GIVEN the public opposition against Lynas Corporation‘s proposed rare earth processing plant in Pahang, it is timely to revisit the due process that is supposed to govern the inception of such projects. How did the public come to know about the project so late after federal approval had already been given for it? Can public input at this stage change the outcome, or has the decision already been made?
Malaysia had actually made a commitment to prevent such a lack of transparency. In 1992, at the Rio Earth Summit, the nations of the world agreed upon a plan to slow, and hopefully halt, environmental degradation, loss of biodiversity, and climate change. Malaysia was there, and signed the Convention on Biological Diversity (CBD).
One of the principles of the CBD, Principle 10, was on the right to access environmental information. This principle has three pillars: public participation in decision making, the right to access environmental information, and the right to environmental justice. Unfortunately, Malaysia’s implementation of this principle – as with many other parts of the convention – has been halfhearted at best.
There is no price tag to clean air, to clean water, or to an atmosphere free of contamination by radiated materials. On the other hand, there is a lot of money to be made in contaminating the air or water. This has been used as justification by regulatory agencies such as the Department of Environment (DoE) for turning a blind eye to factories breaking the law. No less than a former director-general once said that although the DoE was aware of factories illegally polluting rivers, it could not take action due to the “economic contribution” of these factories.
This betrays a significant problem. Whether due to corruption or short-sightedness, we are mortgaging our communal health and well-being for short-term corporate, individual profit – even when it breaks the law. This benefits the rich, the well-connected and the powerful at the expense of the average Malaysian – specifically what Principle 10 of the convention aims to address.
EIAs: Truly independent?
In Malaysian law, one way we have attempted to put this principle into practice is through the Environmental Impact Assessment (EIA). The point of conducting an EIA is to give the environment some weight in development decisions, and to ensure that any development is beneficial overall, not just in terms of the monetary costs. To actually achieve this, the process should be independent, transparent, and it needs to have some clout. Projects that have an overwhelmingly adverse environmental impact should be shelved.
Our EIA process fails in all aspects.
An EIA is conducted for a proposed project. Take, for example, the need for additional sources of clean water for Kuala Lumpur. The responsible government agency (the Public Works Department, for example) could initiate an EIA to discover the best way of meeting the perceived need. At the same time, it could assess the urgency of meeting that need, and plan how to meet any growth in water demand over a longer time frame in the most economically, socially and environmentally beneficial ways. This would allow for the impartial weighing of options, rather than being biased towards a particular project from the outset.
There is also a lack of independence because the consultant conducting the EIA is chosen and paid by the project proponent. If the consultant finds that a project is an environmental nightmare, and recommends that it should not continue, their wage controllers are going to be unhappy.
And there is a lack of clout: while consultants have to be registered with the DoE, there is little that the DoE can do to ensure that project proponents do not put undue pressure on the consultants to make the report favourable to the project, rather than ensure an impartial assessment of environmental (and social) costs and benefits.
These problems can be fixed by a review of how consultants are appointed. Rather than having the proponent directly appoint a consultant, appointments could be made by the DoE, to whom the consultants should be answerable. The proponent would still pay for the report, but through the department. This could help protect the consultant from pressure to downplay any environmental costs of the proposed project.
This would also provide the DoE with greater powers of oversight in the completion of the report. A number of types of projects, such as dams and power plants, have detailed guidelines on how the EIA should be conducted. Such details include the types of questions that should be asked and the types of mitigation that are considered acceptable.
These guidelines are reasonably stringent and potentially have the force of law. If the DoE was directly overseeing the completion of a report, it could insist on the higher standards that already exist in the guidelines.
What public participation?
Another concern is the transparency of the review process. While any detailed EIA has to be open for public comment, and most EIAs are now available electronically, there is no guarantee that public comments will be acted upon or taken into consideration.
Public feedback is only considered if it specifically addresses the EIA report, not if it merely raises general concerns about a project. Feedback is only invited in the final stages of the report, when the proponent company has already invested in the project. And there is no mechanism for holding the review panel accountable for accepting or rejecting an EIA report, or even for discovering the recommendations that the panel makes.
To ensure that we, the Malaysian public and taxpayers, are not bearing the brunt of private profits, and to meet our international obligations to the environment and future generations, we need to review the weight we give to environmental considerations and how we define development.
More money is worthless if our land, seas and rivers are poisoned, and if our population suffers from radiation and chemical poisoning. One step towards doing this would be to revisit Principle 10 of the CBD, and ensure that we are doing all we can to allow access to environmental information and environmental justice.
Sonia Randhawa is the co-author of A Haze of Secrecy, a book about access to environmental information in Malaysia, and is a director of the Centre for Independent Journalism.