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Official Gazette

Sunday, September 20, 2020

A MUST TO AMEND THE ENVIRONMENTAL PROTECTION LAW

Updated: 16:33’ - 24/01/2005

Nghiem Xuan Bach

 

I. The necessity to amend the Environmental Protection Law

1) Since its promulgation in 1993, Vietnam’s first-ever  EPL has played an active role in raising the people’s and authorities’ awareness of the environmental protection, thus contributing to preventing and minimizing the adverse impacts on the environment. It has created a legal framework for the sustainable socio-economic development.

Yet, after more than ten years’ implementing the Law, it has revealed weaknesses and loopholes, particularly at the time when Vietnam has embarked into the period of accelerated industrialization and modernization. It has proved to be of a framework law which is unspecific, unclear and not highly feasible, thus needing sub-law documents guiding its implementation.

For instance, the provision in its Article 18 that investment project owners must make environmental impact assessment reports for appraisal by environmental protection management agencies is unspecific, thus producing low enforcement effect. At present, nearly 70% of industrial zones and 90% production or business establishments fail to treat waste matters, water or gaseous waste, causing serious environmental pollution in many places. Or its provisions on compensation responsibility of organizations or individuals that cause environmental degeneration, pollution or incidents are too general, hence almost infeasible.

The 1993 EPL has neglected to prescribe the import of discarded materials for use as production raw materials though the import of some kinds of discarded materials for domestic production is becoming a practical demand. This is really a loophole for some people to sneak through in an attempt to turn Vietnam into a waste dumping site for foreign countries.

Besides, the provisions on environmental protection have been here and there in various legal documents covering other domains. This has led to overlapping and inconsistency in the legislation on environmental protection.

2) The environment in Vietnam has been increasingly polluted and degenerated in recent years, even to an alarming extent in some areas. Soil has been depleted; water source quality has deteriorated; atmosphere in many population quarters and urban centers has been seriously polluted; bio-diversity has been seriously threatened. The environmental issue has become an important cause of bad impacts on the country’s sustainable development and people’s health and life.

3) The technical infrastructures for environment protection in rural and urban areas are poor; pollution-treating equipment in production establishments, particularly medium- and small-sized enterprises, are obsolete; the system of environment management organizations has not been perfected at all levels, in various branches; the contingent of environment management personnel is quantitatively and qualitatively weak; the responsibility division and coordination between the central government as well as agencies and local administrations as well as bodies, among branches and localities are not well effected, resulting in overlapping, negligence, relaxation and inefficiency.

4) The process of international economic integration requires better and better environment protection: In the trend of international economic integration and globalization, many territories and countries have become Vietnam’s potential export markets, which have required and will certainly require the environmental standards of export products. This is really a great challenge to Vietnamese enterprises manufacturing export goods if they wish to raise the competitiveness of their products and expand their export markets in the process of international economic integration.

II. Viewpoints and guiding principles on amendment of the EPL

The amendment of the current EPL must follow the following viewpoints and guiding principles:

1) Being in accordance with the basic principles of the Constitution, institutionalizing the viewpoint stated in the IXth Party Congress’s Resolution that “fast, efficient and sustainable economic development and growth go in couple with social progress and justice as well as environmental protection” as well as the viewpoints, undertakings and specific tasks mentioned in Resolution No. 41-NQ/TW of the Political Bureau of the Communist Party of Vietnam Central Committee.

2) Being in harmony and accordance with the socio-economic development rate in the country and the process of international economic integration.

3) Inheriting the pluses and redressing the minuses of the 1993 EPL, codifying a number of provisions in sub-law documents, which have been tested in reality and proved to be consistent, into law provisions; at the same time selectively absorbing other countries’ experiences in environmental protection.

4) Satisfying renewal requirements, increasing resources for environmental protection in the new period; being in line with the state administration reform; demonstrating its leading role in linking specialized laws in regulating relationships concerning environmental protection activities.

5) Setting clear-cut, specific and highly feasible provisions in order to limit the number of sub-law documents and enable the immediate application of laws.

III. Structure and new contents of the draft (amended) EPL

The latest draft of the (amended) EPL submitted to the Government on December 23, 2004 comprises 10 chapters with 78 articles, with four new chapters added to, and one chapter (on Commendation and Violation Handling) deleted from, the current law, and 23 articles more than the current law.

Chapter I.- General Provisions, which comprises eight articles (from Article 1 to Article 8) prescribing the regulation scope, application subjects, term explanation, general principles on environmental protection, environmental protection responsibilities of organizations and individuals, acts to be encouraged and acts to be prohibited, law application.

As compared with the 1993 Law, this chapter prescribes a broader scope of regulation (Article 1) and is added with the application subjects (Article 2), with a number of concepts on environment (in Article 3 on term definitions), with the general principles on environmental protection (Article 4), with more environmental protection responsibilities of organizations and individuals, including project investors, production and business establishments (Article 5), and added with the law application in case of contradiction between the EPL and other relevant legislation (Article 8).

Chapter II.- Prevention and restriction of adverse impacts on environment- which comprises 19 articles (Articles 9 thru 27) on environmental protection in development strategies, plannings and plans; environmental protection infrastructure plannings; sustainable use of natural resources, formulation of consumption habits in concord with environmentally; development of clean energy and renewable energy; use of environment-friendly technologies; development of environmental technologies; environmental protection for industrial parks, export processing zones, hi-tech parks, economic zones, urban centers; environmental protection for production and business establishments; biological safety; chemical safety; nuclear safety and radiation safety; packages and management of used products and packages; environmental protection for import of technologies, machinery, equipment, transport means and import of discarded materials for use as raw materials for production; environmental protection for foreign transit commodities and means; environmental impact assessment, commitment to achieve environmental standards and responsibilities to execute and inspect the execution of decisions approving environmental impact assessment reports.

