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Environmental impact assessment and forestry law

Dominique Alhéritière

DOMINIQUE ALHÉRITIÈRE is the legal officer, FAO, responsible for environment questions.

The neologisms of the administrative and legal sciences are countless. Few of them are successful. The new expression "environmental impact assessment" (which we shall refer to by the initials EIA) seems to be enjoying exceptionally widespread favour comparable to that which over a quarter of a century ago made possible the triumph of the "costs/benefits analysis" concept. The latter expression did not mark the beginning of consideration of economic criteria any more than EIA is the first sign of man's environmental conscience. In 400 BC Plato demonstrated such an awareness when he mourned the vanished trees of Attica. There are no new ideas, only a renewal of their significance stamped with the seal of new terminology. The purpose of the present study is to review briefly EIA in forestry law, attempting to analyse the different situations existing both in the developed and in the Third World countries.

Foresters, more than all other natural resource managers, have applied EIA as part of their training; indeed, one could say that a forester who does not engage in EIA in one way or another is committing some kind of professional error. One duty of forestry policy must be a vast EIA exercise with its usual sequence of measures familiar to every sound natural resources manager, e.g., collection and analysis of data on existing resources and assessment of the pressures that cutting operations build up as a whole. Indeed the bans and limitations on clearing or commercial exploitation imposed by some laws or regulations and the establishment of natural reserves for the conservation of ecosystems are all measures that could only have their origin in an assessment of the impacts which these actions could have on the environment.

EIA is a procedure designed to identify and foresee the effects that laws, regulations, programmes or projects may have on the environment. EIA should, therefore, include useful information having a bearing on those effects, and they should also include alternative solutions.

It is an a priori assessment, a costs/benefits analysis for the environment which can be expected from a given action and its variants.

Naturally, forestry law has responded with more or less flexibility to different social attitudes toward forests. Most texts and decisions making up forestry law reflect some degree of EIA. What has changed is the importance attributed by forestry law to this concept and, in particular, the way it is incorporated in law. Traditionally, and until very recently, ETA was sometimes a subordinate, often vague and always incomplete concept. It was only implicitly reflected in law. Today EIA is increasingly compulsory and systematic, clear and explicit. In this respect forestry law is undergoing a far-reaching change, and it may be useful to describe and pass initial judgement on an evolution which ifs still far from its conclusion.

In modern times forestry legislation was probably among the first to promote the idea that development and protection of the environment must go hand in hand. Laws like the French Code forestier of 1827 or the Spanish Ley de Montes of 1864 combined the concepts of production and conservation. They contained ecological concerns long before the adjective had become part of everyday vocabulary.

Realizing that forestry exploitation could not pursue the sole objectives of short-term economic profitability without damage to the environment, many countries adopted laws to ensure a more ecologically oriented management of forest resources. By definition these laws presuppose that an overall EIA shall have been made even without being formally required in their projects. This could be called "implicit" EIA. Most forestry laws, especially in vulnerable areas, reflect an enormous EIA effort at the time when they were designed. The Legge Forestale Regionale (1978) of Venice, for instance, is almost entirely directed to soil and water conservation problems. The legislator necessarily has EIA in mind when he proposes, for example, forest classification by categories (see Article 2 of the 1975 amendment to the Forest Enactment, 1975, of Sabah State in Malaysia; Chapter 11 of the Ley Forestal (1974) of Guatemala; Chapter III of the Ley General Forestal de la Nación (1974) of Bolivia; and Article 7 of the Ordonnance (Order) of November 196] establishing the forestry regime on the territory of East Cameroon; also see Christy/FAO, 1971). The concern with integration of forests, soils and water, which is the very object of ecology, emerges in some laws which are old by now but which are remarkably designed, such as the Ley Forestal de Suelos y de Aguas (1966) of Venezuela and the Spanish Ley de Montes of 1957 (Section IV).

These laws contain the minimum measures which the forester should take when exploiting resources in order to reduce damage to' the environment, e.g., prohibition of floating in some watercourses, a ban on the opening of steeply sloping or straight gradient forest roads., the obligation to free passages for anadromous fish, etc. Some of these measures have a specific influence on a given situation as, for example, in the case of prohibition of cutting beside highways which has the effect of maintaining a certain aesthetic quality along road communications arteries. Other measures can have many influences on the environment, and are designed not only to preserve the beauty of a site but also its objective qualities (rainwater retention capacity and replenishment of the water table, protection of the fish potential, etc.).

