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EIA SYSTEMS – LEGAL AND INSTITUTIONAL ARRANGEMENTS

Many developing countries and countries with economies in transition are attempting to strengthen and
consolidate their EIA systems. These reforms are part of broader trends in EIA, and take place against a
background of political and economic change including processes of globalization through which trade;
capital and investment flows are integrating national economies into a single world market. Globalization
often accelerates economic growth and increases environmental deterioration in developing countries, and
thus has important implications for the use and development of EIA. These effects and implications in
turn differ across and within developing regions and countries depending on their level of development,
dependence on natural resources and other factors. Many developing countries face financial, structural
and resource constraints on introducing and instituting EIA arrangements. The following realities are
common, especially among poorer countries:
1. Limited public involvement in political decision-making;
2. Restricted access to “central” political decision-making processes, especially for rural/isolated
communities;
3. Little awareness of the importance of environmental management and sustainable development
amongst government sectors and the public;
4. Inadequate institutional and legal framework;
5. Weak enforcement of laws and regulations; and
6. Poor coordination between agencies at the national level and between national and local levels.
A systematic, long term commitment will be necessary to overcome the limited EIA capacity of
developing countries that have some or all of the characteristics listed above.
KEY ELEMENTS IN THE DESIGN OF EIA SYSTEMS
Below is a summary of the main factors to be considered when introducing or amending an EIA System:
1. Political support and commitment;
2. Legal basis with accompanying regulations and guidelines;
3. Provision for public involvement;
4. Coverage of proposed actions likely to have significant environmental effects;
5. Designated process and procedures, including mechanisms for review of the quality of EIA
reports;
6. Measures to ensure compliance and accountability by competent authorities and decision making
body;
7. Appropriate role for environmental agency in EIA process administration and decision making;
8. Technical and professional capacity to carry out EIA.

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These can be thought of as “foundations or enabling conditions” for EIA good practice and effective
performance. An EIA system with the characteristics listed will not necessarily or always achieve those
ends, but certainly little will be achieved unless they are in place. When designing and implementing EIA
systems, these elements should be considered together as a package. In combination, they provide a set of
institutional controls and procedural “checks and balances” that can build quality assurance into the EIA
process.
EIA ARRANGEMENTS
EIA legal and institutional frameworks established by developing countries should conform or correspond
to internationally accepted principles and points of reference as described in this section. The specific
detail and content of legislation should take account of the policy and institutional values and realties in
the country concerned. The provision for EIA should be based on legislation which is clear and explicit as
to the nature and scope of application and the type of approach to be taken.
At a minimum, EIA legislation, together with any supplementary regulations, should specify the
following (Sadler, 1998):
1. Area and aspects to be covered - which proposed actions and impacts shall be assessed?
2. Requirements and procedures - how shall the EIA process be administered and applied?
3. Responsibilities and duties - what must or may be done by proponents, competent authorities and
decision-making bodies?
4. Relationship to decision-making — how shall the EIA process be used in approval of proposed
actions subject to review?
5. Compliance and enforcement - what steps and measures are to be taken in the event that due
procedure is not followed in carrying out the EIA or implementing terms and conditions of approval?
EIA IMPLEMENTATION – FACTORS AND CAPABILITIES

For all countries, the real test of EIA legislation lies in its implementation, how well the requirements and
procedures work in practice. In developing countries, particular attention needs to be given to the factors
that assist or impede EIA implementation, taking account of those described below. Even where EIA
legislation and procedure are well founded, it does not ensure effective implementation. The issues of
EIA implementation are particularly acute in developing counties where EIA institutional and technical
capabilities are limited. At a basic level, effective EIA implementation depends on a functioning legal
and government system and the availability of people with the necessary expertise. Key factors include:

 High-level political commitment;

 Budgetary and resource support;
 Public trust and involvement;

