• The CEA breaks down the component’s elements of the EIA process 
• Stakeholders weigh in on issues in the EIA process
• Issues range from varied grassroots level socio-econ-cultural realities to eliminating non-significant issues

The proposed Jaffna Cricket Stadium in the Mandaitivu Island, under the purview of the Sri Lanka Cricket Board (SLC), has sparked controversy among environmental activists and lawmakers, and notably, the general public. The controversy erupted after activists revealed the SLC had commenced construction prior to an environmental impact assessment (EIA) being conducted, despite prevailing legal provisions in the country mandating that a prescribed project must undergo an EIA before implementation. The status of the Jaffna Stadium project remains unclear, with the SLC stating that one-third of the project is already complete and therefore cannot be halted, while the Central Environmental Authority (CEA) has ordered it stopped. This begs the question – what is a prescribed project? 

Prescribed project

Only prescribed projects are subject to an EIA. These are projects identified as being large in scale or having a significant impact on the environment. The list of prescribed projects requiring an EIA under the National Environmental Act, No. 47 of 1980 (as amended) is contained in Gazette Extra Ordinary Number 772/22 dated 24 June 1993, Gazette Extra Ordinary No. 859/14 dated 23 February 1995, and Gazette Extra Ordinary No. 1104/22. For instance, the reclamation of wetlands exceeding four hectares; the extraction of sand, bauxite, clay, or gems; highways exceeding 10 kilometres; and ports, harbours, and airports are identified as prescribed projects.

EIA

According to the CEA, an EIA is a straightforward process that involves first, predicting the potential impacts of development activities on the natural and social environment, and then, suggesting measures to prevent or minimise negative impacts while enhancing the positive ones. It is the project proposer who prepares the EIA. Along with the EIA, the project proposer is required to submit a model outlining how mitigation will be carried out. It is not mandatory for the project proposer to prepare the EIA report alone; if the project is too large to handle, there are consulting agencies (both private and State consulting firms registered under the CEA) that assist in preparing an EIA. If through the EIA, the project proposer demonstrates the project's capacity to mitigate the environmental impact, approval is granted for execution.

The EIA processes

When contacted by The Daily Morning, sources attached to the EIA Unit of the CEA described the EIA process. According to them, once the project proposer identifies the project falls under the prescribed list, they are required to request environmental approval from the CEA. When a prescribed project seeks environmental approval, there are two levels of approval: recommending it for an EIA or recommending an initial environmental examination (IEE). IEEs are for projects with a lesser environmental impact. The CEA does not decide alone whether a project should undergo an EIA or an IEE; for this, the CEA holds a scoping meeting. A scoping meeting is a critical, early, and open stage in the EIA or IEE process. It is the process of determining the scope of issues to be addressed and identifying the significant issues related to a proposed action. The primary goal is to determine the focus of the EIA study, identify significant environmental, social, and economic impacts, and eliminate non-significant issues from further study. In order to hold the scoping meeting, the relevant project approving agency invites the project proponent, the relevant Government agencies, and other stakeholders to this meeting. The main output of the scoping process is the identification of key issues that must be addressed, which leads to the formulation of the terms of reference [ToR] for the EIA/IEE study to conducting a site visit to make a determination. If a project is identified as requiring an EIA, the CEA issues ToR for drafting the EIA. The ToR determines the extent that must be covered in the EIA. The CEA issues the ToR within 30 days, which includes the scope of the report. 

The same project can be recommended for an environmental protection licence (EPL) as well. EPLs are issued for development projects that generate waste. While an EIA is a site clearance project, an EPL is concerned with the operational side and waste generation. It is issued as an operational assessment. Sometimes, projects fall under both the prescribed EIA list and the EPL list; in such cases, both an EIA and an EPL must be obtained. 

