WHAT IS EIA?

- Study to identify, predict, evaluate and communicate information about impact of

environment
- Need of EIA
- Preventing problems,
- Avoid costly mistakes in projects,
- Integrate environmental consideration into planning project
- Provide additional information to better decision making
EIA PRINCIPLES

PRINCIPLE 13
- To achieve a more rational management resources
- Improve environment
- Ensure that development is compatible with the need and improve
environmental and benefit of their population

PRINCIPLE 14
- Essential tool recoiling any conflict between the needs of development
- Protect and improve environment

PRINCIPLE 17
- EIA - national instrument
- Proposed activities that whole have impact on environment - based on
authorities decision

Legal Framework
Before 1974

Water Enactment
- To control and prohibits disruption of rivers
- Restrictions of discharges of specific substance into the river

Forest Enactment
- Establishment of forest reserves and control of logging activities

Land and Conversion

- Aimed at conserving hill land
- Protection of soil from erosion
- Prohibits planting of short term crops

Mining Act
- Control discharges from mining activities
Poisons Ordinance
- Regulates use of toxic substance

Merchant Shipping Ordinance

- Governs marine pollutions by vessels
- Unable to curb soaring environmental problems due to rapid advancement of
modern industries
- Focusing specific areas and activities
- EQA relating to the prevention, abatement, control of pollution
- EQA governs by 35 regulations
- EQA covers Water, Noise, Air and Industrial wastage

Environmental Policies
- Vision 2020
- National Development Plan
- Convention of Climate Changes
- Basel Convention

Regulatory Framework
- Director General of DOE
- Grant - renew - transfer - revoke - licenses
- Issuance of licenses with conditions - assessment of activities
- Ministry with advice from Environment Council
- Regulate advice from Environmental Council

Penalty
- S.34A (8)
- Failure to hold license for prescribed premises
- Failure to comply with conditions
- Contravention of monitoring conditions
- Alterations of vehicles, ship/premises

Licensing Requirement
- S.16(2)

Compound of offences
- S.45

Appeal
- S.35

Appeal Board
- Regulations- EQA
- Members - Chairman, D.Chairman,Members
- Power - To hear appeal, consider the application, to award cost (damages)
- Duration - Notice to appeal -30 days of date of decision
- Grounds of appeal - 30 days after submission

Enforcement concept
Assessment - Application of license - Enforcement - Compound

Other features of EQA

- Director General of the DOE
- Environmental Quality Council
- Environmental Quality Audit
- Cess and Environmental Fund

Appointment of director general

- S.3(1)

Department of Environment
- To prevent, control and abate pollution
- Appointment - Ministry of Science
- Scope - To ensure sustainable development
- Roles and responsibilities - Prevention, control and abatement
- Environmental Quality Council - Provide policy guideline
- EiMAS - Assist in raising public awareness on importance of environmental

Legal Requirement of EIA

- S.34A(2)

EIA Coverage
- EQA
- Prescribed activities
- Exceptions (s.34)
- Preliminary or Detailed EIA - Extent of project - significance of impact

Contents of EIA
- Project information
- Project description
- Condition of existing environmental
- Potential impact and mitigating measures
- Environmental Management System
- Simulation model on potential impact

Scope of EIA Assessment

- Social economic
- Environmental
- Community

EIA Process
- Application - Assessment - Submission - Approval

Application issues
- Absence of any provision

- Fragment and disjointed nature of legal framework

- Colonial influence of maximizing exploitation of natural resources
- Overlapping functions btw Environmental and planning agencies
- Doe recommendation to permit / refuse a development can be ignore by state
planning committee
- State Planning can disregard the recommendation for purpose economic
development

CASE LAW EIA : FEDERAL V STATE LAW

- Kajing Tubek v Ekran Bhd

Tahu Lujah, Saran Emu,and Kajing Tubek, had wanted EIA reports to be made
available to them for their views
Issue : Whether the Bakun Hydroelectric Dam (Bakun Dam) is to be
considered under the EQA 1974 which is a Federal environmental legislation
or to be governed by the Sarawak State Law, Natural Resources Ordinance
1974
(MOSTE) excluded the application of the Federal EIA requirements in relation
to the construction of dams in the State of Sarawak (1995 Amendment Order)
Decision: The EQA was enacted to be applicable to the entire nation.
Subsidiary legislation was permitted to give full effect to the EQA.
Under the guidelines prescribed by the project proponent it cannot be made
without some form of public participation
For this is a right vested with the plaintiffs
The High Court's judgment invalidated the Environmental Quality (Prescribed
Activities) (Environmental Impact Assessment) Amendment Order of 1995
and ordered the project developer to comply with the Environmental Quality
Act of 1974 before proceeding with the construction of the dam.
The 1995 amendment order was deemed INVALID because of its retroactive
application which removed rights

