DEFICIENCIES IN ENVIRONMENTAL LICENSIG PROCESSES AND CONSEQUENCES ON THE EFFECTIVENESS OF THEIR RESULTS
Wilfred Brandt & Sérgio Avelar
[ Other Publications ]
ABSTRACT
Some deficiencies are noticed in the environmental licensing processes in Brazil, basically concerning the technical limits required for the preparation of the mandatory documents that instruct them, specially the Environmental Impact Assessments and the Environmental Impact Reports (Estudos de Impactos Ambientais / Relatórios de Impactos Ambientais - EIA/RIMA). This work also studies the reassessment mechanisms of the environmental impacts foretold in the stages prior to the enterprise implementation, object of the environmental licensing process, after its effective implementation and full operation.
Based on 22 years of advisory given to environmental licensing processes in Brazil, one can notice that technical annalists and activists of Non-Governmental Organizations – NGOs usually perceive the “low quality” of the technical studies, if they are not developed based on extensive “primary surveys” on all range of parameters and variables that compose the biodiversity and the social relations of the environment, object of the studies. However, based on this very experience, accumulated in the development of environmental studies and which was considered sufficient to obtaining the license and the environmental feasibility certificate, it appears that the extensive primary survey required would have influenced little on the results of the “impact assessment”, if they had been valued in a “conservative” way. Besides, with or without the extension of the primary surveys, the "mitigating measures" proposed in a conservative way, would be basically the same to meet the objectives and goals of the control and mitigation program of the environmental impacts.
A “conservative assessment of impacts”, based on a “historical analysis and compilation of secondary data”, results in “maximum impact hypothesis of the enterprise”. Based on this maximum hypothesis, “mitigating measures equally conservative” must be indicated. In case the maximum hypothesis, due to lack of primary data or consistent historical information, implies in impacts in not allowable or acceptable levels by the applicable legislation and technical standards, or yet, implies in mitigating measures with unfeasible costs to the undertaker of the technical project; studies or surveys focused on the answer to these specific aspects must be proceeded, and must be detailed as required.
Another deficiency noticed is the lack of revisions to the EIA, both during the enterprise implementation and periodically, along its operation life. Without these reviews, it is not possible to confirm or measure the so-called “actual impacts” occurred, or the efficiency of the mitigating measures implemented. Therefore, it is not possible to take corrective procedures that promote effective results which are the main goal of the environmental licensing process.
KEY WORDS
Environmental Licensing
Environmental Impact Assessment
INTRODUCTION
It’s been some decades since the Environmental Impact Assessment (EIA) became the main decision instrument of the enterprise’s environmental feasibility. The work methodologies on this issue have developed greatly along this period and, at the same time, many distortions and many myths have appeared. This study discusses some of these distortions that led to important deficiencies in the environmental licensing processes, with consequences on the effectiveness of their results.
DEVELOPMENT
The Environmental Impact Assessment (EIA) is the main technical piece of the decision process on environmental feasibility of enterprises in the environmental licensing process. Usually, the more impacting and controversial the enterprise is, the more complexes the studies that compose the EIA and the requirements established in the licensing administrative process are. In this context, the analysts of environmental bodies and NGO’s usually question the EIA quality, which sometimes is a fact, because some of the main environmental impacts assigned to the enterprise have not been properly identified or assessed. However, in other cases, the questionings on EIA are often due to the incoherentor inconsistent form they are presented, in fact, indicate a technical or administrative ignorance of the process, or, even more seriously, an attempt to tergiversating on the fundamental analysis that must necessarily be made, which consists of the conceptual discussion of the enterprise project, controversial and impacting in its essence.
Some of the main deficiencies noticed in the development of the EIAs and in the environmental licensing processes will be discussed below. It is important to say that it is an exemplificative approach, it does not aim at exhausting the matter, but only to contextualize it.
Definition of the Assessment Area and the Influence Area for the Enterprise
A usual problem in developing and analyzing EIAs is to mistake the enterprise “assessment area” for “influence area”. Sanchez, 2008 (1) presents this matter in a very detailed form.
The assessment area must be defined in the beginning of the EIAs development. Hence, the methodology used in the assessments and surveys must appear in the beginning of the explanatory text. The assessment area may undergo changes during the EIA development works, as long as the specialists involved identify the need of studying an area bigger than the one initially established, if new information arising from the field surveys indicate the need of extending the area boundaries.
But, the enterprise influence area is according to the direct and indirect impacts. Therefore, it may be “bounded” only at the end of the works, after the performance of the environmental impact assessments. Thus, the definition of the influence area is a conclusion of the EIA, and must be presented at the end of it.
Even though this matter is obvious, the definition of the influence area is usually adopted in the beginning of the EIAs, mistaking it for the definition of the assessment area. Many times, the official Reference Terms of the licensing bodies reproduce this mistake, generating endless discussions on the enterprise influence in places where, in fact, should be included in the assessment area, but will not necessarily appear in the influence area after the impact assessments.
