INTRODUCTION

Purpose

The purpose of this paper is to seek Council Members' views on the findings/recommendations by the EIA Subcommittee on a review of the Subcommittee's operation.

Background

2. The Council at its 76th meeting held on 17 July 2000 agreed that the EIA Subcommittee (EIASC) should review its operation and report its findings to the Council in September 2000. The Subcommittee subsequently met on 26 August and 4 September to conduct a thorough review of its operation. It also took the opportunity to examine ways to enable the Council to better achieve its objectives in advising the Government on environmental issues. The findings and the recommendations of the Subcommittee are set out in the following paragraphs.

3. Subcommittee Members noted the increasing complexity of EIA reports that might be coming up. They also expressed concerns on its workload which had showed significant increase recently, e.g. the Subcommittee has to meet as many as three times in a month on one occasion to examine a particular EIA report. The Subcommittee's workload is expected to remain on the high side since many development projects are in the pipeline and the Council is required to advise DEP within 60 days upon receiving EIA reports. This could at times create difficulty for Members who might not be able to spare the time to attend meetings. At the same time, thin attendance may affect the quality of discussion and invite questions from the public or project proponents on the Council's advice to DEP. This is not a reflection of the efficiency of the EIASC, but rather the inability of the EIASC under the EIAO to schedule or regulate the submission of EIA reports for consideration.

4. As the workload of the Subcommittee is not expected to decrease in future, Members have considered the following options to address this issue-
   
   Option A - Invite more Council Members to join the Subcommittee
   
   
   1. To maintain one Subcommittee under the Council but to invite more Council Members to join. Members opined that this option is simple and has the advantage of involving more Council Members and hence a greater likelihood of attaining quorum. However, this option would not help relieve the Subcommittee's heavy workload.
      
      
   Option B - Set up two EIA Subcommittees
   
   
   1. In forming the two Subcommittees, one core group and one floating group would be created. All Council Members would be informed before their appointment that they would be required to take part in subcommittee work on EIA matters. On appointment, they would be asked to join either the core group or the floating group. The core group plus half of the floating group would form Subcommittee A while the core group plus the other half of the floating group would form Subcommittee B.
      
      
   2. The core group should as far as possible include representatives from major stakeholders e.g. green groups, business/trade associations and academics.
      
      
   3. Normally, the Subcommittees would meet once each month on an alternate basis. In other words, Subcommittee A would meet in the first month while Subcommittee B would meet in the following month. However, if there are too many EIA reports for one Subcommittee within a month, then the other Subcommittee would also meet in parallel within that month to examine EIA reports.
      
      
   4. Under this proposal, Members of the core group would take part in all meetings of the two subcommittees, i.e. on a monthly basis. Members of the floating group would normally only take part in Subcommittee work on a bi-monthly basis except when there are too many EIA reports for handling by one Subcommittee.
      
      
   5. As regards Chairmanship, the two Subcommittees could be chaired by the same Chairman or there could be separate Chairman for each Subcommittee. Some Members preferred to have one Chairman if possible so as to ensure consistency between the two Subcommittees. In addition, it is suggested that each Subcommittee should have a vice-Chairman who could deputize the Chairman in his/her absence.
      
      
   6. This option would increase the size of the Subcommittee and provide a mechanism to share out the workload. Furthermore, all Council Members would take a greater role in the EIA process which is crucial to the work of the Council. Nonetheless, this option would not reduce the workload of the core group or the Chairman if there is only one.

5. Members also considered the possibility of co-opting outsiders to the Subcommittee. However, this is not viable as Government's legal advice is that the function of the Council should only be lawfully performed by Council Members. Furthermore, it would run the risk of putting the advice of the Council under challenge. Having said that, the Subcommittee could invite professional experts to offer opinions on individual subjects although they could not take part in the deliberation process.

6. Members have also considered the following suggestions to refine the current modus operandi of the Subcommittee-
   
   
   1. the quorum for Subcommittee meetings should be five Members including the Chairman;
      
      
   2. in addition to declaring direct interest, EIA Subcommittee Members should declare indirect interest before deliberating on agenda items so that the Chairman could decide whether they should take part in the discussion or to vote;
      
      
   3. the confirmed minutes of the Subcommittee should be uploaded to the EFB website for public inspection;
      
      
   4. the attendance rate of Members may also be released to the public on an annual basis;
      
      
   5. whether Subcommittee meetings should be open to the public should be considered after a decision on this subject has been made for main Council meetings for the next term of office;
      
      
   6. to help Members in digesting the EIA reports, pink papers on EIA reports should as far as practicable highlight issues of concerns and include the views and comments of parties concerned, particularly those of the Environmental Study Management Group; and
      
      
   7. Subcommittee Members should be encouraged to submit written questions for the proponent's response and the latter should be made available to the Subcommittee not later than the Friday preceding the meeting.