Legislative measures concerning :reforestation are numerous and generally derive from that same idea of environmental protection (e.g., Article 4 of the Forestry Act, 1967, of UK; Chapter III of the Reglamento de Ordenación Forestal (1977) of Peru), even when such measures pursue mainly economic ends (reconstitution of national forest resources in order, for example, to decrease wood imports in the long term as in the case of the Polish law of 1960).

In vulnerable areas the concern for production cannot be separated from a sense of conservation. For example, see the Ley de Fomento de Producción Forestal (1977) of Spain containing specific conservation. measures. al though its first aim stated in the preamble, is wood production; see also Article 6 of the Ley de Conservación, Protección y Desarrollo de las Riquezas Forestales (1967) of Nicaragua; Article 1 of the Ley Forestal (1973) of El Salvador, etc. That the Brazilian lawmaker demands that 50 percent of the state forest lands be maintained in the present Amazonian basin settlement plans means he is aware that the influence of deforestation on the environment also depends on the size and density of the clearings opened in the forest (Article 16 (b) of the Codigo Florestal of 1965). In :France, for quality of life reasons, the proportion of the area to be maintained as forest comes to 90 percent for wooded areas classified by a town-planning document (Code de l'urbanisme, Chapter L-130). In Switzerland when a request for a clearing authorization threatens to damage the environment, it is obligatory to have expertise from the Federal Commission for the Protection of Nature and the Landscape. In the United States the conditions for exploitation and deforestation are set by the State Forest Practices Acts. The oldest of these laws goes back to 1922. Today nearly 50 percent of the United States has legislation on lumber cutting and forestry activities, and the constitutionality of these laws was upheld by the US Supreme Court decision in State v. Dexter (1947).

Indonesia, the Philippines, Papua New Guinea, Malaysia and Thailand possess forest legislation laws or draft laws of varying degrees of strictness reflecting an implicit forest assessment and forestry exploitation regulations (see Pardo, 1978).

Attica remembered

There are mountains in Attica that can now keep nothing but bees, but that were clothed not so long ago with fine trees, producing timber suitable for roofing the largest buildings. The roofs hewn from this timber can still be seen. There were also many lofty trees cultivated, and the country produced bountiful pastures for cattle. In those days, the annual supply of rainfall was not lost, as it is now, through being allowed to flow over a treeless and denuded surface to the sea.

400 BC

In general, forestry exploitation is often subject to previous authorization. In such cases an exploitation plan must be prepared (Ley Forestal, 1959, of Costa Rica; the Turkish law of 1956), and the origin of transported wood must be justified on penalty of confiscation (Mali law of 1968; see also Christy/FAO, 1971).

Sometimes the lawmaker is concerned with a very specific and particular impact, such as that of resinous species on water quality (see the Royal Belgian decree of 8 March 1963 establishing the watercourses along which resinous species plantations can be set up at a distance of at least six metres from the shores).

Formal, obligatory administrative procedures previous to cutting down trees have existed for a very long lime in national legislations. Some of them are even listed in detail in the laws (part VII of the Forests Act, 1973, of Zambia) and require that the protective function of forests and the aesthetic aspect be taken into consideration in the examination of any request for clearance licences (Article 26 of the Swiss Ordonnance d'exécution de la loi fédérale concernant la haute surveillance de la Confédération sur la police des forêts, 1965). However, these measures cannot be regarded as explicit EIA procedures since they respond to varied purposes other than the mere ETA (safety, protection of goods and persons, etc.). In the UK procedure for obtaining a licence to cut down trees covered by a protective decree is a good example of this type of procedure (Article 15 of the Forestry Act, 1967). Nevertheless, these formalities are so close to the EIA procedure that some administrations use them as such.

In the French-inspired legal tradition the declassification of the state forest domain could and can now require an EIA. The drafting of specifications to be met by an operator holding a cutting concession can constitute another opportunity to consider the environmental :impact. This applies also to classification expropriation which, under some laws, can only occur if the project threatens to have a negative impact on protection of the soil against erosion, invasions by water courses, protection of springs, dune stabilization, or public health (Article 5 of the Code forestier centrafricain of 1962). The latter text makes clearing of privately owned woodlands subject to an administrative authorization when the size of the proposed clearing exceeds 50 hectares (Article 44), and Article 45 lists the criteria to be used by the administration to deny its authorization. Five out of the six criteria listed are based on an EIA.

A GREEK TEMPLE, bare hills and dry land

The technical studies and data very often required by the administration prior to issuing authorization for exploitation or cutting (see, for example, Articles 107 and following of the Reglamento de la Ley Forestal de Suelos y de Aguas, 1977, of Venezuela) can be likened to explicit EIA (see Article 32 of the Ley Forestal, 1974, of Guatemala).

