Teghut V The Grey Area

by Kirk Wallace, AEN Armenia Office Director

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I recently had a discussion with a Diasporan concerned about Armenia’s future.  I was explaining why I was still hopeful for positive change in Armenia, citing Trchkan and Mashtots Park as recent examples of progress.  The conversation shifted to Teghut and it was here that my friend expressed concerns about “progress”.  It seemed to him that the activists were forced into the role of “putting out fires” like Trchkan, Teghut, Kajaran, Sotq and on and on.  He made the cogent argument that what is really needed is a change in the way environmental impact assessments (EIAs) are conducted and enforced.  We discussed the problem of “grey areas” suffused within the laws and requirements of the EIA process.  This entry will briefly examine the existing law that opposition groups continually cite as being violated in the licensing and operation of the Vallex mine in Teghut.

What then should be the process, if a business or the government wants to establish a factory, operation or structure on land that will incur environmental changes?  Fortunately, Armenia has a series of laws in place that outline these procedures.  This is the good news.  The public has the ability to track the required steps and raise awareness if there are indiscretions.  The bad news is that the government has not shown much concern for the awareness-raising of opposition groups, particularly as concerns the mining issue.  In fact, it may be safe to say, that when it comes to mining in general, there is a blatant disregard for all things procedural, lawful and truthful.

For the proper procedure, I went to two sources.  The first was Sona Ayvazyan of Transparency International (TI). Ms. Avazyan outlines three basic stages of the Environmental Impact Expertise (Assessment) in Armenia.  I also looked at the Republic of Armenia’s Law on Environmental Impact Assessments, 1995.  From this law I will examine articles 3, 5, 9, 10, 11 and 17 to try and make sense of the procedure.  I took these excerpts from Policy Forum Armenia’s Second Annual Report from 2011.  I understand that the reading is dry, so I included the excerpted Articles at the bottom of this blog entry for the hardcore legal eagles amongst you.

According to Ms. Avazyan there are three stages involved in an Environmental Impact Assessment.  In Armenia, the word “assessment” is not used; rather “expertise” is the preferred word.  Expertise is a holdover term from the Soviet era and is, for our purposes here, roughly equivalent to the Western use of “assessment”.

Stage 1

This requires the developer to notify the Ministry of Nature Protection (MNP), also known as the “authority”, that they intend to construct some sort of facility.  The authority then:

  • Notifies the public
  • Provides terms of reference for the project.  The “terms of reference” are essentially the scope of the assessment process that the developer must adhere to.
  • With the very recent change in the EIA law in Armenia, there are now three categories of project scope:
    • A: large scale projects (such as Teghut)
    • B: midsize projects
    • C: small scale projects that often will not require a comprehensive EIA

Stage 2

This stage requires the developer to complete an EIA, based on the terms of reference (scope of assessment) provided by the authority (MNP).  A complete and comprehensive EIA is required here.

For Stages 1 & 2, both the authority and the developer should rely on Articles 3 & 5 (among others) of the Republic of Armenia’s Law on Environmental Impact Assessments, 1995.  As previously mentioned I have provided excerpts of these at the end of this entry.  In short:

  • Article 3 states that an environmental impact assessment must be done and the public must be involved in every phase of the process.
  • Article 5 directs what is to be covered in the environmental impact assessment.

Stage 3

This stage requires the developer to bring the report to the authority in order for an “expert conclusion” to be completed.  These stipulations are covered in Article 9 of the RA Law on EIA and must be presented by the authority within 70 days of completion.  Upon the completion of this task the following procedures must then be followed:

  • Public hearings must be held within 30 days of completion of the experts’ conclusions.  The public must be given 7 days notice of the hearing.  Both requirements are listed in RA Law on EIA, Article 10.
  • Per Article 11 of the RA Law on EIA, after the public hearings, within 20 days, the authorized body (MNP) makes a final decision on the assessment’s conclusion, based on:
    • Expert conclusions
    • Public hearings and discussions

The authorized body, the MNP is responsible for the validity of all information and processes as stipulated by Article 17 of the RA Law on EIA.
The “grey area” alluded to in the beginning of this post exists throughout the three stages.  For example, an “industry” scientist can claim the EIA was comprehensive and thorough in direct contradiction to an “activist” scientist.  The authority (MNP) can claim that fair and open public hearings were held while the opposition can claim that information produced was misleading or missing altogether.  Inasmuch as the grey area exists, the authority can claim that it technically did not violate the laws of the land.  The same holds true of the developer.

