Evaluación de la calidad metodológica y riesgo de sesgo

Literature Review

In the book, “Introduction to Environmental Impact Assessment” 3rd edition by J. Glasson, R. Therivel and A. Chadwick a detailed description of each step of EIA process is given and the procedure is explained

96 Lee and George (eds), Environmental Assessment in Developing and Transitional Countries; Principles, Methods and Practices (n41), 35.

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systematically. Diagrams in the book make the ideas and thoughts more precise. The description of environmental Impact Assessment steps and their explanations are valuable findings for this research work. The definitions presented by the authors in the book make the picture of EIA process clear and accurate. These steps are required necessary steps for all jurisdictions dealing with environmental impact assessment process.

‘Project screening- narrows the application of EIA to those projects that may have significant environmental impacts. Screening may be partly determined by the EIA regulations operating in the country at the time of assessment.’⁹⁷ The next step that follows the screening is scoping which ‘…

seeks to identify at an early stage, from all of a project’s possible impacts and from all the alternatives that could be addressed, those that are crucial, significant issues.’⁹⁸

The current research on environmental impact assessment process in different jurisdictions made clear that presenting alternatives during a development project proposal is one of the most required steps. This step gives a chance to the developers and authorities to mitigate significance of the impact, find a best possible solution, demonstrate the ability of considering alternatives and controlling the process of decision-making and leaves a possibility for a developer to carry on the project in case the significance of the proposed project is established. The idea is to implement precautionary principle and thereby prevent significant harms on the environment. This is highlighted in the work of Glasson at al. too. ‘The consideration of alternatives seeks to ensure that the proponent has considered other feasible approaches, including alternative project locations, scales, processes, operating conditions and the “no-action” option.’⁹⁹ Authors believe that environmental impact assessment is an aid to decision-making process despite the developers’ assumption that EIA hinders the project’s progress. It can be an effective negotiation between ‘the developer,

97Glasson, Therivel and Chadwick, Introduction to Environemntal Impact Assessment (n26), 5.

98 Ibid.

99Ibid.

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public interest groups and the planning regulator.’¹⁰⁰ This means, the developer has to consider that due to the significance of the proposed project the extreme alternative might be even non-implementation of the development project; however, the possibility of alternatives sought in the process might support to follow up with the precautionary principle and not harming attitude. The well-developed mutual communication from the beginning saves time both for the developer and for the interested public as well.

Another argument that is relevant to the ideas of this research work is that the harmed and damaged natural environment is not so easy to regain. In some cases, developers think that if they’d cut 1000 acres of old forest it can be replaced with the same amount of new planted one, they are completely wrong as many trees and wild life that existed many years and are being harmed, would not be able to regenerate again in case the many species become extinct in the process of development. ‘Environmental resources cannot always be replaced; once destroyed, some may be lost forever. The distinction between reversible and irreversible impacts is very important one, and the irreversible impacts, not susceptible to mitigation, can constitute particular significant impacts in EIA.’ ¹⁰¹

The legislative history of EIA and its implementation in the USA based on NEPA as well as in the EU Member States based on 85/337 EIA Directive and local national legislations are well presented in the book of Glasson at al. This shows the development path of the EIA legislation in western part of the world and is very much helpful for those countries who strive to comply with the requirements of contemporary international law requirements. They can easily check back this path and try not to repeat the errors that the developed part of the world faced in the process of EIA implementation.

Alike Lee and George, these authors discuss the participation procedures as well and consider that they vary from country to country; however, it is an important part of the decision-making process. From their perspective,

100Ibid,8

101Ibid,20

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people from different social and economic structure may argue any development project that has insufficient or harmful effect on the environment.

The literature reviewed in this subtitle refer to the requirement of public participation as a procedure that is not favored by the developers who think that public involvement in the process brings delays, confrontations and blocks the development.¹⁰² This happens because most of the time the developers interact with public in the stage of planning appeals and inquiries, so they think that public has a role to stop their project. Therefore, it might be wiser approach to organize public hearings in a good time and provide good notice before the start of a development project.¹⁰³ The good time and well spread information on public hearings will save more time for developers than they can conceive. The preliminary discussions on development projects will reveal all shortcomings and privileges of a project before the start, so a developer will gain more interesting ideas and suggestions on the project and cut the errors to escape further troubles and pauses in the process of project implementation.

