International Journal of Social Science Research (IJSSR) eISSN: 2710-6276 | Vol. 4 No. 4 [December 2022]
Journal website: http://myjms.mohe.gov.my/index.php/ijssr
EIA LEGISLATION IN MALAYSIA: ISSUES AND CHALLENGES
Abdul Rahman Mahmud1*
1 Environment Institute of Malaysia, EiMAS, Bangi, MALAYSIA
*Corresponding author: [email protected]
Article Information:
Article history:
Received date : 31 October 2022 Revised date : 20 December 2022 Accepted date : 26 December 2022 Published date : 30 December 2022
To cite this document:
Mahmud, A. R. (2022). EIA LEGISLATION IN MALAYSIA:
ISSUES AND CHALLENGES.
International Journal of Social Science Research, 4(4), 320-331.
Abstract: Sustainable development can be achieved by systematically and strategically planning. One of the tools used in sustainable development is environmental impact assessment (EIA). EIA has been legally implemented in Malaysia for over 30 years. However, the public always needs to understand the law related to implementing and enforcing the EIA law in Malaysia. Which still needs to be clarified and understood. Therefore, this paper aims to highlight the legislation related to EIA in Malaysia, which is subject to the Environmental Quality Act 1974. This paper will also discuss issues in the implementation of EIA in Malaysia. This study done by using qualitative method.
Literature review and focus group online discussion has been undergone in this study. Section 34A is the primary source of authority for EIA to be carried out at the federal level. This section has a total of eight subsections that explain the primary legislation related to EIA. While the Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 2015 is intended to clarify activities that require an EIA study to be implemented. Overall, EIA legislation in Malaysia has the potential to be used to manage sustainable development. The Department of Environment faces five main challenges in terms of the implementation of EIA. The first is related to a misunderstanding about the approval issued by the DOE, which is the approval of the EIA report instead of approving the project. Secondly jurisdiction overlap with other agencies at the state and federal levels for activities set to carry out EIA studies. The third issue regarding interpretations relates to the prescribed activities that need further interpretation. Fourthly, the
1. Introduction
Environmental impact assessment (EIA) is one of the important approaches used to plan and control sustainable development. It is intended to identify impacts, predict impacts and propose environmental control and monitoring measures at each stage of project implementation (DOE, 2016). The federal government has implemented EIA legally as stipulated in the Environmental Quality Act (EQA) 1974. The Department of Environment (DOE) is the agency that enforces the implementation of EIA in Malaysia. However, state governments also have their own legislation to implement EIA, namely the states of Sabah and Sarawak. This article aims to achieve the following points:
i. Identify the section related to EIA under the Environmental Quality Act 1974.
ii. Describes the section related to EIA under the environmental quality act 1974
iii. Describe the issues and problems in the implementation of legislation related to EIA in Malaysia
2. Literature Review
In the decade after independence, Malaysia experienced rapid development, particularly in agriculture, plantations and industrial activities. Natural resources have been actively explored.
Hence, it involves the opening of land areas extensively. It caused cases of environmental pollution that increased in the decade of the 1960s (Aziz et al., 2018; Rahman Mahmud, 2021). Infrastructure development efforts and rapidly growing economic activities must be balanced with effective environmental management (Abdul Rahman Mahmud, 2018). The Environmental Quality Act 1974 was gazette in 1974 to overcome environmental problems at the time. However, the act created at that time still needs to be improved, especially to control development projects that may pose a risk to the environment. In the early 1970s, the use of EIA as one of the tools in environmental management is growing worldwide. EIA was initially used to ensure that environmental management can be integrated into a project's development. According to Joe Weston (2000), EIA is derived from rationalist decision-making theory. EIA has evolved with the integration of scientific methodology. So the combination of rationalist thinking with scientific evidence has made EIA an effective tool. Applying this theory then becomes an essential part of absence of EIA regulations under EQA 1974 will influence the process of enforcement. Fifth, lack of human resources to enforce EIA projects throughout Malaysia. EIA legislation in Malaysia continues to evolve gradually. This legislation should be continuously improved to remain relevant and be used as an essential environmental management tool.