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  Appropriate environmental policy framework;
 Institutional arrangements for cross-sector environmental accountability;
 Personnel with core managerial and technical competencies to:
– administer the EIA system;
– conduct EIA studies;
– prepare and review EIA reports; and
–undertake supporting research, training and professional development activities.
Generally, EIA implementation in developing countries appears to work best if legal and institutional
arrangements have evolved gradually through an “organic” process, rather than one “imposed” from
outside. This approach will be most successful when it is based on pilot testing and experimentation to
foster cross-sector familiarity with EIA, initially based on non-statutory procedure. In this way, a locally
adapted EIA system can be developed that has support amongst those who will have to implement it. The
result is an EIA system that has emerged from the “bottom towards the top” rather than from the “top
towards the bottom”.
In many developing countries, EIA capacity building also needs to address societal factors including lack
of public concern for the environment. Legal and regulatory instruments, by themselves, are insufficient
to create the basis for effective EIA implementation. Recently, the World Bank and other international
lending and aid agencies have given increasing attention to societal instruments to promote environmental
reforms, especially in the EIA process. In other developing countries, mobilizing public support for and
engagement in the EIA process will require a long-term commitment to democratization, better education,
empowerment of women and strengthening civil society.
APPROACHES FOR MAKING THE EIA PROCESS EFFECTIVE
The problems of EIA implementation experienced by both developed and developing countries have
drawn increasing attention to the effectiveness of the EIA process and the procedures that are followed
when applying it. The term effectiveness refers to whether or not the EIA process and its main
components work as intended. The particular emphasis is on four components that are central to
administering and implementing the EIA process, namely:
1. Self-directed assessment by development proponents and agencies;
2. Oversight of EIA implementation by a designated body;
3. Guidance on conducting EIA in accordance with legal and procedural requirements; and
4. Public involvement including measures related to availability of information and opportunity to
comment on the content of EIA reports and documentation.

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In combination, these components comprise what may be termed the administrative machinery for
delivering the principles of EIA process design and implementation that have gained a measure of
international acceptance.
Guiding principles of due process and EIA administration (adapted from Sadler, 1996).
1. Responsive - appropriate and timely opportunities for the public to be informed and heard
2. Efficient - minimum time and cost burdens on proponents and participants, consistent with
meeting accepted requirements and objectives of EIA
3. Equitable - fair treatment of all participants, without bias toward or against any party
4. Transparent - open and accessible process, with clear, easily understood requirements
5. Accountable - parties are responsible for their actions, in compliance with process requirements
6. Certain - guidelines and timelines followed, with any variance subject to authorization by the
administering body
7. Pragmatic - flexible application of the process, adapting it to the proposal, potential impacts and
purpose of decision-making
8. Credible - the process is implemented objectively and administered impartially
The abovementioned principles describe what is sometimes called due process and also comprise
attributes of procedural effectiveness for EIA systems. Approaches to instituting these principles or
attributes are outlined with reference to the four components above. Particular consideration is given to
measures that can strengthen these mechanisms immediately and cost effectively. These are understood to
be administrative amendments that can be made under the existing EIA legal and regulatory framework.
EIA Process Administration
Typically, a separate agency is established or designated to oversee compliance with EIA legal and
procedural requirements. This administrative body has an important role in reinforcing accountability and
should be fair and consistent in its interpretation of rules and requirements. The implementation of EIA in
accordance with the arrangements that are in force represents a benchmark of procedural effectiveness.
An administrative entity, which operates separately or independently from any other agency, has an
important role in this regard. An administrative body’s primary responsibility is to ensure the EIA process
is carried out in compliance with the provisions made in law and regulation. This oversight role can be
demanding. It requires the EIA administrative body to be impartial and even-handed in carrying out its
defined functions and duties.
Depending on the type of regime, an EIA administrative body can have one or more of the following
functions and duties:
1. Preparation of regulations and guidance;
2. Ensuring uniform and consistent EIA implementation;

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 3. Providing procedural advice and direction including on issue resolution;
4. Registration of EIA reports and documentation;
5. Public notification and information related to the EIA process
6. Issuing or approving terms of reference for EIA;
7. Overseeing or facilitating stakeholder involvement, for example formal public hearings on
draft/final EIA reports;
8. Review or approval of EIA reports
9. Promoting EIA good practice;
10. Issuing an environmental approval or terms and conditions without which a project cannot
proceed;
11. Supervision or inspection of EIA-derived environmental management plans for project
implementation; and
12. Carrying out EIA audit and follow up studies.
2. THE EIA SYSTEM IN ETHIOPIA
Prior to becoming a legal requirement in 2002, the application of EIA in Ethiopia was introduced by a
few sectors. The practice of contemplating environmental and health impacts was introduced as early as
1980 into water resources development projects assisted by UNDP/WHO, though the main focus was
limited to water-related and water-based health problems (Solomon, 2006). This practice then evolved
into a formal requirement in international donor assisted and financed projects in various sectors. The
former Ethiopian Valleys Development Authority was the first national institution to incorporate EIA into
its activities. The authority developed its own specific guideline for the application of EIA in pre-
feasibility and feasibility studies of potential medium-scale irrigation projects (Solomon, 2006). Even
though these efforts were limited to the irrigation sector and narrow in scope, and despite that they were
donor-driven, they have nonetheless contributed to the emergence of the system of EIA that exists in the
country at present.
Policy Framework for EIA

