EIA AND DECISION MAKING

Decision-making is the process which starts after the above-mentioned steps of EIA are
completed. Usually the decision is taken by a manager or a committee, or personnel from the
concerned ministry who had not been associated with the EIA during its preparation. Technical
and economic aspects of project alternatives are thoroughly considered but, at times, political
expediency and project feasibility control the final choice. In general, a decision-maker has three
choices:
 accepting one of the project alternatives
 returning the EIA with a request for further study in certain specific areas
 totally rejecting the proposed project along with alternative versions.

As pointed out by Ahmad and Sammy (1985), EIAs are expected to aid decision-making; and
therefore, preparation and drafting of an EIA should always be carried out with this clear
objective in mind.
EIA is a process to: gather information necessary for decision-making. Inform approval and
condition setting and help determine if a proposal is acceptable.
Decision-making is a process of: political choice between alternative directions, weighing the
benefits and costs, negotiation, bargaining and tradeoffs, balancing economic, social and
environmental factors.
Decision-makers need to understand:
 EIA aims and concepts
 EIA legislation, procedure and guidelines
 the effectiveness of EIA practice
 the limitations on EIA information
 how EIA process and practice measure up internationally
 issues of public consultation and third-party challenges

Decision-makers should be encouraged to:

 implement sustainability mandates and commitments
 broaden their perspectives on the environment
 critically review information and advice
 better communicate information and decisions
 apply the precautionary principle
 improve the process of making tradeoffs
 adopt more open and participatory approaches
 use strategic tools including SEA and environmental accounting
Decision-making is a continuing process, comprising:
 interim decisions made at each stage of EIA
 final approval of a proposal
 enforcement of conditions attached to approvals
Information for decision-makers should include:
 background of the proposal
 policy context
  alternatives considered
 public inputs and balance of opinion
 significant impacts
 proposed mitigation and monitoring
 extent that the proposal conforms to sustainability principles
EIA responsibilities imposed on decision makers
 meet no further requirements
 take account of information in the EIA report
 provide reasons for the decision
 act in accordance with recommendations of a review body
Outcomes from EIA decision-making
 proposal approved
 proposal approved with conditions
 proposal on hold pending further study
 proposal returned for revision and resubmission
 proposal rejected
Checks and balances on decision making
 no decision taken until EIA report considered
 findings help determine approval and condition setting
 public comment taken into account
 approvals can be refused or withheld
 conditions can be imposed/ modifications demanded
 written reasons for the decision
 right of appeal against the decision
Means of implementing the decision include:
 establishing performance conditions
 incorporating them into legal contracts
 requiring preparation of environmental management plans
 incorporating ISO 14001 standards
 overseeing and monitoring compliance with conditions

A decision to approve or reject a mining project is generally based on the final EIA, but in some
instances, an environmental clearance may be just one step in the mine permitting process. The
decision may be accompanied by certain conditions that must be fulfilled, such as posting a
reclamation bond or filing an Environmental Management Plan. [2]
In Uganda for example based on the review of the EIS, a decision is made to approve or reject
the proposed project. The decision-making process involves a number of steps: [3]
(i) Review of EIS
NEMA and the appropriate lead agency review the EIS, taking particular note of the
environmental impacts identified, the recommended mitigation measures, as well as the extent of
stakeholder consultation. The EIS is also subjected to public review. [3]
(ii) Public Hearing
Under Regulation 21(2), the Executive Director of NEMA is required to call for a public hearing
“where there is controversy or where the project may have trans-boundary impacts. [3]

(iii) Approval of the EIS

Once NEMA, the lead agency, other stakeholders and the public have reviewed the EIS, NEMA
may approve or reject the EIS. This is the final step of the EIA process in Uganda [3]
The EIR report or EIS is submitted to NEMA for review and comments. NEMA invites
stakeholders and the public to comment on the document. If the EIR report or EIS is
approved, then a Certificate of Approval of the EIA is issued, following which a decision
can be made to proceed with the project.
If, however, the EIR report or EIS is not approved, then the project may be rejected or the
developer may be asked to revise the proposed actions or develop other mitigation
measures in order to eliminate adverse impacts. A Record of Decision is prepared
whether or not the project is approved. NEMA shall make a decision within less than 180
days. [1]
On the basis of whether the proposed project is exempt or appropriate mitigation measures have
been incorporated for the identified impacts, a decision shall be made to either approve or
disapprove the environmental aspects of the proposed project. If approved, the necessary action
shall be undertaken by the developer. After reaching a decision on the proposed action, and if it
is approved, the developer will be permitted to implement the project in accordance with the
mitigation terms or conditions attached to the approval. In the decision given by the developer,
he shall give one alternative and cite reasons for rejecting others. The alternatives rejected and
their reasons for being rejected should also be included in the report. When approving an EIA,
the Lead Agency can give a directive to the developer before, during and after realization of the
project with a view to remedying any adverse effects of the project and ascertaining what impact
the project may have in the event of decommissioning.

The importance of linking EIA and project approval

The way in which EIA is integrated into decision making on project approval will determine how
influential EIA is. It is common for the EIA procedure to be tied to some form of environmental
approval. Cheryl Wasserman of the US EPA1 gives some examples: “It may be an approval,
conditional approval, or a rejection of the EIA document or of a proposed project based upon
the information in the EIA or lack thereof. It may be a formal finding about the “environmental
feasibility” of the proposed project. It may be acceptance of the environmental management
plan, or whatever the terminology might be for mitigation and monitoring plan, and
environmentally important aspects of project design, operation and closure.”
She goes on to explain that “These distinctions can be important to the outcome of the EIA
process. Too much emphasis on the adequacy of the EIA document or a one-time
determination of “environmental feasibility” reinforces the inadequate attention to ongoing
compliance with commitments. All too often EIA requirements fail because they are perceived
and implemented as a one-time event.”

