ارزیابی اثرات زیست محیطی فرامرزی در منطقه دلتای رودخانه پرل : آیا نقشی برای ارزیابی زیست محیطی استراتژیک وجود دارد؟

China's EIA Law does not require transboundary proposals to be assessed, despite recognition of this globally, for example in the Espoo Convention and Kiev Protocol, and in the European EIA and SEA Directives. In a transboundary context assessment within a state is unusual, as regulating these effects is primarily about the relationship between states. However where a state has more than one legal system such as in the Pearl River Delta (PRD) Region of southern China, transboundary effects should also be addressed. Yet despite the geographical connections between Guangdong Province in mainland China (where the EIA Law applies) and the Hong Kong and Macau Special Administrative Regions (which have their own provisions, neither of which requires transboundary assessments), EIA and SEA are carried out separately. Coordinated or joint approaches to transboundary assessment are generally absent, with the legal autonomy of Hong Kong and Macau a major constraint. As a result institutional responses at the policy level have developed. The article considers global experiences with regulating transboundary EIA and SEA, and analyses potential application to land use, transport and air and water planning in the PRD Region. If applied, benefits may include prevention or mitigation of cumulative effects, broader public participation, and improvements to environmental governance. The PRD Region experience may encourage China to conduct and coordinate EIA and SEA processes with neighbouring states, which has been non-existent or extremely limited to date.

This article examines the potential application of transboundary strategic environmental assessment (SEA) in the Pearl River Delta (PRD) Region of southern China. It is an exploratory study based on interdisciplinary literatures and recent developments with law and policy that have seen an expansion of institutional measures designed to address environmental issues in the PRD. The proliferation of cross boundary major infrastructure development in the absence of an assessed strategic framework has provided the motivation, together with emphasis placed on difficulties regulating cross border environmental problems in the PRD (e.g. Lee, 2002), and underlying contextual constraints (e.g. Bina, 2008) upon which this article attempts to build. It is also informed by the recent focus given to transboundary dimensions of environmental impact assessment (EIA) and SEA globally which is proving to be a useful tool for this purpose. This is further seen to be influenced greatly by context, which if not supportive may undermine effectiveness (Kersten, 2009). While referring to experience with transboundary EIA (TEIA) globally for comparisons and differences, (which is primarily limited to the project level), the key structural impediments to coordinated or joint EIA and SEA processes in the PRD Region (which derive from the reality of constitutional law) are emphasized. Comparisons with the experiences of other jurisdictions are tentative because the socio-economic and political-legal differences mean that there are inevitably limitations to the application of lessons from elsewhere. There are, however, reasons to be positive about the role of TEIA and SEA in the future development of the PRD Region. This is for the very reason that cooperation between the jurisdictions has been policy rather than law based which is consistent with much SEA experience to date, especially concerning application to policy and legislative proposals. The article will begin by defining TEIA and SEA, and consider briefly international experience and its relevance to the Region. It will then explain the legal relationships between the jurisdictions and their implications, outline current jurisdiction specific regulation of EIA and SEA (primarily in Hong Kong and mainland China where the law is most developed), before providing an overview of the development situation in the PRD Region, giving examples of economic development projects and their environmental effects which have been separately assessed under the relevant law of each of the jurisdictions. It will then give some examples of strategic documents which influence this development activity but which have not to date been subject to assessment. In a discussion section, constraints and opportunities for TEIA and SEA in the PRD Region are examined. The relevance of TEIA and SEA in the relationship between China and other neighboring states will also be briefly considered, and the political context of operation emphasized in the conclusion.

The political context for TEIA and SEA has been noted throughout this article and some concluding comments are appropriate. One of the general lessons learnt from international experience with TEIA is that a high level of political support is needed, as the ‘political context in which the T[E]IA is conducted can have a profound impact on the T[E]IA. Politics can assist the process or it can complicate and impede it, particularly if certain outcomes are prescribed or proscribed’ (Bruch et al., 2007, p. 403). Securing political support is particularly important to overcome issues of sovereignty and the incompatibility of national systems; it is also needed to enable the effective implementation of the principle of non-discrimination, given the recognized importance of meaningful public participation. Challenges deriving from the political context are enhanced with regard to transboundary SEA, where decision making is further complicated by the need to coordinate in respect of policy and other strategic issues such as land use planning. Building trust and goodwill regarding issues of common concern is a precondition to cooperation, and applying procedures in an ad hoc manner initially is certainly better than not applying them at all, especially if lessons learnt from the process leads to acceptance and greater formality at a later stage. The political context for TEIA and SEA in the PRD Region will however continue to be subject to the restraints of constitutional law while the Hong Kong and Macau SARs retain their separate status. This article has argued that this should be seen as an advantage for building on existing cooperation mechanisms, which if successful may provide a model for the development of TEIA and SEA between China and other states.