactory state of events in the interest of transparency and accountability.

    Referring back to the CBD, in the same Article 14, public participation in EIAs is encouraged but if such assessments are not easily assessible for the public’s information and review, it will be hard for any form of public participation to take place. Allowing EIAs to be easily accessible online will be a step forward for Singapore in closer adherence to its obligations under the CBD.

    To Singapore’s credit, the first phase EIA report conducted for the construction of the Cross Island MRT Line was indeed uploaded online for the public’s information and review but it was observed by the local media that it was a “rare move” and was only done after feedback from the public. Initially, only physical copies were available for inspection by appointment (Neo Chai Chin, “LTA releases environmental impact assessment report on Cross Island MRT line” Today (19 February 2019)).

    Negative example?

    A negative example could be found in the project to reclaim Pulau Ubin and Chek Jawa – sites of environmental significance and home to unique flora and fauna of Singapore. In 1992, reclamation of Pulau Ubin and Chek Jawa was approved by Parliament with the long term plan to enlarge the island and to link it to mainland Singapore through the construction of tunnels or bridges.

    In 2000, Parliament approved a plan to carry out the reclamation works between 2000 and 2008. However, in 2001, the environmental significance of Chek Jawa was discovered by a group of botanists, marine biologists, research officers and members of the public.

    Belatedly, the Urban Redevelopment Authority (“URA”) claimed in 2001 that an EIA was done in 1995 to determine the impact of the reclamation on dugongs and sea grass in the Pulau Ubin area and concluded that there will be no significant impact. However, such a EIA report was not made known to the public prior to URA’s announcement and the terms of reference for the EIA were largely unknown (this episode was recounted in more detail at Joseph Chun, “Reclaiming The Public Trust In Singapore” (2005) 17 SAcLJ 717 at 718).

    It is quite clear that the public is largely reliant on the government’s internal guidelines (which they have no sight of) for any information regarding environmental protection and impacts by construction projects.

    In view of the points mentioned above, and adopting the angle of environmental protection, it can be seen that the law is currently wholly inadequate, internal guidelines are unclear and any form of public participation is minimal and infrequent.

    Drawing Inspiration – Hong Kong’s framework

    Hong Kong is an interesting case study for Singapore to learn from. There are obvious similarities between the two cities such as and not limited to, size, population density and legal history.

    Hong Kong’s EIA framework can be found in its Environmental Impact Assessment Ordinance (Cap. 499) (“EIAO”). Its framework is summarized here below.

    Firstly, proposed projects must check whether the nature of their construction works fall within the schedule of “designated projects” found in Schedules 2 and 3 of the EIAO.

    Secondly, once ascertained that the proposed projects are “designated projects”, the project planners will need to submit an application to the Director of Environmental Protection (“the Director”) for an environmental impact assessment study brief (“Study Brief”) before proceeding with the EIA. The Study Brief summarises the types of assessments to be conducted and the scope, technical details, and duration of the EIA. Within 14 days, the Director may request for further information or to notify the applicants of any defects in their application. Within 45 days, the Director will issue the project planners with the final Study Brief. These procedures can be found in Section 5 of the EIAO.

    The projects planners will then conduct the EIA in line with the requirements detailed in the Study Brief. After the completion of the EIA, it is submitted to the Director, who has 60 days under Section 6 of the EIAO to decide whether the EIA has met all necessary requirements as laid out in the Study Brief. Thereafter, the EIA will be open for the public’s scrutiny for 30 days. After taking into account public feedback, the EIA may be either approved or rejected.

    In the last stage and relying on the approved EIA as one of the factors under consideration, an environmental permit is granted and the construction project may then proceed. It can be seen that this legislative structure is a very robust one with ample opportunities for public participation and governmental oversight.

    Proposed Learning Points for Singapore

    The author here will not endeavour to reproduce a full legislative framework for Singapore but will highlight some learning points that Singapore can benefit from, if and when, Singapore decides to formulate and implement a full legislative framework for the use of EIAs.

