There is widespread recognition that compliance monitoring and enforcement is a major weakness in the implementation of Environmental and Social Impact Assessment (EsIA) in both developed and developing countries. Exclusive focus on the adequacy of an EsIA document, or a one-time determination of “environmental feasibility,” leads to a failed approach to EsIA implementation. To realize positive outcomes from EsIA, it must be more than a one-time assessment of impacts and alternatives to inform sound decision making, engaging the public and other stakeholders in a transparent process. Integrating compliance and enforcement into the traditional framework for EsIA assures that EsIA delivers essential protections and benefits. Significant improvements in environmental governance are needed to achieve the environmental, social, and economic benefits of EsIA requirements. Proposed measures, i.e., to avoid, mitigate, and/or compensate for significant adverse impacts and to enhance beneficial impacts identified through the EsIA process, are more successfully implemented when treated as legally binding commitments. Consequences for failure to live up to those commitments must be sufficient to motivate and/or compel their realization. Further, when commitments are met and enforced, this builds public trust in the EsIA process, essential for new investment proposals to succeed. Less attention has been paid to the integrity of schemes used to screen for and apply an appropriate level of environmental (impact) review. Viewing EsIA through the lens of compliance and enforce ment means expanded attention to both the front and back end of the EsIA process. In too many circumstances, projects meeting criteria for full/rigorous environmental review are constructed without having gone through the required rigorous EsIA procedures. Further, if “screened out” of the full EsIA assessment process, there may be little to hold project proponents accountable for carrying out measures and plans offered to reduce adverse impacts below threshold levels. To secure the integrity of the entire process of graduated environmental (impact) review and prevent avoidable damage to sensitive resources, communities, and individuals, commitments made to avoid triggering requirements need to be enforceable and enforced just as they must be for those subject to the full EsIA process. The five principles identified in this document aim to fill these important gaps and deficiencies in our EsIA governance and implementation systems. EsIA is envisioned here as a full player in the environmental governance and regulatory scheme. This approach to EsIA implementation engages institutions at all levels of government to deliver the results expected after investing in EsIA. It includes a seamless handover to other institutions with the resources and authority needed to secure integrity and accountability for the desired results of the process over time, as well as their engagement early in the process. In many respects, the five principles are not new to practitioners. They integrate two frameworks that are already internationally accepted: the International Association for Impact Assessment (IAIA) environmental and social impact assessment framework, and the International Network for Environmental Compliance and Enforcement (INECE) principles of environmental compliance and enforcement. As a joint project of IAIA’s Governance and Implementation Systems Section and INECE, this document reflects professional consensus on best practices identified in webinars, conferences, and regional workshops hosted by these professional networks. When implemented, best practice for compliance and enforcement of EsIA complements important work done by IAIA on public engagement and general follow up for EsIA processes. In many respects, the compliance and enforcement focus of this paper is a subset of that work focused on their governance aspects. The five principles can be thought of as goals or elements of the EsIA process that require additional attention. The best practices are relatively new and evolving, and much more still needs to be done. However, there are sufficient examples of best practice for a range of contexts, that all countries and institutions with EsIA programs can find practical ways to make significant advances to get a return on the investment in environmental review. Implementing these reforms also can make EsIA more efficient, as well as more effective, although many require new investment and funding. Adequate funding and capacity for authorities with a role in this process is of course essential. In practice, budgetary limitations often hamper their work and the level of required cooperation and coordination. Ensuring adequate resources starts with a comprehensive review of the governmental bodies that have a role in the EsIA process, to understand the funds needed to fulfill these tasks. The authority tasked with review, for example, may not have the resources to mobilize the expertise needed across government agencies and levels of government to distinguish between good and deficient EsIAs and to monitor and secure compliance with commitments emanating from project-related decisions. It is essential to establish suitable mechanisms to raise and allocate funds that keep funding stable (i.e., rather than subject to political volatilities) and guard against vulnerability to corruption. A few caveats apply. This best practice document focuses on proposed projects, recognizing that EsIA also applies to decision making on proposed policies, plans, and programs. It also focuses on the types of commitments conducive to terms that are enforceable for compliance, for results to then be realized. It also does not address issues related to corruption, which of course undermine the entire EsIA regulatory scheme. Professional best practice respects differences among countries and organizations in their structure, institutions, relationships, instruments, procedures, and practices. Wherever possible, examples from different countries and institutions are identified in the document for reference. At one extreme, some countries and institutions treat the EsIA process as merely an information gathering exercise; at the other extreme, it might be the sole basis for the issuance of an environmental permit or business license. Finally, a note about the concept of compliance and enforcement. As introduced earlier in this document, compliance entails the full range of efforts to change behavior to achieve conformity with a legally binding “requirement.” Compliance concerns itself far more broadly than legal enforcement procedures and the imposition of sanctions. It includes both “carrots and sticks,” the full range of efforts to motivate compliance to change behavior, institutional relationships, and incentives and disincentives that stem from both transparency and consequences. It includes the development and access to compliance monitoring information, and empowering the public and other stakeholders to pursue accountability for the failure to meet legally binding commitments that follow from the EsIA process.