The United Nations Environment Program lists five interrelated components of effective public participation as stated by Glasson:

1. Identification of the groups/individuals interested in or affected by the proposed development;

2. Provision of accurate, understandable, pertinent and timely information;

3. Dialogue between those responsible for the decisions and those affected by them;

4. Assimilation of what the public say in the decision;

and

102Holder, Environmental Assessment : The Regulation of Decision Making (n20), p.193.

103 Ebenezer Appah-Sampong ‘Public hearing within the environmental impact assessment review process’(UNEP EIA Training Resource Manual ® Case studies from developing countries, 2003) <http://www.unep.org/publications/search/pub_details_s.asp?ID=83>, 91 accessed 10 March, 2016.

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5. Feedback about actions taken and how the public influenced the decision.¹⁰⁴

In general, public participation plays the role of exercising indigenous knowledge on indigenous people who are more aware of the chosen development location and can advise more than even experts can do sometimes. In the meantime, this step in development creates transparency and accountability of not only the developer but also the decision maker who will be challenged by the queries and requirements of public as well as experts of particular fields. This approach will balance the nature exploitation endeavors of governing authorities and create the atmosphere of equality in the country.¹⁰⁵ This system in environmental decision-making and management will generate the best practice for management and the governance in particular. Developers have to cope with the legal requirements in case they regulate all rights and responsibilities in reciprocal manner and never prioritize the role of one party to another. The participation results transparent and well-informed EIA process in favour of all interested parties.

Glasson presented a variety of forms of public participation. He gives the samples on how different ways of participation can be thought by the developers and authorities to conduct the comprehensive awareness raising and consulting activity. ‘Explanatory meeting, slide/file presentation, presentation to small groups Public display, exhibit models press release, legal notice, written comment, poll, field office, site visit, advisory committee, task force, community representative, working groups of key actors, Citizen Review board ,public enquiry, litigation, Demonstration, Protest, riots.’¹⁰⁶ Public participation and awareness raising is required by

104 Glasson, Therivel and Chadwick, Introduction to Environemntal Impact Assessment , 159.

105 Tomas Dietz and Paul C. Stern (eds), Public Participation in Environmental Assessment and Decision Making (National Research Council 2008),3.

106 Glasson, Therivel and Chadwick, Introduction to Environemntal Impact Assessment , 161.

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the 2014/52/EU Directive¹⁰⁷ as well as by the UN Aarhus Convention¹⁰⁸, although it has to be elaborated and implemented in more details and effective methods in every country. However, all the scholars consider the public participation procedure not completely developed yet, and a procedure that requires more work to be improved by the time both in national and international environmental governance.¹⁰⁹

The EIA pre and post-monitoring step seems to be present in all countries based on the literature review. However, the way it is presented in the literature is completely different from the monitoring implemented in Armenia.¹¹⁰ Neither the discussed RA EIA Laws nor the Monitoring department at the Ministry of Nature Protection comply with this step described in the western EIA process. Although a progress is recorded in the requirements of the RA EIA Law of 2014.¹¹¹ It provides the explanation on monitoring program,¹¹² but still omits the requirement on auditing.¹¹³

107 Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 Amending Directive 2011/92/EU on the Assessment of the Effects of Certain Public and Private Projects on the Environment,OJ L 124, 25.4.2014/1–18 .

108Convention on Access to Information, Public Participation in Environmental Decision-Making and Access to Justice in Environmental Matters,2161 UNTS 447; 38 ILM 517 (1999).

109 Holder, Environmental Assessment : The Regulation of Decision Making (n20),Lee and George (eds), Environmental Assessment in Developing and Transitional Countries;

Principles, Methods and Practices (nError! Bookmark not defined.),Glasson, Therivel and Chadwick, Introduction to Environemntal Impact Assessment (n26),Alder, 'EIA –the Inadequacies of English law' (n63), Wathern (ed), Environmental Impact Assessment, Theory and Practice (n85), Ladeur and Prelle, 'Environmental Assessment and Judicial Approaches to Procedural Errors-A European and Comparative Law Analysis' (n77), Holder and McGillivray (eds), Taking Stock of Environmental Assessment : Law,Policy and Practice, Holder and Lee, Environmental Protection, Law and Policy: Text and Materials(n74).

110 Ministry of Nature Protection in Armenia, 'Structure' (Ministry of Nature Protection in Armenia, 2015) <http://www.mnp.am/?p=165> accessed 16/05/2015.

