Environmental impact assessments

Importance of Environmental Impact Assessment System

Myanmar has relied heavily on natural resource exploitation to sustain economic growth, but this has come at the expense of the environment. Environmental governance is low, and Myanmar ranked 138 out of 180 countries in regard to how well the country is doing in meeting their own national environmental policies.¹ Environment-specific legislation did not come into effect until a few years ago, and this means that serious environmental issues are emerging alongside an uncertain environment for investors. Ease of doing business in Myanmar is considered low by the World Bank, with Myanmar ranking 171 out of 190 economies in this respect in 2019.² Myanmar recently began inviting more foreign investors into the country, and an effort has been made to modernize Myanmar environmental governance systems, including through increasing transparency, access to information, and public participation. Environmental impact assessment (EIA) is one of these ways.³

Environmental Governance Reform in Myanmar

Myanmar has recently undergone a significant environmental governance reform, including changes in governmental organization. On 30 March 2016, the Ministry of Natural Resources and Environmental Conservation (MONREC) was created from the Ministry of Environmental Conservation and Forestry (MOECAF). MONREC acts as a focal point and coordinating agency for effective environmental management in Myanmar. Originally established by MOECAF in 2012, the Environmental Conservation Department (ECD) persists under MONREC and is the most responsible department for EIA processes at the national level, attached with district offices and township offices at the regional and local level. Figure 1 shows the organizational Structure of the ECD.

Figure 1: Organizational structure of the ECD⁴

The environment also features in current Myanmar policies. Strategy 3.6 under Goal 3 of Myanmar Sustainable Development Plan (MSDP) (2018-30)⁵ identifies the need to build infrastructure to facilitated economic growth and to establish effective social and environmental safeguards against negative impacts of infrastructure development.⁶ On 5 June 2019, National Environmental Policy (NEP) of Myanmar was launched and it aims to achieve (1) a clean environment and healthy, functioning ecosystems, (2) sustainable economic and social development, and (3) the mainstreaming of environmental protection and management.⁷

Another significant result of this reform is an EIA process that conforms with international best practice. The EIA process is one tool that helps to fulfil the provisions on environment of the 2008 Constitution of the Republic of the Union of Myanmar, which states that the Union shall protect and conserve the natural environment (Section 45), and every citizen has the duty to assist the Union in carrying out environmental conservation (Section 390(b)).⁸ The Myanmar National Environmental Policy addresses this duty, and the legal framework encompasses the policy through the Environmental Conservation Law, promulgated in 2012.⁹ The implementation of this law is detailed in the Environmental Conservation Rules (2014), and the Environmental Impact Assessment Procedure (2015), enacted by MONREC, lays out EIA procedures. It is the first full-scale legal framework of EIA in Myanmar, and describes the process of obtaining an Environmental Compliance Certificate (ECC). In addition, Draft Guidelines for Public Participation in the EIA process were also developed in 2017 and are awaiting approval.¹⁰

A number of EIA-related and relevant legislation have also been enacted. Sector-specific EIA guidelines have been prepared for the mining sector with support from the Asian Development Bank (ADB) and World Wide Fund for Nature (WWF), for the oil and gas sector with support from the Norwegian Environmental Agency (NEA), and for the hydropower sector with support from IFC.

National Environmental Quality (Emission) Guidelines (NEQG) were promulgated on 29 December 2015, laying out the guidelines to prevent pollution from noise, vibrations, gas emissions, and effluent emissions. These guidelines are prepared based on the IFC’s Environmental, Health and Safety Guidelines, and specifically applies to all project types listed in Annex A of the EIA Procedure.

In addition, the Myanmar Investment Law (2016) investors need to obtain the permit from the Myanmar Investment Commission (MIC) if their businesses are large capital-intensive investment projects and are likely to cause a large impact on the environment and the local community (Article 36).¹¹ The Myanmar Investment Rules (2017) also apply. However, there remains a lack of clarity over the relationship between the Investment Law, and the Investment Rules and the EIA Procedure, particularly around the timing for preparing EIAs and Initial Environmental Examinations (IEEs).¹²

Process of EIA

This section discusses the process of EIA and does not discuss IEEs in detail.

The project proponent is required to submit the proposal with project description to ECD and ECD will decide the project type as IEE or EIA, according to criteria indicated in Annex A “Categorization of Economic Activities for Assessment Purposes” of the EIA Procedure 2015, as well as Articles 25 and 28 of EIA Procedure. This process is also known as “Screening”. For non IEE/ EIA type project, standalone “Environmental Management Plan (EMP)” might be needed for every phase of the project, according to the comments of ECD.