In the NCEA’s experience, EIA is less effective if it perceived as an ingredient of environmental

approval, and singularly the domain of the environmental agency. Instead, EIA needs to be
considered in other project approvals as well. This way other agencies, and elected politicians,
can draw the environmental risks of the project into their own decision and share in the
responsibility for maintaining environmental quality.
For example: in countries such as the Netherlands and New Zealand, the EIA is tied into project
approvals that are decided by politicians. In New Zealand, EIA is part of the resource consent
authorization needed before a developer can make use of a natural resources (such as a land
use consent, or a water permit). These consents are issued by regional and district authorities.
The environmental staff in these authorities check the quality of the assessment, but do not
approve the project itself.
Similarly, in the EIA directive the EU instructs member states to ensure that EIA is related to the
development consent decision, whereby the "development consent" means “the decision of the
competent authority or authorities which entitles the developer to proceed with the project.”
The directive further requires members states to ensure that the EIA information, as well as the
results of participation, are taken into account in decision-making on the development
consent.
Options for improving the linkage in Uganda
In Uganda, the EIA forms the basis for an environmental approval for the project, and the
conditions for this approval. The draft law states that other approvals may not be given before
the environmental; approvals have been issued. However, it is not specifically stated that the EIA
must be taken into account when these other approvals are decided upon.

The NCEA recommendation:

In the future it may be worthwhile exploring options for better integration of EIA into other
permitting procedures in Uganda. In the meantime the NCEA recommends that the NEMA
makes it clear in the act and the regulation that it is the intention for the EIA to start early, and
influence both project design, as well as project approval decision-making by other authorities.
Example texts to consider are:
“environmental considerations must be integrated into all forms of decision making”
(example from the Australia Environment Protection and Biodiversity Conservation Act).
Or (from the EU EIA directive):
“(2*) … Union policy on the environment is based on the precautionary principle and on the
principles that preventive action should be taken, that environmental damage should, as a
priority, be rectified at source and that the polluter should pay. Effects on the environment
should be taken into account at the earliest possible stage in all the technical planning and
decision-making processes.”
Also, consider including decision-making in the definition of the EIA process, such as in this
definition of EIA in the EU EIA directive:
“environmental impact assessment” means a process consisting of:
i. the preparation of an environmental impact assessment report by the developer.
ii. the carrying out of consultations as referred in the regulations
iii. the examination by the competent authority of the information presented in the environmental
impact assessment report and any supplementary information provided, where necessary, by the
developer in accordance with the regulations and any relevant information received through the
consultations.
iv. the reasoned conclusion by the competent authority on the significant effects of the
project on the environment, taking into account the results of the examination referred to
in point (iii) and, where appropriate, its own supplementary examination; and
v. the integration of the competent authority's reasoned conclusion into any of the decisions
referred.

Transboundary environmental impact assessments

Notifying the affected country early
The current draft includes articles on the procedural requirements when a neighboring country is
(potentially affected) by a project on Ugandan territory. The provisions now concentrate on the
arrangements that need to be made when the Environmental Impact Statement has been prepared.
However, it may be equally important to include a provision for notification of the potentially
affected country early in the process, at the stage of the scoping report or project brief or even
when the project idea is notified. This way the potentially affected country and the relevant
Ugandan agency can discuss and agree at the start on the most appropriate arrangements for
provision of information and for consultation with relevant agencies and other stakeholders in
the potentially affected country.
It is worth organizing this contact early, so that the relevant agencies in the potentially affected
country can contribute to scoping. They might bring specific issues that need to be addressed in
the EIS into view or have relevant environmental baseline information to contribute.
The NCEA recommendation:
The authority shall notify the relevant authority or authorities of the potentially affected
country or countries as early as possible, for the purposes of ensuring adequate and effective
consultations.
The potentially affected country authority will be requested to indicate whether it wishes to
participate in the environmental decision, so that adequate arrangements can be made for
provision of information and consultation in the potentially affected country.”
In addition, part VII on transboundary EIA now does not contain provisions on how written
comments or consultations from the potentially affected country will be organized, received
and taken in to account.
The NCEA recommendation:
To include provisions on how the authority will ensure that input from the affected country can
be received. For example (based on the EU EIA directive):
“The authorities of both countries shall, each in so far as it is concerned:
(a) arrange for the information referred to in articles … (the EIA, the scoping document, etc.) to
be made available, within a reasonable time, to the relevant authorities and the public
concerned in the affected country; and
(b) ensure that the relevant authorities and the public concerned in the affected country are
given an opportunity, before project approval is granted, to forward their opinion, within a
reasonable time, to the authority.
References

H. a. C. Ministry of Works, Environmental Impact Assessment Guidelines for Road Projects- final
[1] draft, kampala, 2004.

[2] Y. a. S. G. Ahmad, Guidelines to Environmental Impact Assessment, Hodder and Stoughton, London,
1985.

[3] Guidebook for Evaluating Mining Project EIAs chapter 2.

J. Manyindo, Monitoring Compliance with EIA Recommendations in Uganda:Opportunities for

Progress, Kanjokya Street, Kamwokya: Uganda Wildlife Society, March 2002.

B. S. a. M. McCabe, Environmental Impact Assessment Training Resource Manual, Geneva: UNEP,

2002.

R. O. M. a. I. K. Kenneth Kakuru, "A GUIDE TO THE ENVIRONMENT IMPACT ASSESSMENT PROCESS

IN UGANDA," Sustainable Development, vol. 1, no. Series No. I, p. 29, September 2001.

M. B. S. Ms Ineke Steinhauer, "Observations on Updated Regulations for EIA," Netherlands

Commission for Environmental Assessment (NCEA), kampala, 2015.