PHAM DIEM
State and Law Institute of Vietnam
The 1993 Environmental Protection Law defined environmental impact assessment for the first time as a process of analyzing, appraising and forecasting environmental impacts of socio-economic development projects and plans; production or business establishments; and economic, cultural, social, defense or security facilities and other facilities, and proposing appropriate solutions to environmental protection. Thanks to the socio-economic development and based on Vietnam’s environmental status and international integration process, the issue of environmental impact assessment is provided for in the 2005 Environmental Protection Law in two degrees: strategic environmental assessment and environmental impact assessment. Strategic environmental assessment means the analysis and forecast of environmental impacts of strategic projects and development plans before they are approved in order to assure sustainable development. Environmental impact assessment covers the analysis and forecast of environmental impacts of specific investment projects before environmental protection measures can be proposed for execution of those projects.
Environmental impact assessment (including both strategic environmental assessment and environmental impact assessment) can be viewed from the aspect of state administration as a measure for state management of the environment. Scientifically, it is considered research into the correlation and interaction between development activities and environmental aspects. Judicially, it means the system of legal relations formed between state agencies and organizations as well as individuals that conduct development activities in surveying and assessing the impacts of such development activities on environmental elements. Any organization or individual that implements a project or conducts a production or business activity that may cause an environmental impact is obliged to carry out analysis and assessment of that environmental impact and to propose appropriate solutions to environmental protection.
Environmental impact assessment basically aims to ensure the harmony between economic development and environmental protection, for sustainable development. In the spirit of Vietnamese law, the process of environmental impact assessment must:
l Be placed within a system harmonizing socio-economic development demands and environmental protection requirements.
l Serve as a tool for selecting rational and accurate development plans.
l Be conducted as an inter-disciplinary activity and in an objective and scientific fashion. Agencies conducting environmental impact assessment must have sufficient professional conditions and material facilities.
l Be conducted on the basis of environmental standards.
The provisions on environmental impact assessment in Vietnamese law govern such principal issues as entities obliged to make environmental impact assessment reports, environmental impact assessment procedures and contents, examination and approval of environmental impact assessment reports, responsibilities to observe and inspect the observance of contents of environmental impact assessment reports.
Under Vietnamese law, environmental impact assessment rests with all organizations and individuals that conduct development activities, for instance production or business projects or activities subject to the law on environmental impact assessment, regardless of their ownership form or organizational type. The determination of the responsibility to conduct an assessment of a project’s environmental impacts rests on:
l Location of development activities. Environmental impacts of a development activity or a project depend much on its selected location.
l Objectives of development activities. These constitute a factor directly affecting the environmental elements as well as present and future environmental changes.
l Scale of development activities. This constitutes a factor clearly reflecting the extent and scope of environmental impact.
In the spirit of the 1993 Environmental Protection Law and relevant legal documents, projects can be divided into two types: projects requiring environmental impact assessment reports (type-I projects) and projects not requiring environmental impact assessment reports (type-II projects). Type-I projects include those likely to cause environmental pollution in a vast area, prone to environmental incidents, hard to be controlled and unidentifiable in terms of environmental standards. Meanwhile, type-II projects, which require only the environmental standard conformity registration include those not on the list of type-I projects and type-I projects that invest in industrial parks or export processing zones, for which environmental impact survey reports have been approved in writing. These type-II projects would be registered for environmental standard conformity after their own environmental impact assessment reports are made and analyzed by themselves. Competent agencies would not examine environmental impact assessment reports but consider and give only written certification of environmental standard conformity registrations.
Any written environmental impact assessment is referred to as an environmental impact assessment report, which, after being examined, serves as a basis for the competent state agency to decide on the implementation or shut-down or permit the continued operation of a project, and to determine the project owner’s liability as well as concerned state agencies’ responsibilities for the project’s environmental consequences, particularly the agency that has directly examined that environmental impact assessment report.
The examination of an environmental impact assessment report must:
l Take into account the relationship between socio-economic development demands and environmental protection requirements.
l Ensure harmony between the benefits of each individual, organization or locality and the common benefits of the entire society.
l Consider immediate and long-term benefits.
The 1993 Environmental Protection Law specifically decentralized the responsibility for examining environmental impact assessment reports and considering environmental standard conformity registrations:
The National Assembly Standing Committee examines projects with particularly great environmental impacts.
The Science, Technology and Environment Ministry examines projects assigned by the Government.
The Defense Ministry and the Public Security Ministry examine projects falling under their respective jurisdiction.
The provincial/municipal People’s Committees authorize provincial/municipal Science, Technology and Environment Services to organize the examination of projects in their respective localities.
The examination of environmental impact is concluded with the issuance of decisions on approval of environmental impact assessment reports or the grant of written certifications of environmental standards conformity and the commencement of project implementation. If competent agencies refuse to issue or grant such documents, projects will not be implemented. For a production or business establishment in operation, the examination of environmental impact assessment may lead to one of the following legal consequences:
l Permission for continued operation.
l Forcible investment in a waste-treatment facility by the establishment’s owner.
l Forcible change of applied technology or forcible relocation of the establishment by its owner.
l Forcible termination of its operation.
Under the 2005 Environmental Protection Law, environmental impact assessments are conducted in two degrees: strategic environmental assessment and environmental impact assessment. Subject to strategic environmental assessment reports are socio-economic development strategies, plans, including:
l National-level socio-economic development strategies and plans.
l Strategies and plans for development of branches or domains on a national scale.
l Socio-economic development strategies and plans of provinces, centrally run cities or regions.
l Land use plans, protection and development of forests, exploitation and utilization of other natural resources in inter-provincial or inter-regional areas.
l Development plans of key economic regions.
l General plans of inter-provincial river watersheds.
Obliged to make environmental impact assessment reports are owners of specific projects or works.
With the above division, the 2005 Environmental Protection Law has made some marked progresses compared with the 1993 Environmental Protection Law.
First, environmental assessment reports are required for not only specific projects or works but also socio-economic development strategies and plans. This helps enhance the environmental protection responsibilities not only of investors but also state authorities, branches and local administrations.
Second, all types of projects are required to make environmental impact assessment reports, and the so-called environmental standard conformity registrations previously provided for by the 1993 Environmental Protection Law no longer exist.
The definite division of degrees of environmental impact assessment entails many new provisions on environmental impact assessment procedures and contents, examination and approval of environmental impact assessment reports, and the responsibility to observe and inspect the observance of contents of environmental impact assessment reports. These provisions separately and specifically govern strategic environmental assessment and assessment of environmental impacts of specific projects or works.
In Vietnam, the past several decades saw strong development of the household and craft village economy, which has caused considerable impacts on the environment. To protect the environment from adverse impacts of production, business or service activities conducted by households or other entities not subject to strategic environmental assessment reports and environmental standard assessment reports, the 2005 Environmental Protection Law requires them to make “environmental protection commitment.” It also specifies principal contents, procedures for registration and responsibilities to realize and inspect the realization of this commitment.-