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Impact Assessment and Project Appraisal, volume 18, number 4, December 2000, pages 283293, Beech Tree Publishing, 10 Watford Close, Guildford, Surrey GU1 2EP, UK.
Environmental regulation
Devolution of environmental regulation:
environmental impact assessment in Malaysia
P A Memon
283
Figure 1. Malaysia
assessment procedures for natural resource management and it is possible that other states may follow
suit. At the moment, other states only have a limited
role to administer preliminary EIA reports under the
jurisdiction of the federal government. The discussion
will focus on the circumstances which have precipitated this trend towards devolution of EIA and the implications of fragmentation of a hitherto unitary
national system in terms of its effectiveness.
Institutional arrangements
There is a substantial body of recent literature focused
on EIA which advocates the development of EIA systems particularly suited to the needs of developing
countries (for example, Lim, 1985; Biswas and
Agarwala, 1992; Strmquist, 1992; Ebisemiju, 1993;
Wood, 1995; Boyle, 1998; Glasson et al, 1999). A
major consideration in the development of institutional arrangements for an effective EIA system is the
extent to which responsibility for environmental decision-making should be centralised or decentralised
(Doern and Conway, 1994; Doyle and Kellow, 1995;
Harrison, 1996; Holland et al, 1996).
There are manifest advantages in a centralised or
unitary EIA system in a developing country. Such a
system would ensure consistency in terms of applying
uniform national standards and norms and avoid
inter-jurisdictional competition amongst states or
provinces to attract development at the expense of environmental considerations. It would enable effective
use of limited human resources with capability to administer EIA procedures.
A unified national system recognises a legitimate
public interest across jurisdictions in terms of participation in EIA decision-making, for instance, when
making submissions during the preparation of EIA reports. However, by the same token, a unified national
EIA system would need to ensure that it does not become too centralised and top-down and that there are
adequate opportunities for public participation in
decision-making. It could be argued that an ideal arrangement is for responsibility to be shared between
284
activities requiring EIA reports prior to implementation (DOE, 1987). The EIA procedure is shown in
Figure 2. EIA reports submitted to the DOE by project
proponents are reviewed by special technical panels
comprising individuals from government agencies,
universities, the private sector and non-governmental
organisations (DOE, 1992).
It has taken considerable effort on the part of the
DOE to improve the understanding and acceptance of
the EIA requirements by state and federal agencies
and private-sector developers. The Department has
gradually established offices in state capitals to promote more effective co-ordination with state government bureaucracy and developers and the processing
of EIA reports has been progressively decentralised to
these regional DOE offices since 1993. The Malaysian system has been portrayed as a working example
of decentralisation of EIA activities among participants and tiers of government and an effective
mechanism for inter-governmental and inter-agency
co-operation (Ebisemiju, 1993; Sani, 1993).
In this respect, the Malaysian federal EIA system
may be described as gradually tending towards a functionally decentralised model from its centralised
285
1999
Johore
23
12
Kedah
10
Kelantau
Kuala Lumpur
Labuan
Melaka
Negeri Sembilan
12
Pahang
13
Perak
1998
Detailed EIA
1998
Pulau Pinang
Risk analysis
1999
1998
1999
All reports
1998
1999
27
13
10
12
18
10
13
13
Perlis
Sabah
11
11
Sarawak
Selangor
10
10
12
Terengganu
11
10
118
81
11
132
88
Total
Source: www.jas.sains.my/doe/egeiar01.htm
286
body of experts and representatives of interested organisations appointed to review an EIA report and to
evaluate the environmental and developmental costs
and benefits to the community. The Review Panel
makes recommendations to the Director-General for
his/her consideration and decision on project approval.
Large-scale hydroelectric power generation and
transmission projects are listed as a prescribed activity under the EQA. However, on 27 March 1995, the
Federal Minister of Environment exempted resource
development projects in Sarawak from the ambit of
the EQA and made this exemption retrospective from
the 1st of September 1994. The explanation given for
this was that the state of Sarawak had enacted the Natural Resources and Environment (Prescribed Activities) Order 1994 about that time (August 1994).