    Firstly, the EIA legislation must be sufficiently robust with sufficient procedural hurdles and tight legislative drafting. As seen in the Hong Kong example above, it is perfectly acceptable to have numerous procedural hurdles as set out in the summary of Hong Kong’s legislative framework above as long as they are surmountable with proper due diligence being done. Schedules 2 and 3 of the EIAO which set out the list of “designated projects” requiring an EIA to be done are extremely detailed and comprehensive ranging from mere roads, utility pipelines to airports and mines. Descriptions about the types of projects that will require an EIA together with the interpretation clause spanned a lengthy 27 pages of the EIAO. Contrasting this with the EIA legislation in Mainland China, it has been observed that “only 3 to 5 percent of all construction projects are subject to rigorous environmental scrutiny…” which calls into question the effectiveness and comprehensiveness of the EIA legislation found there (Yuhong Zhao, “Assessing the Environmental Impact of Projects: A Critique of the EIA Legal Regime in China” (2009) 49 Nat. Resources J 485 at 495).

    Secondly, the EIA legislation must provide ample opportunities for public participation. In an analysis of methods to improve public participation in EIAs, 3 salient points were surfaced to ensure that public participation is meaningful – (i) public participation must occur prior to project planning; (ii) public participation should result in a project that is more suitable and is more accepted by the public; and (iii) there must be a dispute resolution process in place between the public and the authorities (Anne Shepherd, “Beyond the Requirements: Improving Public Participation in EIA” Journal of Environmental Planning and Management 1997; 40(6): 725-738, at 735).

    Public participation can come in different ways, including but not limited to, easy access to EIA reports, different feedback channels being made available, conducting of focus groups and a detailed report as to what feedback was received and the actions taken by the relevant parties. If no action was taken or if the feedback was rejected, the basis for such a decision should also be known for the sake of good order and accountability.

    Lastly, the EIA legislation must lay out the consequences of non-compliance and obstruction to enforcement. In the EIAO, sections 26 and 27 detail penalties such as fines and imprisonment sentences. More significantly, section 26(7) of the EIAO makes any contravention of the EIAO provisions a strict liability offence as “the prosecution does not have to prove that the acts or omissions in question were accompanies by any intention, knowledge or negligence…” thus giving teeth to the EIAO. For better effect, Singapore can consider going one step further and mandate for fines to be commensurate with the value of the construction project in the interest of fairness and deterrence value. It was observed that EIA legislation was usually not complied with in China as a maximum fine of 200,000 yuan was chump change for mega state projects (Yuhong Zhao, “Assessing the Environmental Impact of Projects: A Critique of the EIA Legal Regime in China” (2009) 49 Nat. Resources J 485 at 501).

    The above 3 points will be more suitably expounded in a separate article but essentially, these points will lead to a mutually accepted outcome between the public and the authorities and an increase in trust in the authorities as public participation is no longer just “window dressing” but an effective agent of change.

    Concluding Remarks

    Besides better protection for our environment, a transparent system with proper checks and balances that allows relevant stakeholders to have a say in future construction projects will contribute a long way in ensuring good governance and in building a fair and inclusive administration.

    In a state that abides by the rule of law, a related point that can be validly raised is the role of judicial review in checking such executive actions. This author will not venture further into the topic of judicial review in environmental issues which should be fully explored in a separate article but we must be fully cognisant of the fact that the launching of judicial review proceedings which takes time may be akin to shutting the stable door after the horse has bolted – the value of the EIA lies in being able to nip a potential problem in the bud and to prevent potentially irreversible harm from actually being caused to the environment.

    Lastly and separately, the 6th National Report for the CBD was supposedly due on 31 December 2018 with subsequent reports due in the future at regular intervals. It is hoped that Singapore will strive to be in closer adherence with the spirit and text of the CBD in future reports and we will too, become a model country with a model legislative regime for the other CBD parties.

    * The opinions contained in this article reflect the author’s own views and are not to be understood as reflecting the views of the author’s employers, colleagues or educational institutions.

    * This blog entry may be cited as Jasper Hayden Chan, “Towards a Clean, Green and Sustainable Environment: Lessons In The Use Of Environmental Impact Assessments in Singapore” (* May 2019) (http://www.singaporelawblog.sg/blog/article/234)

    * A PDF version of this entry may be downloaded here

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