Keywords: EIA legislation in Malaysia, EIA enforcement in Malaysia, EIA law in Malaysia, EIA in Malaysia, Sustainable development in Malaysia, issue and challenges EIA implementation in Malaysia.
the decision-making process (Stephen Jay et al. 2007). Every project proposal must provide information about the project implementation method and its impact on the environment. In order to identify the impact requires a scientific approach to be applied. Therefore, EIA originally did not have any legal characteristics (Emejuru & Adiela, 2015). Nevertheless, to ensure that it is implemented in projects that have a significant impact, it has been introduced in the legislation.
The United States is the prominent pioneer that legally introduced EIA implementation (Emejuru
& Adiela, 2015). EIA is considered an effective tool in planning development. The implementation of EIA among South East Asia country is began in early 1980s (Abdul Rahman Mahmud, 2022).
The awareness to use EIA as environmental management tools shows the commitment towards sustainable development. EIA has been implemented in many countries with various system and procedures. The difference implementation between countries can be look in terms of the prescribed activities for the EIA and also the procedures(Abdul Rahman Mahmud, 2022). But the similar principle or best practice is implemented in the same manner. There are six basics of EIA practice as discuss below.
Best Practices 1: Screening
The screening phase of the EIA process is the initial phase. The EIA process includes screening as a critical step. Screening is aim to identify either a project is subject to conduct EIA under legislation or not (DOE, 2016). It frequently marks the project proponent's first interaction with the government and the community over the planned project.
Best Practices 2: Scoping
Scoping is a crucial phase of the EIA procedure. It embodies the steps involved in identifying the EIA's scope of study (Vardopoulos, 2019). The scope of EIA study is including the data, method, modelling and analysis that will be used in conducting the studies. All the information will be gathered and creating a term of reference (TOR). Some countries have special procedures to ensure TOR is being verified by expert or appointed individual.
Best Practices 3: Preparation of the EIA
The process of gathering information and putting together the EIA report begins after the Terms of Reference have been approved by the relevant EIA authority. The EIA Consultant will draught the EIA report in accordance with the data gathered. Basically, there are specific guideline that need to be follow by the consultant in the preparation of EIA report.
Best Practices 4: Review and Assessment of the EIA
This is the practice where the EIA report content being analyses to ensure valid and reliable information given. Generally, the authority will review the report transparently. This is the stage where the decision that needs to be made on the basis of complete facts and scientific evidence, independently, honestly, and with no outside influence (Ho et al., 2020). In light of this, it is necessary to have a transparent review procedure that offers possibilities for public involvement.
Best Practices 5: Approval of the EIA Report
Approval of EIA report is done by the authority that have legal power on it. The Approval of EIA report basically attaches together with approval condition. The approval is done by take into account the fact and scientific evidence that provided in the report.
Best Practices 6: Monitoring and Compliance
Once the report is approved, the monitoring and implementation of control measures must be coordinated by the project proponent. While the enforcement agency will conduct enforcement at the project site. Project proponent need to monitor the quality of the environment in order not to receive a significant impact from the implemented development. Monitoring is a continues process. The community will be more confident that the project is being run in compliance with the conditions of approval with monitoring activities.
With regards to the EIA legislation implementation in Malaysia, the Department of Environment Malaysia (DOE) have enforced section 34A of the Environmental Quality Act 1974, since 1987.
This section is related to the requirements of environmental impact assessment study (EIA). It is to control activities that can have a significant environmental impact. Explanation of the activities that require an EIA study is decribed under the Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987. This legislation has been improved over time to strengthen its implementation and effectiveness. In 2015, amendments to the prescribed activities were made. EIA-related section consists of eight (8) main subsections. According to (DOE, 2020), from 2009 until 2020 there are 3,542 EIA report has been recieved by the DOE. There are trend of increases in EIA report received in the last five years (Figure 1). In everage 290 EIA reports received every year. Loging activities is found as the highest number of project, follow by waste treatment-disposal and industrial activity (Figure 2).
Figure 1: EIA Report Process by DOE Malaysia .
Figure 2: EIA Report Base on Type of Project
2.1 Problem Statement
Recently there have been many issues that have arisen regarding the implementation of EIA in Malaysia. The public is still wondering about the requirements of EIA from the legal aspect. The public always needs to understand the law related to implementing and enforcing the EIA law in Malaysia. Which still needs to be clarified and understood.
33%
10% 27%
5%
25%
Loging
Waste treatment and disposal
Industry
Mining
Others
3. Method
The qualitativeapproache is used in this study. Literature review and focus group discussion is conducted to obtain the data for this study. Figure 3 shows the research methodology used in this study. Literature review materials are includes legislation related to the Environmental Quality Act of 1974 which covers sections 34A and 34AA are analyzed in depth. EIA guideline also used to be refer in the study to point out the important matter with in the regulation.