Until 1997, Ethiopia did not have a comprehensive environment policy as such. The Environmental
Policy of Ethiopia, which was issued in 1997, provides overall guidance in the conservation and
sustainable utilization of the country’s environmental resources in general. The general objective of the
environmental policy is to promote the sustainable social and economic development of the country
through, inter alia, sustainable management and utilization of the natural resources of the country. The
specific objectives of the environmental policy, among other things, ensures the conservation,
development and sustainable use of essential ecological processes and life support systems, biological
diversity and renewable natural resources; and the empowerment and participation of the people in

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environmental management. The environmental policy lays the foundation for EIA in the country. In
section 4.9, the environment policy stipulates the country’s policies regarding EIA. It provides for the
enactment of a law which requires that an appropriate EIA and environmental audits be undertaken on
private and state development projects; and the development of detailed technical guidelines that direct
the undertaking of EIA and environmental audits in the various sectors. It also provides for the
establishment of an institutional arrangement responsible for undertaking, coordinating and approving
EIA and the subsequent environmental audits. Furthermore, the environmental policy determines the
scope and key elements of the EIA process. It states that EIA should consider not only physical and
biological impacts, but also address social, socio-economic, political and cultural conditions; and that
environmental audits should be undertaken at specified intervals during project implementation to ensure
compliance with terms of EIA authorization. It also state that environmental impact statements should
always include mitigation plans for environmental management problems and contingency plans in case
of accidents; and that the EIA procedure should provide for an independent review and public comment
on environmental impact statements before they are considered by decision-makers. While the
environment policy provided the policy basis of EIA process in the country, it has one major limitation: it
does not subject public instruments to the EIA requirement.
LEGAL FRAMEWORK FOR EIA
The FDRE Constitution
Being a supreme law of a land, a constitution provides the basic framework on which detailed laws shall
be developed for various sectors. The 1995 Constitution of the Federal Democratic Republic of Ethiopia
contains provisions that support the enactment of EIA legislation. In this regard, it stipulates that the
design and implementation of development programs and projects in the country should not damage or
destroy the environment; and recognizes the right of the people to be consulted and express their views on
the planning and implementation of environmental policies and projects that affect them (Art. 92). In
addition, the constitution recognizes the right of citizens to live in a clean environment, and, where they
are displaced or their livelihood has been adversely affected by the development projects undertaken by
the government, the rights to get commensurate monetary or alternative compensation, including
relocation with adequate state assistance (Art. 44). These provisions provide a perfect constitutional basis
for the development and implementation of an effective EIA process.
Environmental Impact Assessment Law

Following the provisions of the environment policy, the Ethiopian government introduced the
Environmental Impact Assessment Proclamation (Proclamation № 299 of 2002). The proclamation
requires an EIA process for any planned development project or public policy which is likely to have a
negative impact on the environment. With regard to development projects, the proclamation stipulates