After the ToR is issued, the project proposer prepares the EIA report and submits it to the CEA for public consultation. Before it is announced to the public, the Technical Evaluation Committee (TEC), ensures the report addresses all critical impacts, identifies cumulative impacts, and includes appropriate mitigation measures.  It is the project approving agency that appoints the TEC to evaluate the EIA report to ensure that it meets the ToR issued during the scoping stage. The TEC is composed of officials from the project approving agency, representatives from the CEA, independent experts or officials from the relevant Departments with specialised knowledge in the areas affected by the project, and other stakeholders including representatives from other related Government agencies having jurisdiction over the proposed project area. The TEC decides whether the report is ready for public consultation, assessing whether the data is adequate and clear. If the report is not sufficiently clear, the CEA requests the project proposer to review it. Once the review is completed, the report is submitted for consultation. The report is open for consultation for 30 days. Also, following the public comment period, the TEC reviews the public feedback and makes recommendations to the project approving agency for final approval or rejection. The CEA publishes the report in Sinhala, Tamil, and English on its website and in local newspapers. Notices are also placed on notice boards at Divisional Secretariats and Local Government Bodies. After receiving all public comments, they must be presented to the developer within six days. If a considerable number of comments are received, a public hearing may be required under the National Environmental Act, though this is not mandatory. There have been instances where public hearings were allowed. If a public hearing takes place, an audio recording is also provided to the developer.

Once all public comments are received, they are categorised by both the CEA and the developer. The CEA determines whether an issue relates to chemical waste generation, a threat to the ecosystem, a social issue, and so forth. The CEA then summarises them. The project proposer must respond to the CEA, outlining how these issues can be addressed and mitigated as the project proceeds. After considering everything, the CEA can either approve or reject the project. If the project is rejected, the developer may appeal to the Environment Ministry Secretary. Sometimes, projects are rejected, while at other times they are approved with conditions. If an EIA is rejected by a project approving agency, the project proponent may appeal to the said Secretary within 14 days of receiving the decision, under Section 23DD(1) of the National Environmental (Amendment) Act, No. 56 of 1988. The appeal must be submitted in writing, detailing the reasons for disagreement with the rejection. The Secretary will consider the appeal and may review the decision made by the initial project approving agency. The decision of the Secretary is considered final regarding the appeal. In this reviewing process, the Secretary reviews the original EIA document, the reasons for the rejection by the project approving agency, and any additional information submitted by the appellant. Objections or comments submitted by interested parties during the review period are also considered. The Ministry also consults technical experts to re-assess the environmental impacts, mitigation methods, and cost-benefit analysis. The focus in this process is on whether the mitigation measures in the environmental management plan are adequate to address the negative impacts. Once the review is completed, the Secretary can either affirm the rejection or overturn it, allowing the project to proceed, often with additional conditions.

The EIA is typically a 116-day process. The screening and approval of the application for environmental approval from the project proposer takes place within six days. The ToR is issued to the project proposer within 30 days. There is no specified timeframe for the project proposer to prepare the EIA report; it is the developer's responsibility. When the developer submits the report, the CEA has 14 days to determine whether it is adequate for public consultation. The report is then open for public consultation for 30 days, and the CEA's decision to approve or disapprove must be given within 30 days.

Decision-making bodies

The EIA process is handled by officials of the Environmental Assessment Unit of the CEA. EIAs are carried out through project approving agencies. According to the CEA's mandate, other institutions besides the CEA can also serve as project approving agencies. For instance, if a prescribed project is located within a Wildlife Sanctuary, the CEA can appoint the Wildlife Conservation Department to administer the EIA process. If it involves a Forest, the CEA may designate the Forest Conservation Department as the project approving agency. However, it is the CEA that makes the final decision.

Issues in the EIA process

According to a CEA official, there are several key issues identified in conducting an EIA.