Figure 3: Research Methodology Used in this Study
This study started with literature search on Environmental Impact Assessment in Malaysia.
Relevant source of literature including article journal and relevant act and regulation is collected.
Then all the literatures are screen to identify the relevant literature to be used. The analysis of the research is done by using thematic analysis. Two main important themes are listed in this study the first is about EIA legislation in Malaysia. Under this theme the analysis is go more further into four five subthemes. Which will discuss with regard to the power of minister, the responsibilities of consultant, the power of Director General, the responsibilities of project proponent and fine and penalties. The second main theme is issue in challenges in EIA implementation. The issue and challenges are identified through focus group online discussion with DOE officer from headquarters and states. Few important open questions have been discussed during the session.
The questions are as follow:
1. What is the challenges face by the DOE in the enforcement of EIA legislation in Malaysia?
2. How the challenges could influence the enforcement of EIA legislation in Malaysia?
3. What are the recommendation to improve the enforcement of EIA legislation in Malaysia ? Output from the discussion then mapping out to pick the important issues. The most frequently issues that has been discussed is chosen to be listed and discussed more further in the result and discussion part.
4. Results and Discussion
4.1 The Power of Minister to Determine Prescribed EIA Activities
Under the Environmental Quality Act 1974 (Malaysia Law, 2022) there are eight (8) main sections that explain the implementation of EIA enforced by the federal government. The Department of Environment is the agency given the mandate to enforce legislation related to EIA. For Section 34A(1), in EQA 1974 it aims to clarify the minister authority to designate any activity to carry out an EIA study. This means that the minister with the advice of the environmental quality council (EQC) can determine any activity that can be considered to carry out an EIA study. Designation of prescribed activities is usually determined through a continuous study taking into account the magnitude of its impact and risk to the environment. In the context of the implementation of EIA nowadays, the activities that require an EIA study are listed under the Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 2015. There are two lists of activities that require an EIA study, namely the First Schedule and the Second Schedule.
4.2 The Responsibilities of Qualified Person to Conduct EIA Study
Section 34A(2), under the Environmental Quality Act 1974, focuses on the person qualified to carry out the EIA study and the role and compliance in carrying out the EIA study. Under this section the project proponent to appoint a qualified person to carry out the EIA study. A qualified person referred under this section is a person who has a recognized qualification and is registered under the EIA Consultants Registration Scheme (DOE, 2018). It means that project proponents who intend to carry out an EIA study must appoint a registered EIA consultant. The EIA consultants who conduct the study have specific qualifications and expertise. Individuals who wish to become EIA Consultants to carry out EIA studies must be registered under the EIA Consultant Registration Scheme administered by the Department of Environment Malaysia. While under subsection 34A(2)(a), it is stated that the Director General shall maintain a list of qualified persons who can carry out EIA. It means that the Director General must provide a system to manage the registration of EIA consultants. In this regard, the DOE has established an online registration system called MyCEP. It can be browsed at http://www.mycep.doe.gov.my. This website registers individuals interested in becoming EIA consultants with certain conditions. This website also provides a platform for project proponents to select individuals registered as EIA consultants to carry out EIA.
Table 1: Three Main Categories of EIA Consultant Registration
Category Interpretation
Assistant Consultant
Those registered as consultant assistants help with the work carried out by environmental consultants, from sampling, data analysis and preparation of EIA reports.
Consultant
Those registered as EIA consultants carry out special studies in the field of environmental impact assessment. For this registration category, each consultant is registered with areas of expertise in water quality control, air quality control, noise quality control and waste pollution control.
Expert Subject Consultant
Those registered as consultants for this category have expertise other than the fields registered as EIA consultants. For example, geological experts, flora and fauna, socio- economic experts and others..
A code of ethics also binds a registered EIA consultant in the EIA consultant registration scheme.
Section 34A(2)(b) insists that the registered consultant shall be responsible for the report preparation. The registered EIA consultant must be responsible for his study, including comments, analysis, and conclusions in the EIA report. Therefore, the consultant conducting the EIA study must conduct the study correctly and ensure the results are based on appropriate scientific methods.
