Vietnam’s Law on Environmental Protection

In late November 2005, Vietnam’s National Assembly passed a revised Law on Environmental Protection (Revised Law). Some of the changes are significant, clarifying and bolstering the framework established in 1993, even advancing the Revised Law beyond comparable laws of the states and territories of Australia. From an Australian perspective, however, other aspects of the Revised Law would appear long overdue or are still lacking.

No regime for clean up of contamination

One notable absence from the Revised Law is a regime addressing contaminated land. While the Revised Law is drafted broadly to require polluters to clean up pollution and even compensate affected neighbours, the Revised Law does not attempt to attribute responsibility for historical contamination or contamination detected after a pollution event has ceased. Vietnamese commentators have described the issue of contamination as being too difficult to address at this time. This view is not surprising given that Australian sate and territory governments are still grappling with how to allocate legal responsibility for contamination.

A licence system is introduced

The Revised Law introduces a licence system for waste producers for the first time. Indeed, the Revised Law will be the first to regulate generators of ‘hazardous waste’ (hazardous waste is defined as any noxious substance). Although the Ministry of Natural Resources and the Environment planned to include a requirement in the Revised Law that authorities and the public be given notice of licence applications and an opportunity to comment on licence applications, the most recent English language draft of the Revised Law does not include any such requirements. The Ministry of Natural Resources and the Environment may, however, specify these requirements in the decree implementing the Revised Law, which is expected to be prepared before the Revised Law commences in July 2006.

No rights of appeal or third party enforcement

The Revised Law also does not include any rights of appeal against decisions of the management agencies charged with granting waste licences. The only opportunity for ‘review’ is for a person whose rights or interests have been infringed to bring an action against administrators for breaching the law or against state agencies for causing pollution. If a person succeeds in any such ‘review’, it appears that the waste licence cannot be revoked.

Partially encouraged by Australia’s Environment Protection and Biodiversity Conservation Act 1999 (Cth), Vietnamese academics and practitioners had urged the Ministry of Natural Resources and the Environment, the drafter of the Bill, to include third party enforcement rights—something rare in environmental laws of the states and territories of Australia. In the end they were left disappointed. No meaningful third party enforcement and review rights were included in the Revised Law.

Community right to know provisions

Despite not including notice and comment requirements for licence applications, the Revised Law contains innovative community ‘right-to-know’ provisions that have no comparison in state and territory laws in Australia. Under the Revised Law, regional environmental protection authorities must report to their communities the names of establishments causing pollution. Community members can also demand businesses or government agencies explain any pollution incidents and any impact a business is having on the environment, as well as any preventative measures the business is undertaking. The Revised Law also stipulates that ‘State of the Environment’ reports must be published at regional, industry and national levels.

Environmental Impact Assessment

The other significant achievement in the Revised Law is in the realm of environmental impact assessment laws. The Revised Law contains more details about the types of projects required to undergo an environmental impact assessment than the previous law, and provides greater certainty about when and how an impact assessment is conducted and assessed. These are all features that are not in Victoria’s Environment Effects (Amendment) Act 2005 (Vic). The Revised Law also embraces strategic environmental assessment and requires government agencies to undertake a ‘stock take’ of the use, benefit and conservation worth of Vietnam’s natural resources to determine how the land can be sustainability used or conserved—two aspects of the Revised Law that would be welcome additions to Australian laws.

This commentary was written by me and published on Freehills’ website. Freehills owns the copyright and should be cited as the author. It has been reproduced here with Freehills’ consent.