As compared with the current Law, this chapter is added with provisions on environmental protection in the formulation, appraisal, approval and implementation of development strategies, plannings and plans (Article 9); provisions on environmental protection infrastructure planning (Article 10); provisions on the use of natural resources, the development of energies and technologies in order to mitigate environmental pollution (Articles 11 thru 14); and with provisions on environmental protection in economic and social activities (Articles 15 thru 22).

Other new contents found here include the provisions on environmental impact assessment reports; on competence to approve such reports; on subjects making and submitting such reports for approval; particularly the provisions on gathering comments of commune-level People’s Committees and population communities at places where projects are to be executed as well as the certification of results of execution of approving decisions before projects are put into operation (from Article 23 to Article 26); and the provisions on commitment to reach environmental standards in order to reduce the volume of work on elaboration, appraisal and approval of environmental impact assessment reports (Article 27).

Chapter III.- Management of wastes, is composed of 12 articles (Articles 28 thru 39) on responsibilities for management of wastes; recycling, reuse of wastes; file on, registration, grant of permits and codes for activities of management of hazardous wastes; the gathering, storage, transportation, treatment, discharge, burial of hazardous wastes; management of common solid wastes; management of waste water; management of dust, gaseous waste; reduction of noise and vibration; storage, freezing, burial of dead persons.

This is a new chapter added to the current Law.

Chapter IV.- Restoration of environment; coping with and redressing environmental incidents; improving and raising the environmental quality.

This chapter comprises seven articles (from Articles 40 thru 46) on restoration of environment in polluted areas; coping with and redressing environmental incidents; environmental protection in river basins; environmental protection in population quarters; maintenance of hygiene at public places; protection of environmental landscapes; protection of biodiversity.

Chapter V.- Environmental standards; environmental observation and assessment and management of information and data on environment.

This is a new chapter comprising nine articles (Articles 47 thru 55) which prescribe the environmental standards; the environmental quality standards; standards on wastes; environmental observation and assessment system; environmental observation and assessment programs; reports on environment; gathering, processing, synthesis, supply and promulgation of information and data on environment; publicization of information and dialogues on environment.

Chapter VI.- Environmental protection resources

This is the third new chapter added to the current Law, containing provisions on development of education, training, science, technology and environmental technology; capital sources for environmental protection; environmental protection charges and fees; collateral for environment restoration and improvement in mineral exploitation; population community-based environmental protection; promotion of the role of socio-political organizations, social organizations in environmental protection; development of environmental services.

Chapter VII.- Settlement of complaints, denunciations, disputes and compensation for environmental damage.

Being newly added to the current Law, this chapter comprises six articles (Articles 63 thru 68), prescribing environment-related complaints, denunciations and disputes; environmental damage; damage compensations; insurance of liability for environmental damage compensations.

Chapter VIII.- State management over environmental protection.

This chapter is composed of five articles (Articles 69 thru 73) providing for the contents of state management over environmental protection; responsibilities of state administrative bodies for environmental protection; specialized and professional environmental protection organizations; environmental protection inspectorates, violation handling.

As compared with the current Law, the contents of State management over environmental protection in the draft law are further clarified; the responsibilities of the Natural Resources and Environment Ministry, other ministries, ministerial-level agencies, Government-attached agencies and People’s Committees at all levels are more clearly defined (Article 69).

A new content added to this chapter dwells on the specialized, professional environmental protection bodies (Article 71) in ministries, ministerial-level agencies, Government-attached agencies, People’s Committees at all levels, which form a system of environmental protection management organizations from the central to grassroots level.

This chapter also provides more clearly the examination and inspection responsibilities of various levels in environmental inspection activities (Article 72).

Chapter IX.- International cooperation on environmental protection.

This chapter is composed of three articles (Articles 74 to 76) prescribing the environment in international economic integration, environmental protection in the process of globalization, accession to and implementation of international agreements on environment; expansion of international cooperation on environmental protection.

There are also a number of provisions on the Vietnamese State’s responsibilities concerning global and regional environment as well as on environmental protection in the process of international economic integration.

Chapter X.- Implementation provisions

This chapter comprises two articles (77 and 78), prescribing the implementation effect; the responsibility to detail and guide the implementation of the law.

In short, the amended EPL affirms not only the Vietnamese state’s priority given to considering the signing of international treaties beneficial to the protection of global, regional and domestic environments but also its full commitment to the contents of international treaties which Vietnam has signed or acceded to. This is a new provision of higher legal effect for international cooperation.

It clearly defines the Government’s responsibility to direct the assessment, forecast of adverse impacts and to work out plans on the prevention thereof so as to protect the environment in the country while meeting the requirements of international economic integration. Moreover, the amended EPL also points out that the expansion of international cooperation on environmental protection must aim to raise Vietnam’s role and position in the protection of environment in the region and the world. This constitutes a new provision as compared to the 1993 EPL.

Regarding foreign investors, the amended EPL prescribes more realistic environmental standards, the standards of their products and import discarded materials and also points to the responsibilities of agencies performing the state management over environment to draw up more convenient legal procedures for foreign investors to participate in investment and trade activities in Vietnam.-

VNL_KH1 

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