Then there is the whole issue of enforcing the actions and mitigations recommended in an EIA.  In the case of the EIAs conducted by both Lernametalurgiai Institut (LMI) and Environmental Resources Management (ERM), for Teghut, there is real concern that these will once again fall into the Grey Area.  Vallex can claim that they are following the recommendations, and the activists can claim they are not.  There does not exist in Armenia a legitimate, independent and transparent body that regulates enforcement procedures.   What options, then, are left for the activists?  Failing to prove outright fraud on the part of the authority and developer leads them to rely on the “spirit of the law” argument.  Transparency International believes there are clear violations of the Aarhus Convention in the Teghut case (these were outlined in my previous blog entry, Teghut IV: The Gate). The problem is that Aarhus has no teeth, no enforcement mechanisms, which the Armenian government and mining industry understand.  So, activists are left to take their chances in state courts and in the court of public opinion.  So far, neither has produced results.

Back to my recent conversation with a Diasporan friend. That friend came to the conclusion that the only way to ensure protection of the environment, in the long run, is to create policy change at the highest levels of government.  This would include revamping the EIA procedures and methodologies and including legitimate enforcement measures to ensure recommended actions and mitigations be carried out.  This would all have to be approved by a parliament that recently passed legislation, which actually weakens EIA laws in Armenia (the legislation was rejected by President Sargsyan).  It is an understatement to say that proponents of new EIA laws and policy have their work cut out for them.

Next week’s entry will be the last of this series and will wrap up some final thoughts and observations on the Teghut saga.

 

EXCERPT FROM THE RA LAW ON ENVIRONMENTAL IMPACT ASSESSMENTS, 1995

The following are excerpts of selected articles of the law taken from Policy Forum Armenia’s 2010 State of Armenia’s Environment Report. For the full text of each article and the entire law, please click this link.

 

Article 3 — The objectives of environmental impact assessment are as follows:

  • Inspection of the degree of the possible ecological effect of intended activities, concepts and the possibility of their alternatives; the integrity of consequence analysis and accuracy; the adequacy of measures for monitoring, prevention, elimination or minimization of consequences during operation and implementation processes as well as in emergency situations
  • To provide efficient and reasonable use of natural resources
  • To prohibit any intended activity which can have an irreversible hazardous effect on the environment, unless otherwise stipulated in the Armenian legislation
  • To provide participation and involvement of public in all phases of assessment

Article 5 —Scope of Assessment

Assessment must at least cover forecasting, description and appraisal of possible direct and indirect impacts of intended activity related to:

weather conditions, flora and fauna, individual elements of eco-systems, their inter-relations and stability, specially protected natural areas, landscapes, geomorphologic structures, air, surface and ground waters, underground, and soils.

Article 9 — Expert conclusions on document assessment

Within 70 days after the receipt of documents, the authorized body provides the preparation of the expert conclusion by authorized persons.

The following is subject to assessment during the adoption of an expert conclusion:

  • The validity of the documents
  • The opinions of the general public, affected community and interested state bodies
  • The whole complex of all positive and negative impacts of the intended activity on the environment, as well as their inter-relations
  • The applied assessment methods and the completeness of data

Article 10 — Procedure for public hearings concerning expert conclusions on the documents

  • After receipt of the expert opinions element, public hearings must be held within 30 days
  • There must be a 7 day notice of the hearings

Article 11 — Procedure of expert conclusion on the intended activities documents

After the public hearings, within 20 days, the authorized body (MNP) makes a decision on the issuance of assessment conclusion based on the expert conclusion, public discussions and the minutes of the public hearings results.

Article 17 — The responsibilities of the authorized body

The authorized body when performing environmental impact assessment is responsible for:

  • the validity of the conclusion;
  • the observation of principles, procedures, norms and deadlines;
  • providing necessary documents and materials;
  • providing necessary working conditions;
  • publicity.

 

AEN