Conservative Assessments, Quality and Depth of the Diagnostic Studies
One of the most controversial and discussed matters in the environmental licensing processes refer to the “depth” of the required studies and surveys to generate the environmental diagnostic. It seems, by the requirements usually made by the environmental bodies that, in order to generate an environmental diagnostic that may reduce or settle any technical questioning, such diagnostic must be based on extensive primary surveys of the entire range of parameter and variables that compose the biodiversity and the social relations of the environment, object of the studies. Clearly, the more data and the better you know the environment, the more precise the diagnostic is and the foretold environmental impacts, in compliance with the project that will be implemented, can be assessed with smaller risks.
However, when the performance of conservative assessments of the environmental impacts is established as premises, the need of having detailed surveys on the environment becomes reduced. In a environmental licensing process, controversial by nature, sometimes it is more important to put the enterprise to be discussed by the society, through its mechanisms of publication, instead of postponing this discussion with the justification that more surveys are required on certain parameters, where it is already known that the impacts of such nature will occur, and the survey detailing will contribute very little to the clarification of the impact, its magnitude and will not change the required mitigation measure for its due control.
Then, the adoption of the “precaution principle” gets a strategic importance, where conservative criteria are adopted in the environmental impact assessments. Important to say that adopting the conservative criteria to the impact assessments does not mean creating a new methodology, but searching focus inversion on the technical discussions, which seems mistaken to us, since it gives an exaggerating importance to the surveys used to compose a diagnosis more and more quantitative and detailed in a number of parameters that comprise the mosaic of the biodiversity and social relations of the such environment. The focus should be on the impacts identification and assessment, deepening the multidisciplinary discussion and integrated to the specialists’ team listed for the studies, which, by the way, is not new.
When developing the impact assessment by means of conservative criteria, there is nothing to say about "EIAs quality” as to the diagnostic level depth. What there is to say is about the “quality of the impact assessments”. Thus, when the assessments are based on the most conservative hypothesis, for each environmental aspect considered, based on the knowledge available on the assessments area, the discussion becomes more focused on the need, or not, of deepening the studies in specific aspects that are eventually not answered yet.
Exemplifying: In an area to be changed due to the implementation of a certain enterprise, there is an environment where there is a rare, endemic or endangered species. Even if an intense seasonal field survey is performed, and this species is not registered in the area, it is not possible to assert that it does not exist there or at least that it will not eventually live there. So, a detailed survey would influence very little on the impact assessment which, being made with conservative criteria, would consider that it is the environment of this rare specie. Instead of investing a huge effort on the primary surveys, to conclude that “it is not possible to conclude” if there is or there is not the species there, it is assumed that, if the environment is adequate for that specie, the impact assessment will consider that the specie exists or will eventually exist there and, therefore, a specific program will be necessary to protect and monitor it – such program would be proposed anyway after extensive primary studies.
This aspect, by the way, is very important: in most of the cases, with or without extensive surveys of primary data, the mitigating measures proposed would be the same, for example, “fauna saving programs”, “archeological saving programs” etc.
Within this context, it is perfectly acceptable to perform a conservative impact assessment, based exclusively on the secondary data and on short term visits to the assessment area. This assessment will result in a maximum impact condition that the enterprise can potentially generate. Based on these impacts, it will be possible to indicate equally conservative mitigating measures.
If, at the end of this assessment, non-mitigable aspects are identified in levels not allowable or acceptable according to the legislation and pertinent technical standards, or, mitigating measures with costs considered unfeasible to entrepreneur are required, then, only for these specific aspects, detailed studies or surveys will be proceeded, specifically focused to answer very objective questions, which aim at confirming or not the assessments made and the proposed programs.
The Flowchart below represents the impact conservative assessment process, with a diagnostic based on secondary data and deepening of studies and surveys on specific subjects. This flowchart was adjusted as from concepts proposed in the publication named “Good Practice Guidance on Health Impact Assessment” of ICMM (2).
As seen in the flowchart, in order to perform the first impact assessment stage, available information on the environment to be changed by the enterprise are searched, and a recognition visit is made, with the participation of a multidisciplinary team of specialists.
In order to ensure a conservative assessment, it is recommended to adopt the specialist’s opinion method, involving professionals with large experience, academics or even representatives of the civil society, especially NGO’s. Thus, it is possible to ensure that all possible hypotheses have been really considered and the study has exhausted the impact possibilities the enterprise may eventually cause.
Only in the event of non-mitigable impacts, of such magnitude that jeopardizes the environmental feasibility of the enterprise, are identified, or, if programs that are considered economically unfeasible to the enterprise are required, the deepening of the studies is indicated, specifically to have objective answers to these matters. Another alternative, that may release certain deepening studies of the environmental diagnosis, consists on the undertaker decision of changing his project and the enterprise concepts, on the particular aspect. Then, a second stage of the impacts assessment and the proposition of mitigating measures are made, considering these additional information. It is important to emphasize that the number of impact assessment meetings must be as many as required, according to the aspects clarification, with the discussions on environmental and economical feasibility and the time terms involved in the project being analyzed.