Contrary to public expectations, the project applicant claimed in April 1995 that the first segment of the
EIA submitted by his company had been approved by
the Sarawak state and he intended to commence preparatory works which involved clearing 69,000 hectares of forest. The plaintiffs insisted on a right to a
copy of the EIA report and to be heard and make
representations under the rights granted to them by the
EQA and all the subsidiary legislation related thereto,
while the defendants denied this.
The High Court Judge found that the nucleus of the
plaintiffs challenge was on the validity of the federal
Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Amendment Order
1995 in relation to the procedural aspects of its enactment. This piece of subsidiary legislation came into
force on the 1st of September 1994 although it was
only gazetted on the 20th of April 1995. The High
Court found no provision in the EQA to permit the
Minister to make any amendments retrospectively.
The Judge noted in his decision that in the federal
guidelines, public participation, in the form of obtaining a copy of the EIA report, commenting on it, and
making representation, is explicitly provided for, and
a valid assessment of an EIA prepared by the project
proponent cannot be made without some form of public participation. This process is mandatory and the
entitlement to a copy of the EIA report and the option
to comment on it becomes a public right. The Amendment Order which repealed this law and therefore affected the rights of the plaintiffs was declared invalid.
He concluded that, since the very essence of EQA
is to formulate measures that shall be taken to prevent,
reduce or control adverse impacts on the environment, public participation was necessary because the
interaction between people and their environment is
fundamental to the concept of [environmental] impact and it was
indeed mandatory for the authorities to hear the
views of the public first before granting its approval It makes a mockery of the whole issue
to say that the EIA can be approved first and
if the public had any constructive ideas, they
can submit later. This certainly is illogical,
Impact Assessment and Project Appraisal December 2000
enhancement of the environment, including the conduct of EIA for development activities that are not
prescribed in the Order or are below the minimum size
required in order to protect the environment. While
the threat of political interference is always there, the
Board has also been given more effective enforcement powers, including specific powers to investigate
offences. During its six-year term of office the NREB
has evaluated over 250 EIA reports. A number of development projects have either been rejected, abandoned, given alternative sites or reduced in coverage
and size (Mamit, 1997).
Apart from the threat of challenge to its political
clout, there are a number of procedural weaknesses in
the EIA system now in place in Sarawak. The most
glaring omission is lack of provision for public participation under the state EIA procedures. The state government justifies this policy on the strength of the
argument that existing channels of electoral democracy provide ample opportunities for people to have
their say. The tradition of participant democracy is
weak in Sarawak and there is manifest need to support
the development of institutions for local governance.
Administering two parallel procedures for EIA in
Sarawak necessitates close consultation between the
DOE and the NREB to avoid the duplication of authority that now exists. Co-ordination is facilitated by
the fact the head of the regional DOE office in
Sarawak is a member of the NREB. Nevertheless, it
would be useful to find out the views of developers on
ways to achieve greater co-ordination. One possibility
is for the two agencies to be located under the same
roof or close by.
The absence of a framework for environmental
planning at a regional (catchment) level and on a local
(urban) level in Sarawak is a major constraint on the
effectiveness of the federal as well as state EIA procedures. Because EIA is administered essentially as a
project-based tool, its ability to anticipate and manage
cumulative impacts is limited.
The other major drawback of the current dual EIA
procedures is that a number of activities which may
impact on the environment, such as shifting agriculture and certain types of timber harvesting, fall outside the ambits of both federal and state procedures.
Not all activities which have significant environmental impacts come in the purview of the lists of
prescribed activities for reasons of the limited scale or
the type of project activity being proposed. As noted
of a potentially more effective system of environmental regulation in tune with the needs of Malaysia
as a diverse and differentiated society.
Other peripheral states in Malaysia may follow the
path of Sarawak and Sabah; the challenge for the DOE
is to collaborate with the states by providing leadership as well as ensuring some degree of uniformity of
practice within different sub-national jurisdictions.
Indeed, as noted earlier, other states have now started
to exercise a limited administrative input to preliminary EIA reports and collaboration with the DOE is
imperative for achieving future effectiveness.
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