As a final example, it is interesting to refer to Appendix l of the French decree of 1977 on impact studies. Article 3-B of this text exempts from impact studies clearing which is subject to the Code forestier. All this would tend to prove first of all that traditional forest law can sometimes incorporate environmental concerns to such an extent that any EIA procedure becomes superfluous, and secondly that EIA is often concealed in administrative licence-issuing procedures, since the clearings contemplated by the Code forestier are subject to special authorization.

While EIA does not appear entirely as a new concept in forestry legislation, it would nevertheless be an overstatement to say that environmental concerns were at the centre of traditional forestry law. Only twenty years ago (see Unasylva Vol. 15, No. 3) environmental protection was presented mainly as the normal and incidental effect of sound forestry legislation whereas modern forestry law, by incorporating the concept of EIA, tends to regard environmental protection as one of the fundamental objectives of forestry policy, thereby bringing the protection of forests themselves to the level of measures or means rather than ends.

Thus there was no need to wait for the 1970s for forestry law to be concerned with EIA. However, the traditional forms of EIA are neither systematic (the requirement for an EIA often appears as an accessory to other administrative formalities and does not follow a specific model), nor complete (a lack of variants or alternative solutions), nor early enough. In this respect, EIA should be distinguished from a simple consideration of environmental impacts when a licence or administrative authorization is issued. A request for a licence is generally made when the project is established once and for all and then it is often too late for the EIA containing different variants to be fully effective.

The new age of explicit assessment began in 1970 with enactment in the United States of the National Environmental Policy Act. Certain countries acquired legal instruments comparable to section 102 of the American act, the section that introduced the EIA concept. In those countries forestry law in particular was influenced immediately. There is now a progressive trend toward a generalized EIA in all phases of forestry policy and management.

Until recently environmental impact assessment was only implicitly reflected in the law. Today it is increasingly compulsory, systematic clear and explicit.

In the few countries which have adopted modern EIA procedures the forestry laws, regulations, management plans and programmes, as well as forest works and constructions and forestry activities are often more broadly covered by the new measures than are other sectors. Thus, according to the French decree of l 2 October 1977, clearing of forests, for purposes of town planning or industrial installation operations must be subject to an EIA even if the cost is below six million francs, whereas most other operations or activities involving sums below this threshold are exempt (although clearings for agricultural purposes are subject to a summary and non-specific ETA only). In one country, Luxembourg, the Ministry of Forests and Watercourses itself is the body responsible for drafting impact studies for State and private projects which are important because of their size or their effects on the natural environment (Loi sur la protection de l'environnement naturel, 1978). Moreover, one of the earliest impact studies had as its object the construction of a super-highway through a large forest area. In the Netherlands the assessment of the ecological consequences of the construction of a road through a forest near Utrecht was used by the Ministry of Cultural Affairs, Welfare and Recreation as a trial to test the effectiveness of formal EIA procedures. Even in countries, which have no generalized EIA system, special legal provisions have been able to introduce fit in the forestry sector. Thus, according to Article 136 (a) of the Swedish law on buildings, any establishment or modification of industrial enterprises is subject to an EIA insofar as it affects forests.

An exception to the special treatment given to forests or forestry activities can be found in Ireland's Local Government (Planning and Development) Act of 1976. This act which introduces EIA explicitly in that country confines the EIA requirement to activities which are subject to previous authorization as provided by the law of 1963. Therefore all forestry projects of state bodies, as well as forestry operations in general, are exempt from impact studies since they are also exempt from previous authorization. Possibly this exception is justified by the country's natural conditions.

When there is an explicit requirement for an EIA procedure, it is not necessarily a self-contained act that binds the promoters. It can be a legislative measure introduced in a previous text by amendment (Land Surface Conservation and Reclamation Act, 1973, Alberta), a regulatory measure, or a simple government decision or order (1973 Federal Cabinet Directive, Canada, decisions of 9 September 1972 and 12 September 1975 in Germany (FR), etc.). Frequently, governments base their action in the field on the provisions of particular laws (Land Act, 1970, and Water Act, 1960, of British Columbia; Article 4 of the Portuguese Decree Law No. 348 of 1977 on foreign investments, etc.). However, no example could be found of the introduction of explicit EIA procedures only from the standpoint and for the sole purpose of forestry legislation.

Forestry law does not, therefore, seem to be an abundant source for explicit EIA. True, the National Forest Management Act of 1976 of the United States mentions environmental impact several times [Articles 2(3) and 6(g) (3) (A)], but this act came much later than the introduction of formal EIA procedures in that country.