The existence of EIA guidelines can help consultants prepare EIA reports systematically and uniformly. While section 34A(2)(c) states that the submitted EIA report must be prepared according to the guidelines set by the Director General, in this context, the consultant should use the EIA guidelines by DOE to be followed in carrying out the EIA study. In this regard, there are two types of EIA guidelines published by DOE, namely general EIA guidelines and specific guidelines.
4.3 The Power of Director General to Approve EIA Report
Section 34A(3) explains the power of the Director General to approve the EIA report with the approval of the EIA conditions. Any EIA report that has undergone a detailed evaluation process and meets all the criteria set can be approved by the Director General. However, the Director General can delegate authority to officers under him to approve the EIA report. Officials authorized to approve EIA reports are directors at the Department of Environment at the state and headquarters levels.
Section 34 A(4) explains that the Director General can only approve the EIA report if the project to be developed is in line with the physical development plan and meets the set guidelines. It means that any activity prescribed under the Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 2015 must be consistent with the physical planning that prescribed by the local authority. A physical plan is a planning plan that determines the appropriateness of development in an area. It includes District Local Plans (RTD), Special Plans (RK) and other approved plans for development planning purposes. It is beneficial to ensure that the implementation of the project should be carried out in the appropriate area. At the same time, this can ensure that environmentally sensitive areas are protected, and development coordination can be achieved well.
Section 34A(5) explains that the Director General has the authority for the project proponent to prepare additional reports other than the EIA report prepared to consider the approval of the EIA report. It means that other studies and additional studies can be prepared if directed by the Director General. Section 34A(6) is a section that prohibits any project proponent from carrying out any activity before the EIA report is approved. It means that no activity is allowed to be carried out on the project site before the EIA report is approved. If an activity is carried out without an approved EIA study, it is one of the offences under this section. DOE reports that there are project proponents who are to carry out the project even though they not receive the approval of the EIA report.
4.4 The Responsibilities of Project Proponent to Comply With EIA Approval Condition Section 34A(7) is a section that explains the responsibility of the project proponent to exercise control throughout the project implementation. The project proponent must provide evidence of compliance that the conditions of EIA approval have been implemented during the project implementation. The EIA approval conditions will usually explain the steps that must be followed before, during and after the project is implemented. It is the project developer's responsibility to show evidence of compliance by using documents as reporting and compliance at the project site.
With the condition of EIA approval, it can help DOE to controland monitor the project implementation systematically.
4.5 Fine and Penalties
Section 34A(8) is a section that explains the fines and penalties for the offence of violating any of these subsections. The fine is not exceeding five hundred thousand or five years imprisonment for violating section 34A. While an additional fine of RM1000 per day if the offence continues after a notice is issued by the Director General of the Environment.
4.6 The Prohibition and Stop Work Order for Any Violation of EIA Project
Section 34AA is a section related to Prohibition or Stop Work Orders under EQA 1974. This section explains the power of the Director General to issue a prohibition or stop work order to project proponents to prohibit them from carrying out any of the prescribed activities.
Three conditions allow this section to be executed:
Section 34AA 1(a) explains if the project proponent or anyone who carries out activities without approval under Subsection 34A(3). This situation is when the project developer starts earthworks, construction, or operations without obtaining the approval of the environmental impact assessment report (EIA). For Section 34AA 1(b), when any project proponent violates any conditions attached to the approval of the EIA approval conditions. It is a situation where the project proponent has violated the conditions of approval of the EIA report that may or has caused severe pollution and threatens the environment, health and public safety and needs to be stopped immediately.
Section 34AA 1(c) states that if, in the opinion of the Director General, it is carried out in a way that may cause damage to the environment. It refers to when the project is carried out and can cause severe pollution and further damage the environment. An example of a case that can be actioned is failure to comply with the installation of erosion and sediment control, such as not installing or implementing control measures effectively, resulting in severe pollution to the revere and threaten human life.
Section 34AA 3(a) explains the fines and penalties. This section states a fine of not more than RM 500,000 or imprisonment of not more than five years. If a continuous offence is committed, then action can be taken under subsection 34AA 3(b), a continuous offence, a fine of not more than RM 1000 for each day of the offence.