• Variations in the ground reality: First, the socio-cultural settings and activities of various cities and towns differ, which create obstacles in proceeding with an EIA. 
• Unbending criteria: A case of policy vs. practice.  EIA criteria does not change from area to area. The criteria imposed by the Gazette notification sometimes poses a hindrance. For example, constructing any building 100 metres away from a Forest boundary requires an EIA. Regardless of how small the building is - even a single-storey house with five rooms that does not directly harm the so-called sensitive area - is listed as a prescribed project in the Gazette.

When contacted by The Daily Morning, architect and Senior Lecturer at the Moratuwa University’s Architecture Department, Dr. Janaka Wijesundara said that in most cases, projects are altered during the EIA process to make them more protective of the environment. "For instance, a hotel project intended for a sensitive area could be relocated to another area, or the materials could be changed," he said.

“The law is sometimes violated. Three years ago, the maximum height for buildings in Nuwara Eliya was three storeys. Now, it has gone up to nine or 10 storeys. There are some issues when it comes to putting these mandates into practice," he added.

Too many cooks 

The official further said that because many stakeholders are involved in a project, it is sometimes difficult to reach a consensus on the scope. "An environmental activist would say that the scope is too small, and the project proposer would say that the scope is too big," the official said. Additionally, the official noted that some large-scale development projects are almost impossible to navigate.

Inaccurate data

The CEA official said that sometimes, project proposers tend to include inaccurate data in the report. "Since the projects are very large in scale, we cannot evaluate every detail one by one." According to them, the National Environmental Act is to be amended with legal provisions to address those who provide inaccurate data to mislead the evaluation process.

Partial EIA 

Meanwhile, environmental lawyer, Dr Jagath Gunawardana, and environmental activist Sajeewa Chamikara raised concerns that even if the EIA for the Jaffna Stadium is currently taking place, it is being conducted for only a portion of the entire project. "Of the project, which consists of 138 acres, the EIA is being conducted for only 48 acres," Dr. Gunawardana said. "This is not a simple project. It is a sports city that they are building. Apart from the Cricket ground, there is also a golf course, a hotel complex, and shopping malls. Yet currently, the EIA is being done only for the Cricket Stadium. What about the rest of the project?" Chamikara questioned.

Economic delay vs. Environmental progress: A balancing act 

Furthermore, environmental economist Prof. Prasanthi Gunawardene raised concerns about the placement of the cost-benefit analysis within the EIA process, arguing that by the time an EIA is underway, such assessments are no longer practical. Conducting a cost-benefit analysis is not mandatory under the prevailing law within the EIA process, though proposals have been made to make it a mandatory component. According to Prof. Gunawardene, the cost-benefit analysis conducted at this stage does little to influence decision-making, as environmental considerations have already taken priority. "The cost-benefit analysis should be done prior to the EIA, ideally at the planning stage of the project," she said. When inquired as to whether the proposed Jaffna Stadium could be justified by the economic benefits that it would bring to the residents of the region, she stated that it would still constitute a violation of the regulations, given that it was executed prior to obtaining EIA based approval.

Conclusion 

As a country cannot sustain itself without ensuring a balance between economic and environmental well-being, the EIA process, which ensures that a development project does not affect the environment or minimises the harm, is undeniably a crucial and significant process. Despite its shortcomings, it was created to be inclusive, transparent, and efficient, with ample room for suggestions, alternatives, and alterations. On the other hand, while the process appears ideal on paper, in practice, it seems somewhat dysfunctional, as some aspects are overlooked in favour of others. Therefore, to maximise the outcome of the process, two significant needs need to be addressed: first, to identify the shortcomings within the process, review it, and fine tune it to match the needs of the day, and second, to establish a mechanism to ensure that, on the level of ground level practicality, the process is executed without any shortcomings. Whether these can be met will determine if the process ever truly delivers on its promise.

Attempts to contact the Environment Ministry Secretary, the Environmental Foundation Limited, the Wildlife and Nature Protection Society and the Institute of Policy Studies proved futile. Residents of the Mandaitivu Island who were contacted, declined to provide information without consent from other committee members on their committee.