Whether implicit or explicit, EIA should be performed at all stages of forestry policy at the time when such policy is initially established. Germany (FR) provides that all draft laws, decrees or administrative instructions expressly indicate the absence or presence of environmental impacts. As all forestry law is capable, a priori, of having significant impacts on the environment, it is advisable to subject them to EIA. This applies equally to regulations, even when they seem designed to have only beneficial effects. Prieur and Lambrechts (1979) cite the case of regulations establishing game reserves which increase the game population and endanger some forest species. Still further down in the policy-making process, EIA should be applied to planning. In fact, at the level of every project the choice and the decision maker may find themselves caught in a vise that could have been opened at the time of programme planning or preparation.

Lastly, in the forestry sector as in other sectors, it is at each project level that EIA acquires its full significance. The problem is to know which project should be subjected to it. Should we saddle every forest project with an assumption of impact and deduce from this that all forest projects except those for which a preliminary study shows the absence of impact must be subject to EIA? Should we recommend that the administration prepare lists which would enumerate the forest projects which must necessarily be submitted to EIA and those which would automatically be exempted from it? The latter method would be useful and the administration could determine the forestry projects not contained in either of the two lists case by case. In any case, one can certainly see the considerable value of the preparation of guidelines and criteria to help the forestry administration in its activity. FAO undertakes such preparation for tropical rain forest countries.

One could say that a forester who does not engage in environmental impact assessment in one way or another is committing a professional error of some kind.

Ideally the scope of EIA procedures should vary according to the nature of the project and be closely related to its location. In practice, however, artificial criteria totally alien to the requirements of ecology in general and forest ecology in particular have been incorporated by most modern EIA laws. Among the criteria sometimes accepted is the public character of the activities. This is the case in the United States, Australia and Canada, although in these countries the arbitrary nature of such a criterion is not too strongly felt in the forest sector, as a very large proportion of forests still belong to the state. In France the cost of the project constitutes part of the criteria. In the forestry sector such a criterion is no more satisfactory than that of project size. Large-scale spraying of insecticides on forest stands can be an operation infinitely less costly than selective cutting in non-vulnerable environments. Yet, the former rather than the latter operation would require a systematic EIA. Sometimes the courts, when interpreting the laws, have introduced ad hoc criteria making it possible to specify the scope of EIA procedures. In the United States, for example, it was decided that an impact study should be undertaken before deciding the declassification of the entire National Forest Roadless Area.

In Canada, Article 5a of the law of 1979 on government organization gives the Minister of the Environment a coordinating and incentivating role in EIA matters. Any forestry project, programme or activity concerning federal lands (national parks, military areas, federal crown lands) or financed by federal loans and likely to have a significant impact on the environment (auto-evaluation) must be submitted to the Minister of the Environment for consideration by an environmental assessment panel. These federal measures are supplemented in varying degrees in each province, and many provincial governments have adopted measures imposing EIA. In Ontario sizeable forestry operations undertaken by the provinces or the municipalities are subject to the procedure. Private operations may also be subject to it on special decision of the cabinet.

The question of financing EIA in the forestry sector may raise special problems. Generally the applicant or the contractor is responsible for the EIA at his own expense. It might be best to devise a system in which the forestry administration would reimburse EIA studies up to a certain percentage of the total project cost with the remainder, if any, to be borne by the originator of the project. This system, which does not yet seem to have been incorporated into national legislation, would have the advantage of not slowing down the initiatives of private operators engaging in normal forestry operations, at the same time discouraging unrealistic projects which by the number and complexity of their possible environmental impacts would involve EIA costs out of proportion to the project's economic importance.

The problem of responsibility for the preparation of EIA studies, even more than that of financing EIA, is particularly difficult in the forestry sector. The forest operator, whether public or private, generally possesses neither the competence nor the background necessary to prepare EIA studies himself. We might, therefore, conceive of establishing a body of technicians, independent of the decision makers, which would be specialized in the preparation of EIA studies in the forestry sector. In short, the selection of a particular legal system will depend on other factors like the presence or absence of a judicial review of the soundness of studies, the possibility for persons affected to request the judges or the administration to review EIA contents, etc.

Most: legislation on impact studies contemplates the intermediate stage of. the impact study abstract (French decree of 1977, Canadian directive of 1973, US law of 1970, etc.). In cases where an administrative authorization is required, the impact study can also be an additional document to be entered in the file of the authorization application. Thus, according to Article 11 of the French decree of 1977, requests for clearing authorization submitted in application of Article L. 311-1 of the Code forestier must have the impact study or an impact report abstract attached, as the case may be. This is an essential document of the file.