4.7 Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order (2015)
In order to explain the activities, set to carry out EIA studies, the Environmental Quality Order (Prescribed Activities) (Environmental Impact Assessment) Order (2015). In short, this order is known as the “EIA Order 2015”. It outlines the activities that need to be carried out in an EIA study in Malaysia. There are two list tables, the First Schedule and the Second Schedule. The First Schedule has 21 activities, while the Second Schedule has 17 activities. The main difference between the First Schedule and the Second Schedule in terms of the quantum and the size of the project. The activities listed in the First Schedule will involve processing procedures at the Department of Environment in the state. That is, evaluating the EIA report will take a client charter of 25 working days. The appointed chairman of the meeting is usually the director of the Department of Environment at the state level.
For, the activities listed in the Second Schedule will involve the preparation of Term of References (TOR). Where the consultant needs to prepare the terms of the study scope and methodology in advance to be evaluated before the study is implemented. The purpose of TOR is to ensure that the scope of the study and the research methodology used to conduct the study are adequate and verified. The TOR report will be processed at the DOE Headquarters level. At the same time, the EIA report evaluation process at DOE Headquarters will take 60 working days(DOE, 2018). In general, the approved EIA report will be issued together with the approval conditions. There are general conditions that need to be implemented by the project proponent. Such as the preparation of an environmental management report (EMP). This report details explaining on how project proponents carry out activities that can comply with the approval condition. This report must be sent and approved first before project can be implemented.
4.8 Issues and Challenges in EIA Implementation
For more than 30 years of EIA implementation in Malaysia, there have been issues and challenges that DOE has overcome. Base on the focus group discussion that conducted, there are five challenges face by the DOE in order to enforce the legislation related to EIA. The first challenge concerns on the public understanding of EIA. EIA is a study to predict the impact and propose implementing control measures. EIA study is carried out before the project is implemented.
However, public also get confuse to differentiate between the approval of the EIA report and the approval of the EIA project. DOE issues the approval of the EIA report only. It is done after a detailed and transparent assessment. Public sometimes misunderstandings, on DOE roles. It is often seen DOE as the agency that approves development projects. In contrast, project approval is usually approved by the approving authority not DOE. Even so, it has become a practice in this country to carry out an EIA study first and be approved before the project can approved.
The second challenge is that from the aspect of EIA implementation, it often creates overlapping jurisdiction between agencies at either the state or federal level. There is a clear overlap of jurisdiction going on. It refers to some of the prescribed activities to conduct an EIA study (Tang, 2019). For example, mining activities are jurisdiction under the Department of Minerals and Geosciences (DMG). A specific act to control mining activities is the Mineral Development Act 1994 (Malaysia Law, 2022b). This act is enforced by the Department of Mineral and Geoscience.
There is also specific section in the act that also controls environmental aspects seen as quite comprehensive. Issues of redundancy powers arise during the approval and enforcement stages.
Redundancy of the powers for the prescribed activities under the EIA Order 2015 should be avoided to ensure an efficient government delivery process.
The third challenge is interpreting the definition of activities subject to EIA in the First Schedule and Second Schedule, EIA Order 2015. Some prescribed activities still need to be clarified in terms of its terminology and usage. It needs to be clarified among consultants and stakeholders. To ensure the activities that need to conduct EIA can be distinct clearly. In order to overcome this problem, a detailed explanation regarding the interpretation of the prescribed activities should be implemented by DOE.
The fourth challenge is the absence of regulations related to EIA under section 34A. It causes the enforcement of EIA legislation to be seen as needing to be implemented smoothly. Rules in a piece of legislation are usually created to explain how a section can be better enforced. The absence of regulations related to EIA under section 34A EQA 1974, somewhat delays the process of fines and legal actions that can be imposed on project proponents who violate the conditions of EIA approval. With the EIA Regulation under EQA 1974, a list of compounded offences can be identified. The act of compounding offences can give environmental offenders fine faster than the prosecution process in court.
The fifth challenge DOE faced was the lack of EIA project enforcement officers in the field (Abdul Rahman Mahmud & Zaini Sakawi 2015). The number of EIA projects that need to be monitored is large. It may affect the implementation of enforcement carried out by the DOE. The need for enforcement in the field is necessary to monitor project implementation compliance more effectively. The issue of the insufficient number of staff has been raised many times, but there still needs to be a solution implemented. Among the things done by DOE is to utilize technology to ensure that enforcement can be implemented. It is done by using drones and monitoring by using geographic information systems.
5. Conclusion
Based on the matters that have been discussed, it was found that the legislation related to EIA in Malaysia is very comprehensive. However, some improvements should be implemented continuously. The challenges faced in implementing EIA should be seen and further research is needed to strengthen its implementation in the future.
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