111 Հայ աստանի Հանրապետության Օ ր ե ն ք ը Շրջակա Միջավայրի Վրա Ազդեցության Գնահատման Եվ Փորձաքննության ՄասինՀՕ-110-,ՀՀՊՏ 2014.07.30/41(1054) Հոդ.636 (RA Law on Environmental Impact Assessment and Expertise 2014/HO-110-N/ main source ՀՀՊՏ 2014.07.30/41(1054) Art.636), Art.18.

112 Ibid, Art.4, self-monitoring, post-project monitoring.

113 Monitoring is a project control during its implementation. The audit is the final monitoring and can be done by the external experts in most cases.

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The literature review highlights the importance of monitoring and auditing of each development project required by the international and national regulations. Glasson at al suggest that gathering data during the planned project implementation by the time of each stage of development will provide possibility of better integration into the EIA process and the monitoring will be easier to implement for later similar projects. Besides this, the timely gathered and monitored data may provide opportunity to find out occurred difficulties, harms or effects in the process of developments, establish the exact points of responsibilities and help in future planning and development. It will be a useful tool for Armenian Environmental management as well and has to be considered during the amendment of the existing law. Interestingly, the monitoring is not a mandatory requirement in the UK EIA legislation. Glasson at al. consider that despite the non-mandatory nature of monitoring and auditing requirements, they are active during development procedures in the UK.

Sometimes these steps reveal the real results of the implementation, which was hard to establish through theoretical measurements in Environmental Impact Statement preparation process. Glasson points out that ‘...Yet many projects have very long lives, and their impacts need to be monitored on a regular basis.... such monitoring can improve project management and contribute to the auditing of both impact predictions and mitigation measures.... monitoring and auditing need to be more integrated into EIA process on a mandatory basis.’¹¹⁴

However, Glasson at al bring the example of monitoring in the UK while discussing the Sizewell B PWR construction project case. It shows that the monitoring and auditing is under the discretion of the member state.

‘…although monitoring and auditing impacts are not mandatory in the UK, the physical and socio-economic effects of developments are not completely ignored.’¹¹⁵ It is to show the political will of the country to track the impact, reveal the harmful aspects and combat them. The issue of state discretion and law compliance occurred in the case named shortly the

114Glasson, Therivel and Chadwick, Introduction to Environemntal Impact Assessment , (n26), 185.

115Ibid, 194.

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Cairngorm Funicular Railway case.¹¹⁶ The permission granted to the developer had been mostly under the discretion of the decision maker. The court review found out that the decision makers complied with the requirements of the directives and national laws, so the petition was dismissed.¹¹⁷Two decision-making bodies: the EIA decision-making body and the court, in this case performed in accordance their duties complying the requirements of laws. Lord Nimmo Smith states in that regard ‘...

Judicial review is available, not to provide machinery for an appeal, but to ensure that the decision-maker to whom a jurisdiction, power or authority has been designated or entrusted by statute, agreement or any other instrument, does not exceed or abuse his powers or fail to perform the duty which has been delegated or entrusted to him.’¹¹⁸

Glasson at al. gives an understanding of the scope and format of environmental statement that appears to be a guideline of a proposed project and has to contain a non-technical summary as well, which is an important part of EIS.¹¹⁹ This is again a new concept for the environmental governance in Armenia, although there is a requirement of the application and the technical characteristics for the development project; however the non-technical explanation or any similar document is neither required nor presented so far.

Another issue that is common for all the countries based on the literature review is the rise in environmental crimes on the world. Recent studies on this show the weakness of environmental enforcement mechanisms on the world nationally and internationally.

The EIA stresses the need to encourage the application of existing national criminal laws, proceeds of crime and seizure of assets, legislation against environmental criminals in addition to

116 WWF-UK Ltd and Another v Secretary of State for Scotland 632 WWF-UK Ltd and Another v Secretary of State for Scotland Court of Session (Outer House) 27 October 1998 [1999] Env LR 632 (Court of Session ).

117 Ibid.

118 Ibid.

119Glasson, Therivel and Chadwick, Introduction to Environemntal Impact Assessment , (n26),170.

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“environmental specific” legislation (EIA, 2008).

Administrative reform, particularly through the introduction of technology to remove direct human contact involved in areas such as trade in natural resources, would be another way to combat corruption (EIA, 2008)¹²⁰

The sub-title revealed the common procedures in environmental governance based on the literature review however, it encountered differences that exist in implementation of environmental protection between western part of the world and in Armenia. The western part of the world developed the EIA process up to a level where it almost reached to the sustainable development, whereas Armenia still needs to accommodate many concepts both in theoretical and practical context to establish a good governance in environmental decision-making process.