Hong Kong’s outdated environmental impact law needs to move with the times

The Environmental Impact Assessment Ordinance came into force 20 years ago, on April 1, 1998. This legal framework imposed, for the first time in Hong Kong, a mandatory public assessment of the environmental impacts of large development projects such as transport infrastructure, airport facilities and land reclamation.

This ordinance injected new hope for democratic decision-making in large development projects. It imposed the publication of a comprehensive study and public consultations in which anyone could have a say before a project, likely to have significant environmental impact, could move forward. Courts would control compliance with these procedural safeguards through judicial review.

This institutionalised scrutiny made decisions detrimental to the environment less likely, and brought Hong Kong on a par with many Western countries, well before other Asian jurisdictions.

All flagship development projects in Hong Kong in the past 20 years have gone through this procedure, from the extension of the MTR network, to the airport’s third runway and the Hong Kong-Zhuhai-Macau bridge-tunnel project. But practice also revealed imperfections in the legal framework. Reports routinely exceed 1,000 pages, with lengthy discussions of environmental impacts unlikely to be significant. Public access to information has been limited, as reports were only available in English, and assessments are carried out at an advanced stage of the project, where meaningful alterations would incur substantial costs.

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Meanwhile, the government’s original enthusiasm for a mandatory assessment of environmental impacts has waned. Over two decades, the government has made no substantial amendment to the ordinance, a lethargy contrasting sharply with the evolution of similar statutes elsewhere.

In 2001, the European Union adopted a mandatory Strategic Environmental Assessment – through which environmental impacts are assessed before projects are even designed. Mainland China adopted a similar procedure in 2002, and about half of the world has since followed.

But Hong Kong’s government, while establishing a policy of conducting strategic assessments, did not enter into a legal obligation to do so. Existing policy does not guarantee a comprehensive study or public consultations, or provide grounds for judicial review. As such, citizens have no legal entitlement to express views on the government’s general orientation, which inevitably affects their lives.

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In other jurisdictions, environmental impact assessments extend to environmental concerns, far more prominent now than 20 years ago. Environmental impact assessments could provide an opportunity to mitigate climate change, something Hong Kong has committed to. Careful consideration at the project level could allow for major reductions in greenhouse gas emissions, like more efficient power plants or an airport design reducing taxiing distances. Likewise, environmental impact assessments could promote climate resilient projects able to withstand heat waves, sea-level rise and other climate change impacts. Such considerations should be integrated into strategic environmental assessments related to relevant plans or programmes.

Here again, inspiration could be drawn from developments in other jurisdictions. In recent years, the EU Commission and the US Environmental Protection Agency have developed methodologies for accounting for greenhouse gas emissions in environmental impact assessments. Last year, courts required the inclusion of greenhouse gas emissions in the environmental impact assessments of a pipeline project in the United States, power plant in South Africa and extension of the Vienna International Airport.

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The Hong Kong statutory framework on environmental impact assessment contains no mention of addressing climate change. In some cases, public agencies have conducted greenhouse gas studies on a voluntarily basis. The Airport Authority, for one, conducted a greenhouse gas study on the third runway extension project in December 2014, revealing that the extension would increase greenhouse gas emissions by more than 7 million tonnes of carbon dioxide per year from 2030. This will cancel out about two-thirds of the decrease in emissions pledged under the Hong Kong Climate Action Plan 2030+. This, and other greenhouse gas studies, were not subjected to any public consultation; it is not part of the environmental impact assessment.

Deputy Secretary for the Environment Elvis Au Wai-kwong has described the Environmental Impact Assessment Ordinance as a “living instrument”. But, after two decades of hibernation, it must wake up to environmental impact assessments. If it is to remain relevant, the ordinance should incorporate good practices from elsewhere amid growing concern over global environmental impact on societies.

Benoit Mayer is assistant professor in the Faculty of Law at the Chinese University of Hong Kong