The New Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 2015: Taking Another Look at the New Changes
08 December 2015 | Source: MLTIC News
The new Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 2015, P.U. (A) 195 ("2015 Order") published on 28 August 2015 revoked in its wake the old 1987 Order under the same name. This was said by the Minister of Natural Resources and Environment in an interview, to be part of the government's preventive strategy to ensure that more development projects take into account environmental factors, and are subject to an Environmental Impact Assessment ("EIA"). We can project from what was said that one of the primary objectives of the 2015 Order would be to ensure that more development projects become subject to an EIA. In this article, I propose to consider if it in fact does.

What is an EIA Procedure?

Under section 34A of the Environmental Quality Act 1974 ("EQA"), should a project proponent's activities fall within what is defined under Order 2015 as a ‘prescribed activity', those activities would require an EIA report to be written and submitted to the Director General of Environment, before it can be carried out (see section 34A(2) and (6) EQA).

An EIA report is primarily an aid to environmental planning for new development projects. Its objective is to (amongst others) predict significant environmental impacts of the proposed project, identify the environmental cost and benefit of such a project, and propose mitigating and abatement measures.

Under the 2015 Order, section 3(1) state's that activities falling under "the First schedule and Second schedule are prescribed activities". It goes on further to state under section 3(2) that prescribed activities under the First Schedule do not require public display and public comment unless otherwise instructed, in writing, by the Director General. Whereas prescribed activities falling under the Second schedule are mandated to have public display and public comment (section 3(3)). What is public display and public comment is defined as a "display of a report, at a place and within the time determined by the Director General, to obtain public comment in relation to that report" (section 3(5)).

What this means is that under the 2015 Order prescribed activities that require an EIA report are now divided neatly into two - those activities that require information of its project to be made available to the public for comment, and those that do not.

Does the 2015 Order apply to the whole of Malaysia?

The provisions of the 2015 Order in general apply to the whole of Malaysia, taking its authority from the EQA section 1(1). However, there are certain limitations in terms of its application to Sabah and Sarawak.

Section 4(1) and (2) of the 2015 Order states that it shall apply to Sabah and Sarawak in respect of the prescribed activities as specifically expressly in the Order. For prescribed activities not listed under the 2015 Order: these will be governed by state legislations and state EIA processes.

What changes have been introduced?

The 2015 Order lists 21 key activities that fall under the First Schedule and 17 key activities that fall under the Second Schedule, with many further sub-activities listed under both schedules. A quick comparison to the old list (under the 1987 Order) containing just 19 key activities with its individual sub-activities, suggests that the increase in the number of prescribed activities falling within the purview of the EIA has been substantial.

It has also introduced several positive changes, amongst these are -

• It recognised the need to expressly provide protection for environmentally sensitive areas. Environmentally Sensitive Areas ("ESA") are defined under section 2 of the 2015 Order to mean "any area specified as such in the development plan or national physical plan under the Town and Country Planning Act 1976".

Previously, project proponents were encouraged not to select a site located in or adjacent to any sites deemed to be an ESA, such as wetlands, protected areas, turtle landing sites, forest wildlife corridors, and marine parks. However this requirement is listed under the "EIA Procedure and Requirements in Malaysia" (last revised in October, 2007) document issued by the DOE (amongst others) as a guide to assist in the writing of EIA reports.
The legal position of such guidelines, if it is legally mandatory, has long been the subject of academic discussion and existing case law has not made it any clearer. As such, the insertion and recognition of ESA into the new Order 2015 has given such sites legal weightage (and indirectly, better protection).

Similarly, the 2015 Order defined and made public display and public report mandatory (although only for prescribed activities under the Second Schedule). Again, this has made the requirement to do so a legal one. Previously under the 1987 Order, requirements for public participation were found under "A Handbook of Environmental Impact Assessment Guidelines", a booklet produced by the DOE to primarily assist project proponents in the preparation of EIA reports; and have often been contended as not binding or having no legal effect. Although in practice, there has been a general adherence (to some extend) to this requirement.

• It has, under section 3(4)(a) and (b) removed the problem of parcelling out land to evade EIA requirements, which has long been a key area of weakness under the 1987 Order.