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that no person shall commence implementation of a proposed project identified by directive as requiring
EIA without first passing through EIA process and obtaining authorization from the competent
environmental agency (Art. 3(1)). In line with this, project proponents must undertake EIA and submit
the report to the concerned environmental body, and, when implementing the project, fulfill the terms and
conditions of the EIA authorization given to them (Art. 7). Moreover, the proclamation allows for the
imposition of a fine between 50,000–100,000 birr on any project owner who commences implementation
of a project without obtaining authorization from environmental agencies or who makes false presentation
in the environmental impact assessment study report (Art. 18). Furthermore, the proclamation obliges
licensing institutions to ensure that the relevant environmental bodies have authorized the implementation
of the projects prior to issuing investment permits or operation license to projects, (Art. 3). In addition, it
requires such licensing institutions to suspend or cancel the permit or license they have issued for projects
where the concerned environmental body suspends or cancels the authorization given for implementation
of the project (Art. 12). These provisions are important to ensure that project owners comply with the EIA
requirement. The proclamation also provides for public participation in the environmental impact
assessment process. It requires environmental bodies to ensure that the comments made by the public (in
particular the comments by the communities likely to be affected by the implementation of a project) are
incorporated into the EIA study report as well as into its evaluation (Art. 15). To this end, it requires
environmental bodies to make any EIA study report accessible to the public and to solicit comments
thereon. The proclamation also requires public instruments, which are identified by directive as requiring
EIA, to pass through EIA process prior to their approval. In line with this, it obliges government organs
to ensure that their policies have passed through EIA process prior to their submission for approval (Art.
13). Having provided the basic framework of EIA, the proclamation envisages the issuance of specific
directives and guidelines that further specify implementation of the EIA process. Particularly, it requires
the Environmental Protection Authority (EPA) to develop a directive identifying categories of projects
likely to have negative impact and thus require EIA (Art. 5). It also requires EPA to issue of guidelines
that determine the elements necessary to prepare and evaluate EIA study report (Art. 8). The
Environmental Protection Authority has already developed such draft directives and guidelines but they
have not yet been formally adopted and put into force.

3. SECTORAL LAWS RELEVANT TO EIA

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It has been recognized that activities in the various economic sectors have the greatest impact on natural
resources in particular and the environment in general. Accordingly, integrating EIA into the laws,
regulations and decision-making process in such sectors is crucial.

Business Law

The licensing and operation of business activities in the country at present are regulated by the Trade
Registration and Business Licensing Proclamation (Proclamation № 67/1997). The proclamation requires
that any commercial activity should be undertaken in compliance with environmental protection
regulations. It regards the observance of environmental protection laws both as a pre-condition for
issuance, and the ground for suspension and revocation of, a business license. Article 22(2) of the
proclamation requires presentation of a certificate from environmental agencies to the effect that the
intended business activity does not violate environmental protection laws as precondition for the granting
of business license. The proclamation also states that, if a licensed business is ascertained to have
violated environmental protection laws, its license may be suspended until the violation is rectified. If the
issue is not rectified within the specified time or if the business repeatedly commits the breach, the license
may be revoked. Given that EIA is one component of environmental laws, it can be inferred that the
Trade Registration and Business Licensing Proclamation (Proclamation ¹ 67/1997) has integrated EIA
into the framework regulating the licensing and the operation of businesses. In other words, the
proclamation provides a legal basis to require a business license applicant to seek an EIA authorization
from environmental agencies before the trade license is issued, and to suspend or revoke the trade license
should the business owner fail to comply with the conditionalities specified in the EIA authorization.
Investment Law

According to the Investment Proclamation (Proclamation №375/2003), investment permits can be

obtained upon submission of a completed application form to investment authorities. The application
form requires the applicant to provide information relating to the status of the applicant, the kind of the
intended investment activity, the investment capital, the investment area (region only), the kind and size
of intended production or service, and the number of jobs the investment shall create. Apart from these,
the application form does not require presentation of an EIA or any information related to the
environmental impact of the intended investment project. Investment authorities issue an investment
permit within a matter of hours upon submission of a properly completed application form, and notify by
letter the concerned sectoral institutions, of which the competent environmental agency is one, requesting
the necessary support and follow-up of the implementation of the investment project according to the
relevant laws of the country. The Investment Proclamation №375/2003 creates a loophole for investment

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activities to begin before going through an EIA, thereby rendering the EIA meaningless. In other words,
the current process for issuing investment licenses does not force investors to comply with the EIA
requirement. This allows reckless investors, or investors who are ignorant of the EIA requirement, to
inflict damage on the country’s environment and natural resources.