For EIA project type, the project proponent shall submit the detailed information of the organization undertaking the EIA investigation and reporting to the ECD for approval before the study starts (Article 45). The EIA study team must be a duly registered third-party consultants (individual or organization) (see Articles 45, as well as Articles 17-22 regarding consultants). This is different from IEEs, which may be conducted by either the project proponent or a consultant (Article 32). Then the proponent needs to submit a Terms of Reference (TOR) and a Scoping Report to ECD (Article 53). This process is called “Scoping” (Article 47). IEE type projects do not go through scoping.

After receiving the approval of ECD on the TOR and Scoping Report, the proponent can start “Investigation”. Public Consultation must be held during both Scoping and Investigation for EIA type projects (Articles 50, 61). The proponent is responsible for the preparation of the EIA report in accordance with the requirements set out in Article 63, and must be submitted by the project proponent to ECD (Article 64) to be reviewed by the “EIA Report Review Body” (Article 67(a)). Public participation is required at this step as well (Article 67(b) and (c)). Whether for IEE or EIA, the project proponent is required to disclose the report to the public.¹³ Likewise, ECD is required to disclose the submitted IEE or EIA report to the public.¹⁴

Based on the review of the EIA Report Review Body, the ECD may approve the report (Article 70) before developing an “Environmental Compliance Certificate (ECC)” (Article 2(u)). An ECC has legal effect and contains all the environmental and social management measures that the project is required to use. The ECC is valid for a period of five years from the date of issuance and the project proponent may apply to the MONREC for an extension, 6 months prior to expiry date.¹⁵ The diagrams of EIA process for IEE/ EIA/ EMP are described in Annex B of EIA Procedure. The final decision or ECC for the project will be disclosed on ECD website.

Figure 1: Steps of EIA Process in Myanmar. Created by ODM. Licensed under CC BY-SA 4.0.

Monitoring and inspection

According to Article 106 of EIA Procedures, the project proponent shall carry out self-monitoring of the project and related activities for all adverse impacts during all phases of the project. The monitoring report will be submitted by the project proponent to MONREC not less than every six months. The Ministry has the right to conduct monitoring and inspections of the project and related activities. If necessary, the Ministry can inspect together with any other ministries. In Annex C of EIA Procedures, penalties and other administrative actions for a failure to comply with the issued ECC or approved EMP are stated in detail. Article 110 states that the monitoring report shall be made publicly available on the Project’s website and at public meeting places.

At present, the EIA Division is established within ECD to review and approve the EIAs, IEEs and EMPs. The Division has five sectoral teams: (1) mining, (2) hydropower, (3) infrastructure, (4) industry(manufacturing), and (5) agriculture, livestock, fishery and plantation. MONREC and ECD have set ambitious targets to recruit more than 19,000 staff by 2025 and establish 73 offices at district level and 365 at township level, although this will require significant increases in budget, resources and capacity building.¹⁶

The number of EIAs, IEEs and EMPs submitted to ECD is increasing every year (2014-15 to 2017-18) and as of February 2019, a total of 2,783 reports were submitted. 89.6% (2,494) of these reports had been replied to and only 6.9% (192) had been approved. (Table 1)¹⁷ The reports are submitted for different sectors: (1) Special Investment Projects, (2) Energy Sector Development, (3) Agriculture, Livestock and Forestry Development, (4) Manufacturing, (5) Water Supply, (6) Infrastructure and Service Development, (7) Transportation, and (8) Mining.

Table 1: EIAs, IEEs and EMPs received by ECD as of 31 January 2019

Challenges

Although ECD and MONREC have organized their teams to review and approve EIA/ IEE/ EMP, the existing limited resources and technical and institutional capacity of the ECD have caused delay in the review and approval process, leading to a backlog of unprocessed reports. Moreover, poor quality of reports submitted, particularly from the mining sector, also increases the delay, as the ECD staff spend time in back and forth communication with the project proponent and EIA consultant to revise the report.  Furthermore, the ECD has limited budget, staff, equipment and facilities to also conduct monitoring and inspection on projects, and to enforce compliance of the projects for the whole country.¹⁸ Other challenges include the application of the EIA Procedure to Special Economic Zones (SEZs), a lack of Strategic Environmental Assessment for the planning of large developments, and inadequate public participation and information disclosure for social impact assessment (SIA). 

Chapter 6 of the EIA Procedure lays out an appeal process for those who are dissatisfied with the EIA process.¹⁹ It is a potentially powerful tool for project-affected communities to use to access their rights. However, the appeal process has not yet been used.

In order to improve the EIA system of Myanmar, the World Bank has recommended the following, alongside other recommendations not specific to EIA:

• Establish a transparent Environmental Management Information System;
• Adopt a risk-based and outcome-focused approach to EIA approval, review, and monitoring;
• Operationalize dedicated financial mechanisms to cover the costs of environmental assessment and compliance;
• Strengthen environmental management institutions and mobilize resources to boost capacity at national and subnational levels.²⁰

To access available EIA’s and contracts, please visit the datahub here.