Among potential deviations from an Approved EIA, changes in scale, capacity and technology could be an arguable issue in any investment project because of the following:

While under the Environmental Law 2014, it is an increase in scale, capacity of the project that could trigger the requirement of EIAR reformulation, under Decree 18/2015 even a change of the same may trigger such requirement;
Worse still, it is implied under the prescribed form of EIAR Approval Decision (as issued under Circular 27/2015 guiding environmental impact assessment) that in case of any change as compared to the Approved EIAR, the project owner must report in writing to the EIAR Approving Authority to obtain the authority’s consent as a condition for execution of the change; and
Those applicable regulations are not clear (i) which elements of an investment project are the subject of change in scale, capacity and technology as mentioned above (for example, whether they are a project item that generates waste or an environmental protection facility?); and (ii) which criteria and how to assess the increased adverse impacts on the environment.

Considering the above, a project owner may need to:

make clear in the project’s EIAR what constitute a technology of the project given that (i) this element is more complicated than scale and capacity elements to assess; and (ii) Vietnamese law provide no clear guidance to determine a change intechnology;
if possible, propose acceptable alternatives regarding the scale, capacity and technology as a back-up plan of the environmental solutions under the EIAR; and
prepare all necessary scientific and legal grounds (e.g. monitoring data, analysis, applicable regulations and standards under the relevant laws) to prove that a deviation from the Approved EIAR does not increase adverse impact on the environment.

This post is contributed by Nguyen Bich Ngoc, a VILAF associate.

Vietnam Business Law