• It has also expanded on certain items and added prescribed activities that were previously not provided for - As an example, key prescribed activities such as new township, and road developments were expanded on with additional details inserted, while development in slope areas and pig farming activities were added.

Taking another look

The 2015 Order seem to have met its primary objective, to ensure that more development projects become subject to an EIA and have certainly improved on some of the existing weaknesses as demonstrated above.

Still, one has to ask: do more key activities listed equate to more projects being subject to an EIA process? Comparing the two it is clear that in both the 2015 as well as the 1987 Order, the types of development projects listed are similar. Most of the key activities from the 1987 Order are retained (such as Agriculture, Forestry and Fisheries) while others were renamed (as an example: Airport to Aerodrome). Similarly, many of the prescribed activities once listed as a sub-activity (under a key activity) have been re-designated and given their own heading or alternatively, been re-shuffled under another heading. As an example, under the 1987 Order, the construction of dams and hydro-electric power schemes were listed under the key activity titled Power Generation and Transmission (Item 13) and Water Supply (Item 19); today under the new 2015 Order it has been promoted and is listed as a key activity titled Construction of Dam (Item 15, Second Schedule). Similarly, under the 1987 Order, Transportation as a key activity, was concerned with only the construction of mass rapid transport projects, however under the Second schedule of the 2015 Order, this prescribe activity now has two subheadings - (a) and (b). Yet if you take a second look, both these activities are not new additions; both were already provided for under the 1987 Order under different headings (Transportation and Railways).

As such, no new addition to or extension in terms of the types of development projects that should now be subject to an EIA are present; save for those already mentioned above. Other possible types of industries (also seen in the EIA requirements of other jurisdictions) could have been inserted into the 2015 Order; industries that have a growing presence in Malaysia such as poultry farming or paint manufacturing. The 2015 Order is a missed opportunity in increasing the number of different types of industries or developments that the DOE could have considered as needing an EIA, given the degrees of and varying types of pollution these industries could produce. The old 1987 Order lists industries that were perhaps key industries in the 1980's, 28 years later, that list sadly remains relatively similar even though the types of industries have expanded in length and breath.

Beyond considering how much more the 2015 Order could have done, is how much the 2015 Order could now do to the existing environment. While there are many positives, certain key weaknesses remain imbued in the 2015 Order and certain provisions have failed to see the big picture. One such glaring example can be seen under item 20 of the First Schedule, that expressly provides that the construction of expressways, highways or roads, tunnel or bridges traversing or adjacent or near to an ESA requires an EIA but does not mandate that the public is informed or that information is made available.

The need for an EIA for this type of activity is very important given the effect its construction could have. Building of a road on or near such areas might gravely affect wildlife, demarcate forested corridors cutting off their habitat, encourage an increase in wildlife-human contact, or decrease the survival of specific species. Sharing of information between stakeholders and project proponents encourages discussion with affected communities, improves existing knowledge and considers local concerns; all of which could benefit the project and the environment in the long run.

Given that a large number of wildlife species in Malaysia are presently on the IUCN Red List of Threatened Species, it is certainly a concern that should be highlighted. It is a concern that should have mandated that information on these projects be made available to the public.

While the 2015 Order has added positively toward the protection of the environment, there continues to be much room for improvement.

For a copy of the 2015 Order -
http://www.malaysianlaw.my/general/legislation/environmental-quality-prescribed-activities-environmental-impact-assessment-order-2015-MY13499.html

To read the Minister's statement, see "EIA Order 2015 at Gazetting Stage - Wan Junaidi", 14 August 2015, Borneo Post Online -
http://www.theborneopost.com/2015/08/14/eia-order-2015-at-gazetting-stage-wan-junaidi/

Notice: The Publishers of MLTIC acknowledge the permission granted by the relevant official/original source for the reproduction of the above/attached materials. You shall not reproduce the above/attached materials in whole or in part without the prior written consent of the Publishers and/or the original/official source. Neither the Publishers nor the official/original source will be liable for any loss, injury, claim, liability, or damage caused directly, indirectly or incidentally to errors in or omissions from the above/attached materials. The Publishers and the official/original source also disclaim and exclude all liabilities in respect of anything done or omitted to be done in reliance upon the whole or any part of the above/attached materials. The access to, and the use of, MLTIC and contents herein are subject to the Terms of Use.