CASE LAW EIA : LOCUS STANDI

- Ketua Pengarah Jabatan Alam Sekitar v Kajing Tubek

Appeal WAS challenged

Judge agreed with the submission of senior counsel that the amended order
was not purpose of cutting the ground but to make it clear not for
constitutional reasons - meant to apply to Sarawak

In particular he (the Judge of High Court) did not have sufficient regard for
public interest. Additionally he did not consider the interests of justice from
the point of view of both the appellants and respondents

CASE LAW EIA : CONTRAVENTION LICENSE

- Lam Eng Rubber Factory Director of environmental of Kedah

The Court of Appeal, in a stunning reversal of the High Court, held that the
Defendants had no locus standi because they had suffered no special injury
over and above the injury common to others.

The appellant operates a rubber factory in Sungai Petani, Kedah. The factory
has been in operation since 1940. Each year the appellant applied for and
obtained a license from the local authority. In 1974, the Environmental
Quality Act ("the EQA") came into force. Appellant had to obtain a license
from the Department of the Environment, Kedah, which the appellant did so.
However, appellants application for 1994 license was not approved.
Appellant appealed to the Appeal Board S (35) but was not heard. The DOE
refused to issue the license
Appellant went to the High Court to quash the decision of the DOEs refusal to
issue the license
Appellant lost since the appellant had no license for the year 1994, but yet
they had carried on their factory illegally and had no legitimate expectation
to have a license for 1995.
Brought the case to Appeal Board for:
1st respondent to consider to grant the license
2nd respondent to hear the case of appeal for the license
Appellant Lam Eng Rubber
First Respondent Director General of the DOE
Second Respondent Appeal Board
Decision Appeal granted
Judgement
The first respondent, as I have said, had no jurisdiction whatsoever to deal
with the appellant's appeal. His act was ultra vires (in violation) the EQA. We
therefore allowed the appeal with costs here and below and remitted the
appeal to the Appeal Board appointed under s 36 of the EQA to hear and
dispose of the appeal in accordance with law. The orders of the High Court
were set aside. The deposit was ordered to be refunded to the appellant.
In the event, other matters that had been submitted on in the appeal before
us, which turned on the question whether it is correct that, as the learned
judge held, the appellants had no legitimate expectation to a renewal of
license because the appellants had not been issued a license for the previous
period of April 1, 1994 to March 1995 and therefore there was no license to
renew and also because in that period they had been operating illegally since
they had no license, and which included the question of who was at fault in
the appellants' not being able to obtain a license for that period.

CASE LAW EIA : HAZARDOUS WASTE

- Woon Tan Kan V Asian Rare Earth

Storing of Hazardous material at Bukit Merah. Asian Rare Earth (ARE) was
formed to extract (an element in earth) from monazit. The main shareholders
are Mitsubishi Chemical Industries Ltd (35%), Beh Minerals (35%), Lembaga
Urusan dan Tabung Haji (20%) and some local Bumiputera (10%). The
company shall produce radioactive waste through the monazit processing.
The waste shall belong to the Perak State as it is a potential source of nuclear
energy source.
Plant was in operations beginning 11 July 1982 to 1994
Perak State located the waste storage at the Papan, 16 km from Ipoh.
Struggle of 10 years (from 1984 to 1994)
09 December 1984 Detected radiation level at more than 800 times
permitted
The Papan community protested and brought the case to Ipoh High Court
1 February 1985: 8 residents filed summons to stop ARE from producing,
storing or pile radioactive waste within the vicinity of the area in line with the
Atomic Energy Licensing Act 1984.
Court proceedings in 32 months. Involved internal and external atomic
energy experts
11 July 1992 : Community wins case against ARE. High Court directs ARE
operations to stop in 14 days
23 July 1992 : ARE raised Appeal at the Supreme Court.
24 July 1992 : Following ex-parte application by ARE, Supreme Court Judge
held Ipoh High Courts decision to stop AREs operations.
5 August 1992 : Supreme Court allowed AREs application to reject High
Courts ruling on the appeal. The Supreme Court ruled that the closure will
bring difficulty to the company and the 183 personnel.
19 January 1994 : ARE stopped operations