Environmental/Social Impact Assessment Compliance and Enforcement: Requirements, Commitments, and Related Permits

Resource Key: SUWG2ZPJ

Document Type: Report

Creator:

Author:

  • Cheryl Wasserman
  • Bobbi Schijf
  • Mara da Cunha
  • Cristian Perez
  • Gino Araya
  • Kay Bergamini
  • Philip Seeto
  • Erica van den Honert
  • Sebastian Elgueta
  • Matthew Baird
  • Yaw Amayaw-Osei

Creators Name: {mb_resource_zotero_creatorsname}

Place: Fargo, USA

Institution: IAIA

Date: June 2023

Language:

There is widespread recognition that compliance monitoring and enforcement is a major weakness in the implementation of Environmental and Social Impact Assessment (EsIA) in both developed and developing countries. Exclusive focus on the adequacy of an EsIA document, or a one-time determination of “environmental feasibility,” leads to a failed approach to EsIA implementation. To realize positive outcomes from EsIA, it must be more than a one-time assessment of impacts and alternatives to inform sound decision making, engaging the public and other stakeholders in a transparent process. Integrating compliance and enforcement into the traditional framework for EsIA assures that EsIA delivers essential protections and benefits. Significant improvements in environmental governance are needed to achieve the environmental, social, and economic benefits of EsIA requirements. Proposed measures, i.e., to avoid, mitigate, and/or compensate for significant adverse impacts and to enhance beneficial impacts identified through the EsIA process, are more successfully implemented when treated as legally binding commitments. Consequences for failure to live up to those commitments must be sufficient to motivate and/or compel their realization. Further, when commitments are met and enforced, this builds public trust in the EsIA process, essential for new investment proposals to succeed. Less attention has been paid to the integrity of schemes used to screen for and apply an appropriate level of environmental (impact) review. Viewing EsIA through the lens of compliance and enforce ment means expanded attention to both the front and back end of the EsIA process. In too many circumstances, projects meeting criteria for full/rigorous environmental review are constructed without having gone through the required rigorous EsIA procedures. Further, if “screened out” of the full EsIA assessment process, there may be little to hold project proponents accountable for carrying out measures and plans offered to reduce adverse impacts below threshold levels. To secure the integrity of the entire process of graduated environmental (impact) review and prevent avoidable damage to sensitive resources, communities, and individuals, commitments made to avoid triggering requirements need to be enforceable and enforced just as they must be for those subject to the full EsIA process. The five principles identified in this document aim to fill these important gaps and deficiencies in our EsIA governance and implementation systems. EsIA is envisioned here as a full player in the environmental governance and regulatory scheme. This approach to EsIA implementation engages institutions at all levels of government to deliver the results expected after investing in EsIA. It includes a seamless handover to other institutions with the resources and authority needed to secure integrity and accountability for the desired results of the process over time, as well as their engagement early in the process. In many respects, the five principles are not new to practitioners. They integrate two frameworks that are already internationally accepted: the International Association for Impact Assessment (IAIA) environmental and social impact assessment framework, and the International Network for Environmental Compliance and Enforcement (INECE) principles of environmental compliance and enforcement. As a joint project of IAIA’s Governance and Implementation Systems Section and INECE, this document reflects professional consensus on best practices identified in webinars, conferences, and regional workshops hosted by these professional networks. When implemented, best practice for compliance and enforcement of EsIA complements important work done by IAIA on public engagement and general follow up for EsIA processes. In many respects, the compliance and enforcement focus of this paper is a subset of that work focused on their governance aspects. The five principles can be thought of as goals or elements of the EsIA process that require additional attention. The best practices are relatively new and evolving, and much more still needs to be done. However, there are sufficient examples of best practice for a range of contexts, that all countries and institutions with EsIA programs can find practical ways to make significant advances to get a return on the investment in environmental review. Implementing these reforms also can make EsIA more efficient, as well as more effective, although many require new investment and funding. Adequate funding and capacity for authorities with a role in this process is of course essential. In practice, budgetary limitations often hamper their work and the level of required cooperation and coordination. Ensuring adequate resources starts with a comprehensive review of the governmental bodies that have a role in the EsIA process, to understand the funds needed to fulfill these tasks. The authority tasked with review, for example, may not have the resources to mobilize the expertise needed across government agencies and levels of government to distinguish between good and deficient EsIAs and to monitor and secure compliance with commitments emanating from project-related decisions. It is essential to establish suitable mechanisms to raise and allocate funds that keep funding stable (i.e., rather than subject to political volatilities) and guard against vulnerability to corruption. A few caveats apply. This best practice document focuses on proposed projects, recognizing that EsIA also applies to decision making on proposed policies, plans, and programs. It also focuses on the types of commitments conducive to terms that are enforceable for compliance, for results to then be realized. It also does not address issues related to corruption, which of course undermine the entire EsIA regulatory scheme. Professional best practice respects differences among countries and organizations in their structure, institutions, relationships, instruments, procedures, and practices. Wherever possible, examples from different countries and institutions are identified in the document for reference. At one extreme, some countries and institutions treat the EsIA process as merely an information gathering exercise; at the other extreme, it might be the sole basis for the issuance of an environmental permit or business license. Finally, a note about the concept of compliance and enforcement. As introduced earlier in this document, compliance entails the full range of efforts to change behavior to achieve conformity with a legally binding “requirement.” Compliance concerns itself far more broadly than legal enforcement procedures and the imposition of sanctions. It includes both “carrots and sticks,” the full range of efforts to motivate compliance to change behavior, institutional relationships, and incentives and disincentives that stem from both transparency and consequences. It includes the development and access to compliance monitoring information, and empowering the public and other stakeholders to pursue accountability for the failure to meet legally binding commitments that follow from the EsIA process.

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