The Legal and Regulatory Framework for Environmental Impact Assessments
| Author | Mohammed A. Bekhechi, Jean-Roger Mercier |
| Profession | Senior Counsel, Lead Environmental Assessment Specialist |
The Legal and Regulatory Framework for Environmental Impact Assessments is intended to inform the discussion about the state of environmental laws and policies in Sub-Saharan African countries. It may also serve for comparative purposes with respect to environmental laws in the rest of the African continent and other regions of the world. In particular, now that many African countries are moving decisively ahead with their own sustainable development agendas and are devising new environmental protection-oriented laws and regulations, this text can be used to assess where these countries stand in the development of their legal and regulatory frameworks and what still needs to be accomplished.
It is a remarkable fact that during the 1990s practically half of the countries in Sub-Saharan Africa developed legislation on environmental impact assessment (EIA). This is a first and indispensable step towards much needed capacity building in these countries. The ability to have in-country EIA review and compliance monitoring is key to the environmental and social sustainability of the new types of development activities that are now being carried out, whether funded by the World Bank or by other sources, both at the local level (community-driven development) and at the national level (budget support operations).
In fact, environmental impact assessment remains the basic planning, information sharing, and community empowering tool for sustainable development activities and projects. The lack of a sound legal framework to define the EIA's content, procedures and sanctions greatly reduces its effectiveness. Time and again we observe that in spite of greatly increased environmental awareness, it is much more difficult to implement progressive policies for dealing with natural resource use and depletion, waste emission, ecosystem pollution, etc. if there are no good, enforceable environmental laws and regulations.A sound legal framework for environmental impact assessment is a powerful instrument to improve environmental performance.
The Legal and Regulatory Framework for Environmental Impact Assessments, the joint product of an environmental specialist formerly with the World Bank's Africa Regional Vice Presidency and an environmental lawyer from the Environmentally and Socially Sustainable Development and International Law Group in the Legal Vice Presidency, provides an overview of the development of environmental impact assessment-related laws and regulations in Sub-Saharan African countries. It analyzes issues of substance as well as of procedure, and highlights such important aspects as public participation and consultation, the relationships between government agencies and civil society, and compliance and monitoring mechanisms. Through this comprehensive treatment, the text provides a profound reflection on the role and function of law and regulation for sustainable development.
Ko-Yung Tung ,Vice President and General Counsel
Kristalina Georgieva,Director, Environment Department
Mohammed A. Bekhechi Senior Counsel
Jean-Roger Mercier
Gone are the days when environmental impact assessments (EIAs) were carried out only when they were imposed by donors of development assistance and there was no legal basis for their routine preparation, implementation, and monitoring in Sub-Saharan African countries.
Welcome to a rapidly modernizing continent where exactly half of the countries have instituted their own rules and requirements and the remaining half are making great progress in the same direction. EIAs have been established as a standard requirement in 24 countries in Sub-Saharan Africa. This publication provides a review and evaluation of the current status of environmental impact assessment legislation in these countries and a comparative methodology to assess the legal and regulatory framework applicable to EIA.
The text is based on an in-depth analysis of the relevant legislation. Because each country has established the legal basis for EIAs in an isolated way, the number of laws, statutes, and regulations differ significantly from one country to the other. These laws, statutes, and regulations are relatively recent-in the vast majority of cases, the laws were published during the last decade. SSA countries have copied their basic principles and rules from well-established EIA systems in developed countries, although trends in international environmental law also have influenced the domestic legal and regulatory framework and process. The development of the EIA-related legal and regulatory framework illustrates the fact that EIA is now considered a major tool and process in environmental planning and management in SSA countries.
The text focuses on and reviews specific aspects of the EIA system, including: (a) the definition of EIA in SSA laws, statutes, and regulations; (b) the prescribed activities, public participation, and consultation; (c) the review process and the quality of EIA reports; (d) monitoring and enforcement; (e)compatibility with international norms; and (f) transboundary issues.
Environmental impact assessment of major development projects is now reasonably well established in all the selected SSA countries. The establishment of environmental management units in governmental agencies, sometimes at both the national and local levels, and growing awareness within civil society has helped to promote the application of EIAs in these projects, especially in urban and sensitive areas. Many SSA countries have also adopted a combined strategy of awareness raising and gradual strengthening of the enforcement of EIA legislation.
However, EIA systems in SSA countries are far from being stable and easily enforceable. Many SSA countries have already changed their EIA legal and regulatory frameworks over the last few years. For example, Madagascar enacted its first EIA-related legislation on October 21, 1992 (Decree 92-926), which was subsequently reviewed and updated in 1995 and 1996. Nonetheless, in almost all SSA countries implementation and enforcement of EIA-related laws, statutes, and regulations are still hampered by a lack of clarity, technical and human capacities, and financial resources. However, as the study shows, the current legal and regulatory frameworks provide the potential for significant further development and improvement.
The Legal and Regulatory Framework for Environmental Impact Assessments shows that there is a clear need to strengthen the current legal and regulatory framework of EIA in the selected SSA countries, including: (a) the further development of guidelines to be used by project development proponents to facilitate the implementation of EIA laws, statutes, and regulations; (b) the strengthening of public participation in the EIA process and access to EIA reports; (c) a more concise definition of the obligation to provide environmental management plans; (d) implementation monitoring and environmental auditing; (e) the assessment of transboundary and global impacts; and (f) the strengthening of the capacity of governments and courts to help enforce EIA requirements. SSA countries with no EIA requirements should be given strong incentives to integrate EIA into their legal framework by making them a factor in accessing foreign investment.
This study should be considered a work in progress that will be updated as more information from SSA countries becomes available and can be used to compare the evolution of EIA-related legal frameworks in SSA countries with
EA Environmental Assessment
EIA Environmental Impact Assessment
EPA Environmental Protection Agency (USA)
IGADE Inter-Governmental Authority for Development
IUCN The World Conservation Union
NEPA National Environmental Protection Act (USA)
OECD Organization for Economic Cooperation and Development
SSA Sub-Saharan Africa
SADC Southern Africa Development Community
UNCED United Nations Conference on Environment and Development
UNCLOS United Nations Convention on the Law of the Sea
UNEP United Nations Environment Program
UNFCC United Nations Framework Convention for Climate Change
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Laws and regulations suited to country-specific conditions are among the most important instruments for transforming environment and development policies into...
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