Land Law

The Rural Land Administration and Use Proclamation (Proclamation №456/2005) recognizes the right of
investors to obtain and use rural land, provided that priority is given to peasants and pastoralists (Art. 5(4)
(a)). Once land has been allocated, the proclamation obliges landholders to sustainably use and manage
the property. Land users thus face the threat of losing their right to the land in the case that the holding is
damaged due to misuse and mismanagement, in accordance with details to be specified by regional land
laws. While the rural land law of the Southern Nations Regional State stipulates that the development
plan that investors present to obtain rural land must not lead to land or environmental degradation, it fails
to subject the allocation of rural land to the requirement of EIA.
Fishery Law

The fishery legislation (Proclamation № 315 of 2003) seeks to ensure the sustainable use of fishery
resources in the country. To this end, the proclamation stipulates that federal or regional organs should
ensure that development programs and projects will not have a negative impact on the fishery resources
of a basin (Art. 8). In addition, it states that any subsidiary fishery laws and regulations to be developed
under the proclamation should incorporate EIA. Furthermore, it states that permits for the establishment
and operation of an aquaculture for commercial purposes shall not be issued unless there is sufficient land
and water resources and unless it has been ascertained by the competent authorities that the intended
aquaculture will not cause negative impact on the surrounding environment and natural resources (Art. 6).
While the proclamation contains important provisions that support EIA relevant to the sustainable
utilization of fishery resources, it does not specifically require fishery developers to submit an EIA report
to environmental agencies.

Wildlife Law

A new Wildlife Proclamation was finally enacted with the view to adapt the management of wildlife to
existing realities (Proclamation № 541/2007). In relation to maximizing the economic benefit from the
wildlife resources of the country, the proclamation encourages investment in wildlife-based tourism, to be
conducted in such a way that shall not endanger the ecological integrity of protected areas (Art. 11). In
addition, it requires that any economic activity to be undertaken in wildlife conservation areas shall be

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carried out in accordance with the proclamation, and its corresponding regulations and directives (Art.
10). While the proclamation’s assertion that wildlife based tourism should not endanger the ecological
integrity of the protected areas is a positive measure, the proclamation fails to subject the granting of
permits for development of wildlife tourism infrastructures such as hotels, camp or other facilities in
protected areas to the EIA process.

Water Law

The conservation, utilization and development of water resources in the country at present is regulated by
the 2000 Water Resources Proclamation (Proclamation № 197/2000) and the 2005 water resources
regulation (Regulations № 115 of 2005). Accordingly, the proclamation describes the measures that must
be taken for the conservation and protection of waterways and the conditions under which water resources
may be exploited. The proclamation prohibits the release of any waste that endangers the lives of humans,
animals or plants into water bodies. In addition, it prohibits the clearing of trees or vegetation and the
construction of residential houses along the banks of water bodies so as to ensure their protection. While
the water law seeks to ensure the sustainable use of water resources, it falls short of making EIA a
mandatory requirement for the issuance of water use and development permits.

Mining Law

The Mining Proclamation (Proclamation № 52/1993) and the Mining Operations Regulation (regulation
№ 182/1994) regulate the mining of mineral resources in the country. While the mining law allows a
miner to use water and timber found in the leased area for the mining operation, it requires at the same
time that the use of water should not result in substantial reduction of the quantity of quality of the water
needed by other users. It also stipulates that one cannot construct dam or divert watercourses without the
prior approval of the appropriate government body. With the exception of the clause on pollution, the
mining law does not strictly prohibit uses of water by miners that may cause other environmental
problems, such as damage the ecosystem, reduce biodiversity or degrade water resources. Holders of a
mining license may log and use timber as dictated by other applicable laws and must submit a restoration
plan. Moreover, the mining law obliges a licensee to conduct the operation in a manner that minimizes
damage or pollution to the environment. It also requires a licensee to immediately notify the licensing
authority of anything likely to jeopardize the property or the environment and to immediately take the
necessary steps to mitigate the impacts.
The Genetic Resource Law

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Following the Convention on Biological Diversity, the government of Ethiopia enacted legislation which
provides for community rights and access to genetic resources and traditional knowledge (Proclamation
№ 482/2006). The proclamation subjects access to genetic resources and community knowledge in the
country to the requirement of permit from IBCR (the Institute of Biodiversity Conservation), and
stipulates the conditions under which access to genetic resources may be denied. The proclamation
contains provisions meant to ensure that access to genetic resources is carried out without causing harm to
the environment. In this regard, it states that access may be denied if the planned use may cause, inter
alia, an undesirable impact on the environment, an ecosystem, human health or the cultural values of local
communities (Art. 13). It also obliges an access permit grantee to respect the laws of the country,
particularly those relating to sanitary control, biosafety and environmental protection (Art. 17). Again,
however, the law fails to require applicants wishing access to genetic resources to conduct a formal EIA
process.

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