Unfortunately, it seems that the concepts being reviewed here have been lost and misinterpreted with time and the practice has not been verified in the environmental licensing processes. There is a constant increase of requirements provided in the Reference Terms of the licensing bodies, which often specifies in details the methodologies to be used in the primary surveys, assuming, therefore, that the Impact Assessments can only be performed after an alleged exhaustion of all the knowledge on the assessment area, as if it could actually be made.
Reviews of the Environmental Impact Assessments
The environmental impact assessments, when presented in an EIA developed for the instruction of a prior environmental licensing, are prognostics based on hypothesis, even when made based on already existing similar cases. Thus, it is essential that these hypotheses are confirmed or not. Even more important, it is necessary to know the actual magnitude of the impacts occurred, and the efficiency of the mitigation measures applied.
So, it is absolutely necessary that the EIA is reviewed and adjusted to the reality presented in the enterprise project, at least in two moments:
• during the enterprise implementation, to assess the real impacts of this implementation and the efficiency of the mitigating measures adopted;
• after the beginning of the enterprise operations, with the same purposes.
It is important to continue the reassessments for the entire life of the enterprise.
Specifically in case of enterprises with a productive life that can be defined, as for example, the mining enterprises, there is a third moment of environmental reassessment, upon the activities closing and ending, after the exhaustion of the mining reserve.
In Brazil, as in many other countries, the environmental licenses have a validity term, and it is necessary to renew it. But, in a mistaken way, as we see it, this renewal is not accompanied by a requirement of an EIA review. In Brazil, for instance, it is usual to use other environmental license renewal instruments, as for example, the Environmental Performance Assessment Reports (Relatórios de Avaliação de Desempenho Ambiental – RADAs). These documents are important as information and statistics generators for the environmental bodies, but do not exempt the EIA review, which has an essential role for the effectiveness of the assessment process and the mitigation of the real environmental impacts of the enterprise.
Environmental Constraints and Compensations
Another aspect that became a routine in the environmental licensing processes is the determination of measures, by the competent agent of Environmental Constraints and Compensations, that have not been established based on concepts and fundaments for which these measures must be applied to.
By principle, the Environmental Constraints consist of the commitments and guarantees the entrepreneur must take, based on his project and on the mitigating programs and measures foreseen in the environmental assessments; such commitments and guarantees must be necessarily taken, either by force of the standards and limits foreseen in standards and laws, or due to the Objectives and Goals sought for the mitigation of the prognosticated environmental impacts. However, it is observed that Environmental Constraints are established, which represent nothing more than the other Mitigating Actions and Impact Control, inserted in the licensing process with specific objectives and sometimes entirely strange to the analysis set comprised in the technical document that aids the administrative process. Due to the specificity of the established Constraints and the interests that brought them to the process, these Constraints often become the main environmental compliance checking basis of the enterprise, if not the only one, in the inspection or review of the environmental licenses, despite the fulfillment checking of the proposed plans and programs or even the several recommendations comprised in the mitigating measures proposed in the environmental assessment (EIA).,
The Environmental Compensations, on the other hand, are actions objectively related to the compensation of non-mitigable impacts, identified in the environmental studies, i.e. actions specific and directly related to also specific impacts, clearly identified with the objective. However, it is also possible to notice that the compensation for an environmental non-mitigable impact becomes an “exchange currency” or even a “form of payment” for the administrative act of granting the environmental license with the compensation not being established with technical basis to compensate the non-mitigable impact. In this practice, for example, a non-mitigable impact on the fauna is exchanged for the street pavement of the city affected by the enterprise.
Thus, both for the entrepreneur and the environmental body, the fulfillment of the Constraints and the “settlement” on the Environmental Compensations form will be conducted so as to certify the regularity and, therefore, the environmental feasibility of the enterprise, with the environmental assessments and their analysis, conclusions and recommendations being filed.
CONCLUSION
It is necessary to discuss again the EIAs role in the environmental licensing process. It is necessary, in particular, to consider the focus and the effective content of these EIAs.
Deep and detailed environmental diagnostic assessments, which intend to exhaust the environmental knowledge, will not guarantee the safety required to the decision on the environmental feasibility of enterprises. The main focus of the EIAs can not be the diagnostic, but the impact assessment and the proposition of mitigating measures. If this assessment is conducted in a conservative manner and using the precaution principle, the diagnostic deepness level is reduced.
More important than the impact assessment itself, performed upon the initial licensing of the enterprise, is the EIA review, at least during the implementation and after the beginning of the enterprise operation. Only through this review it is possible to confirm the nature and magnitude of the real impacts generated by the enterprise, as well as the efficiency of the mitigating measures adopted. The simple checking of the constraints and compensations fulfillment does not give the required safety to the licensing processes and enterprise control.
Thus, the results effectiveness of the environmental licensing is on the establishment of the focus, which is the impact assessment and the proposition of mitigating measures, as well as its periodic reassessment and follow-up.
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