Who is responsible for the non-compliance of the terms to prepare an EIA report?

Dear friends,

India’s Ministry of Environment, Forests and Climate Change (MoEFCC) has issued an interesting order debarring an consultant who carried out an Environment Impact Assessment (EIA) contrary to the Terms of Reference (ToR) issued to them. In this order the ministry has held it was the responsibility of the consultant to advise the project proponent not to prepare an EIA for 13 activities related to the project. Rather stick to the three components for which the ToR has been issued.

This is the first time that the MoEFCC has issued an order of this nature and that too almost four years after the ToR was issued and two and half years after the public hearing took place. @bharatpatel @vimalkalavadiya @manjumenon and @kanchikohli had in different ways contributed to the critique of the EIA in question and the submission at the public hearing back in November-December 2013. The issue of doing a joint EIA of many components as well as abiding by the law which requires separate EIAs for different components of an integrated projects were all part of this submission. Some reading on this here and here.

What is interesting is that the Ministry has sought to take action against the EIA consultant and not reject the application in its totality. The ToR for EIA is issued not in the name of the consultant but the project proponent, which was the case with the present project as well. India’s EIA notification has a clause which says that providing false and misleading data in an EIA can make the application itself liable for rejection.

We are yet to get more details of what is the current status of the project’s environment clearance application. But one is also interested to know what is the current practice in different countries related to non-compliance with the ToR for the preparation of an EIA? Are there any other instances where action is taken either against the consultant or the ToR for an EIA?

Look forward to hearing from you all. @ginococchiaro @shalomndiku @johanesjenito any thoughts?

Kanchi

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In Indonesia, the consultants is preparing the environmental impact analysis of a business or activities of project proponent. When the problem arises to un-qualification requirements, it can be traced by the article 30 of Government Regulation Number 27/1999 on Environment Impact Assessment (EIA) and any other regulations on consultant’s duty

The consultant was partly responsible for all the data that is made. The responsibility of the EIA consultants to third parties or the public, as stated in Article 33 of Government Regulation Number. 27/1999, confirms project proponent’s obligation has to announce on public. Any advice, opinion, public input is required to be reviewed and considered in the EIA.

The final EIA docs consist four primary docs. They are the assessment of TOR, environmental impact analysis, environmental management plan and environmental monitoring plan.

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Very interesting Kanchi. On our side, while we have not tested the ToR provision under Kenyan laws, the EIA regulations [Reg. 11(1)] state that:

“An environmental impact assessment shall be carried out in accordance with the terms of reference developed during the scoping exercise by the proponent and approved by the Authority.”

So from this, we see that it’s mandatory for the process to follow or be aligned with the ToRs - failure to do so would result in a violation of the law.

As to who the Authority would follow up with this in the event of deviating from the ToRs, it would likely be the proponent. However, action can be taken against EIA consultants/experts if they deviate from a code of practice. While no direct clause in the code touches on this issues, a reading of Clause 11(1) may be seen to uphold them to certain standards, guided by the ToRs"

“An Environmental Assessment Expert shall, based on the Terms of Reference, include all matters as required, by relevant statutory provisions, before submitting such reports to the project proponent or operator.”

We can definitely look into it more and keep you posted!

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thanks @shalomndiku, will look forward to more details, discussing this further, and testing it out in Kenya.

best wishes K