7. At present, the Council and the Subcommittee are involved in three main stages of the EIA process, namely commenting on the project profiles, selection of EIA reports for submission to the Council, and commenting on selected EIA reports. Details are at Annex.
   
   
8. Having regard to the present mechanism, the Subcommittee considered and recommended the following to improve the EIA process-
   
   
   1. the Subcommittee's early and proactive involvement in the EIA process would bring more benefit to the system. The EIA study could address issues identified at an early stage for the proponent's attention;
      
      
   2. the Subcommittee should make greater effort in vetting project profiles. Consideration could be given to setting up an alert system whereby Subcommittee Members would be assigned on a rotation basis to vet project profiles and, where necessary, to alert other Members to comment on the profiles within the specified period;
      
      
   3. the Subcommittee's view should be sought when EIA study briefs are being drawn up. A thorough and well-defined study brief incorporating requirements of the Subcommittee would help address the Subcommittee's concern and ensure a smooth EIA process;
      
      
   4. strategic environmental assessment and planning studies should be made available to the Council which would then be able to keep pace with development in the overall context;
      
      
   5. Government should expedite the formulation of policies on energy, transport and conservation as these could help resolve controversies and assist the Subcommittee to examine EIA reports in the right perspective; and
      
      
   6. all proponents of public work projects should as far as practicable obtain approval of the EIA report before the gazettal of the projects concerned.
      
      

9. In addition, the Subcommittee considered that project proponents should be impressed of the need to produce EIA report of reasonable standard. In this regard, the Subcommittee was supportive of mechanisms to be set up by the administration, or by professional bodies such as the Hong Kong Institute of Environmental Impact Assessment to accredit environmental monitoring and audit professionals and to take disciplinary action against those who act improperly.
   
   
10. On mitigation measures, Members were concerned about the uncertainties of ecological compensation measures, the lack of fallback options and whether ecological losses should be compensated on area or function. Members agreed that proponent should compensate loss by area on a like for like basis first, and if that cannot be done, then the onus would be on the proponent to justify his proposed measures. Furthermore, proponent should pay more attention to potential environmental problems during construction phase around work sites and access roads.
    
    
11. In the case that DEP has to seek further information or clarification from the project proponent before a final decision is made, the Subcommittee noted that DEP is currently not empowered, under the current EIAO, to disclose the proponent's response to the public. The Subcommittee felt it is in the interest of ACE and the public to be informed of the response by the proponent and the basis of DEP's final decision.

12. Members discussed the quality of EM&A reports, how the findings could help the EIA process and proposed the following improvement measures-
    
    
    1. to require proponents to issue EM&A reports with a summary showing the frequency and the level and nature of exceedance;
       
       
    2. to require proponents, rather than contractors, to employ the EM&A personnel. This would enhance impartiality, independence and facilitate better monitoring on EM&A work; and
       
       
    3. to require proponents to make available EM&A reports for public inspection in electronic form to increase transparency and shorten the time lag between monitoring and reporting.

13. Other than the above, Members also made the following points-
    
    
    1. the Council should be provided with funding to seek expert and professional advice for examining EIA reports on highly controversial projects;
       
       
    2. public funds should be provided for Council Members to undertake visits overseas to enhance their understanding of environmental protection in other jurisdictions; and
       
       
    3. to ensure consistency and accuracy of information, a central database on ecological baseline information covering the territory should be set up and regularly updated for reference by parties concerned.

14. Members are invited to-
    
    
    1. evaluate Options A and B as proposed in paragraph 4 so as to relieve the workload of the Subcommittee;
       
       
    2. if Option B is adopted, to advise whether there should be one or two Subcommittee Chairmen;
       
       
    3. consider other proposals in paragraphs 6 to 12 to improve the efficiency and quality of the overall EIA process and the way forward; and
       
       
    4. forward those recommendations relating to the Administration to the Government for consideration.

ACE Secretariat
September 2000