The ESIA system in Afghanistan is newly developed and still undergoes changes. In the period of 2005 until 2008 legal requirements have been established for it in the form of an Environment Law and ESIA regulations. The central ESIA authority in Afghanistan, the National Environmental Protection Agency (NEPA) was launched in the same time period. As the institutional framework in Afghanistan was thus not yet ready to support the ESIA process envisioned in the Environment Law, a transitional process was developed. It is reflected in Interim ESIA Regulations and an ESIA policy. This interim ESIA system largely builds upon international best practices. This approach was chosen because the proponents of activities that are subjected to ESIA are mostly international donors that have their own standards on best practices on ESIA.
The EIA process as defined in the ESIA regulations (2008) includes a Screening, assessment, review and a decision-making process. Scoping and follow-up activities are advised, but not mandatory. In general, the ESIA process in its interim state is recommended to follow international best practices. The outcome of the ESIA process is the granting or rejecting of a Certificate of Compliance. The ESIA policy (2007) provides flow charts on the overall ESIA process and the different EIA stages.
The following main documents result from the EIA process: Screening report, EIS, Comprehensive mitigation plan, evt. Review document, Certificate of Compliance.
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Screening
Screening process
Screening is required. According to the Environmental Law, NEPA is the screening decision authority but receives recommendations from the EIA Board of Experts.
The proponent should conduct a screening process and submit an application with a technical screening report to NEPA. The screening report should be consistent with international best practices and the technical guidelines for Screening, which are added to the EIA regulations (2008) in their Schedule 3. NEPA will then distribute a notice of public disclosure and thereafter NEPA will take a Screening decision. The NEPA then decides, if the information provided is sufficient and a Certificate of Compliance can be issued, if further information is requested, or if the applicant should do an EIA in order to obtain the Certificate of Compliance.
The Screening decision is taken on the basis of lists provided by the EIA regulations. They divide the activities into different impact categories:
Category 1: activities likely to have significant adverse impacts;
Category 2: activities with potentially adverse impacts.
The lists are inclusive and uses tresholds that are based on initiative features and environmental parameters. Activities under category 1 or 2, any activity which is likely to have negative environmental impacts that is located in an environmentally sensitive area or other activities that are determined by the NEPA is a ‘prohibited activity’ and thus subject to EIA by the Environment Law (2007). If a proposed activity is listed as ‘prohibited activity’ (in EIA approach annex 1), a Certificate of Compliance is required for it before the activity can be undertaken.
Sensitive areas
Regulation 2(3) of the EIA regulations (2008) give some provisions for environmentally sensitive areas. Activities that are likely to have significant adverse effects on the environment of an area that has been determined by NEPA to be a environmentally sensitive area, are defined as prohibited activities and are thus subject to EIA.
Contents of the starting document
The information that is to be supplied by the proponent in the application (screening report) is included in Schedule 3 of the EIA regulations (2008). They advise that information regarding the following issues should be provided: the applicant, the activity, the location of the activity, potential sources of impact, mitigation measures, public participation etc.
Timeline Screening
The NEPA has 14 days after receiving a complete application to distribute the notice of public disclosure. Within 21 days of distribution the notice of public disclosure the NEPA than will take the screening decision. Thus within 35 days from when he had submitted the application, the proponent receives the decision of NEPA on whether an EIA has to be conducted.
EIA regulations (2008)
Scoping
Scoping process
No provisions for scoping are given in Environment Law or the EIA regulations (2008). The non-binding EIA policy, however, does mention a Scoping stage.
The EIA policy defines a Scoping procedure. It states that the NEPA is responsible for the Scoping process with assistance by the Board of EIA Experts. According to the guidelines during the Scoping stage, the NEPA decides on the activities for which EIA was required (as determined in the Screening phase) if those activities can commence work already and what the EIA requirements for it are. There are three options:
Projects can require an EIA before works can be commenced;
Project can be granted permission to commence works but thea are still requested to prepare an EIA report;
A permit is released with no further EIA requirements.
Projects with most severe impacts and thus activities that fall under Category 1 as defined in the Screening phase are likely to not be given permission to commence works.
For those project for which an EIA report is required, NEPA provides the proponent with the Terms of Reference. Guidelines for scoping may be developed in the future, but sector specific guidelines are a higher priority.
Contents of the scoping document
Proponents are guided by international best practices.
UNEP contact
Assessment
Assessment process
No specific requirement on the assessment process are given. The proponents are responsible for the EIA study and the quality of the EIA reports. The assessment shall be done in accordance with international best practice.
Administrative guidelines for the preparation of Environmental Impact Assessments (draft March 2007) and EIA policy (2007)
Contents of the ESIA report
The ESIA report shall contain the following information:
A full description of the activity and its need and desirability;
A description of the location and the environment of the activity;
Information on likely impacts and benefits;
Information on alternatives and their impacts;
Mitigation measures
Monitoring measures
An identification of all involved parties;
A description of the public participation process during the EIA process;
Other information as required by NEPA.