The impacts which forestry laws, regulations, plans, programmes, activities and projects have on the environment can be irreversible. Therefore it is important to give EIA in forestry law precise legal effect. The absence of EIA in cases where it is compulsory should therefore enable a judge to rule immediate suspension of execution (legal regimes of French origin) or to issue an injunction familiar in the Common Law countries. The new directives of the American CEQ are designed to ensure that EIA becomes a real administrative or political decision-making instrument.

EIA procedures sometimes have an anticipatory function and a decisional effect. To increase this effect on administrative decision making the competent authority could be required to refer to EIA studies in stating the motives for its decision.

It ought to he as inconceivable to undertake a major forestry operation without environmental impact assessment as to pull down the Taj Mahal in order to build a road.

The rules governing public notice of EIA are not specific to the forestry sector, but there may be specific points of special application to that sector. For example the French decree of 1977 provided for a special type of publicity in connection with the impact study on clearing operations contemplated by the Code forestier. The posting of notices at the town hall and posting in the field which give notice of the existence of an impact study should begin at least fifteen days before the start of the clearing operations.

In this brief analysis of explicit assessment in forestry law, there is little mention of legislation in developing countries, compared to the many examples of implicit assessment. This is because few of the Third World countries (Colombia and the Philippines are still exceptions) have adopted an EIA procedure. Some of them have not felt any need to do so, either because they possess strict and binding national development plans that allow for only a few alternative solutions at the project stage, or because their natural. social, political, legal and economic conditions are not conducive to the introduction of this procedure. EIA is sometimes misunderstood and regarded as a luxury of market economy developed countries, or, on the contrary, as a further stage of undesirable state control. The extension of forestry law to EIA cannot but be encouraged by the initiatives taken by many international organizations to promote the introduction of EIA in cooperation programmes. For example, the European Development Fund of the European Economic Community is trying to attach environmental guidelines to the Lomé II agreements between the EEC and 57 countries of Africa, the Caribbean and the Pacific. This would certainly affect the forestry sector in those developing countries. The World Bank is also preparing EIA guidelines for its agricultural projects. Part of the EIA methodology worked out in 1978 by the Organization of American States for its water basin development programme concerns forestry projects. Many of the bilateral cooperation agencies, including the American Agency for International Development (USAID), the Canadian International Development Agency (CIDA) and the Swedish International Development Agency (SIDA) can be expected to play on increasingly important role in the introduction of EIA procedures in the developing countries, especially for forestry projects. USAID is already obliged by law to include EIA in its main foreign development projects. On 2 August 1979 President Carter wrote to the Administrator of USAID asking him to apply EIA in assistance programmes so as to preserve natural forest ecosystems and the diversity of tropical forests, to decrease agricultural pressures on forest areas unsuited to agriculture, and to develop integrated reforestation projects. Lastly, the United Nations system itself is trying to ensure that EIA of forestry projects can be carried out successfully. FAO, the specialized agency dealing with forestry activities, is preparing specific guidelines for the preparation of EIA of forestry work, projects and programmes. Such guidelines exist already for the formulation of development projects in the Sahel countries. These guidelines, prepared by the Comité permanent interétats de lutte contre la sécheresse dans le Sahel (CILSS), assign an important place to silviculture and forestry projects, while at the same time paying special attention to the effects of various development projects on forest resources.

The introduction of additional administrative procedures should not be recommended lightly. EIA involves a certain expenditure in capital, time, and specialized personnel which should not be ignored, whether or not it is amply compensated by the benefits inherent in preventive action. In this respect the extremely prudent and considered attitude shown by some countries like the United Kingdom and the Netherlands is exemplary. Countries having careful planning and an advanced land management system probably feel less need of specific EIA measures. This is the case, for example, in Malta, which has an integrated national plan. In some countries, such as Germany (FR), the introduction of EIA is designed only to fill gaps in the regulations, and therefore is applied only to activities not covered by a special law. EIA should not paralyse the evolution ok forestry law itself.

To restate the comparison suggested by Chapuisat (1979), the EIA procedure should not look like the graft of an organ on inadequately prepared tissue in which the causes of rejection are as great as the factors of success. The legislative tissue concerning forests is particularly receptive to EIA matters, since the concept of ecology is the basis of many forestry laws. Here, more than in any other legislative sector, the question of the usefulness of including new EIA procedures arises. Naturally the answer depends on each national situation, but in formulating that answer we must always keep in mind that EIA constitutes a necessary examination of conscience.

As one environmentalist put it, it should be as inconceivable to undertake a major forestry operation without EIA, in whatever its form, as to pull down the Taj Mahal in order to build a road.


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