Review
Review process
The NEPA reviews the EIA reports. If it finds the submitted technical reports and information to be not in accordance with international best practice, the proponent will be adviced to submit a review document indicating the manner in which the applicant has addressed the concerns of the NEPA.
UNEP contact
Review expertise
Once in place, the Board of Experts will advice NEPA the review process. It is unclear if the Board of Experts is already established in practice.
National Environmental Management Act 107 of 1998 (Chapter 5 section 24I)
Timeline Review
45 days from submission of the EIA report, it should be approved and a decision should be made on the issuance of the perrmit. If the EIA report is not approved and a review document has been submitted by the proponent, within 30 days a decision should be taken on whether the certificate of compliance will be issued or not.
Decision-making
Integration of ESIA into decision-making
Acceptance of the EIA report and issuance of the permit is an integrated decision taken by NEPA. By accepting the EIA report, NEPA issues the required permit simultaneously. The Certificate of Compliance gives authorisation for commencing works on the activity. The Certificate of Compliance is issued if:
The applicant has complied with the procedural requirements for ESIA;
The submitted technical reports and information are in accordance with international best practice;
If the applicant has fully consulted with affected people; and has adequately addressed their concerns.
In addition to the Certificate of Compliance, the activities might also require a separate authorization for the polluting activity during operation, a pollution control licence.
Hence, the Certificate of Compliance may not be the only authorisation required for project approval.
EIA regulation 9 (2008)
Decision justification
The decision on the Certificate of Compliance falls together with the EIA report approval. If the EIA report is found to be not satisfactory the proponent is informed in writing about the concerns of the NEPA regarding it.
Timeline decision-making
Within 45 days from submission of the EIA report it has to be decided if the report is approved. This decision falls together with the decision on the issuing of a Certificate of Compliance.
Possibilities for appeal
Appeal is possible to any person under the Environment Law (2007, article 17) to the Director-General of NEPA. The decision on the granting or rejecting of the Certificate of Compliance can be appealed. The Director will then review the appeal application and take a decision regarding it. If the appellant wishes to appeal this decision of the Director-General of NEPA, the matter will be referred to a relevant court.
Follow-up
Compliance monitoring
The EIA regulations (2008) do not provide requirements for a follow-up on the Certificate of Compliance. However, the non-binding EIA policy (2007) mention follow-up to be part of the EIA process but to provide very limited information on the process. The follow-up process includes ensuring that the terms and conditions of the approval are met.
Non-compliance penalties
NEPA may issue a compliance order if the conditions of the permit have been breached and can required the person to take actions, or take these actions itself and recover the costs and may suspend the license with immediate effect. If the holder of the permit fails to comply with the compliance order he shall be tried by a court of law and shall be sentenced to up to three month imprisonment and/or 10,000 Afghanis (Environment Law article 69-70).
Stakeholder engagement
Public participation requirements for ESIA process stages
It is required by Law that the public can participate in all stages. In the EIA regulations (2008), specific provisions are given for the public participation during the Screening phase.
Article 19 of the Environmental Law determines that affected persons may express their opinion on the following elements:
The proposed activity, plan or policy as such;
The preliminary assessment;
The ESIA report
The final record of opinion;
The comprehensive mitigation plan.
Bearing in mind the reality on the ground in Afghanistan, there is no restriction on form. The proponent will be responsible for collecting comments at, for example, public meetings. However NEPA will perform an oversight function in this regard. During the transitional period, it is anticipated that the proponents will have a mentoring function in relation to NEPA. Although there is a conflict of interests of sorts in this approach, it should be borne in mind that most proponents are donors/ implementing agencies, and that capacity building is the focus of many of their programmes.
The ESIA Law specifies that the NEPA shall not take a decision on the Certificate of Compliance until the proponent has fullfilled several requirements on public participation. Also that the consultant has to have fully consulted with affected people and that he has adequately addressed their concerns is named as a main criteria of the NEPA to decide whether the Certificate of Compliance will be granted or not.
The costs are borne by the proponent in terms of article 18 of the Environment Law.
Environment Law (article19 of the Environment Law ) and regulation 7 (4) of interim EIA regulations
Timeline for public comments
The public has 21 days to comment after the notice of public disclosure, before the NEPA takes a screening decision.
Access to information
See also at the public participation requirements.
The proponent is responsible for distributing copies of the documents that are subject to public review to affected persons. Also the proponent has to inform the public about the documents that are made available through advertising the document and displaying a copy of it for inspection. During the Screening phase, a notice of public disclosure is distributed. Application documents are available at NEPA.
