environmental disputes and compensation for environmental damage. [14, paragraph 4, Article 5]
Currently, violations of environmental protection laws are increasing in number and becoming more complex in nature. Meanwhile, sanctions against individuals and organizations violating environmental protection laws according to current regulations are not deterrent enough and are not satisfactory. Therefore, it is necessary to strengthen sanctions against violations of environmental protection in the current context.
2.2.2.3. Inspection and supervision activities of the Environmental Police agency
On November 29, 2006, the Minister of Public Security signed Decision No. 1899.
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/2006/QD-BCA established the Environmental Police Department, and on September 17, 2007, the Minister signed a Decision to establish the Environmental Police Department under the police of provinces and centrally-run cities. The environmental police agency has the function of preventing, detecting, and combating crimes; investigating and handling other environmental violations according to the provisions of law. To perform its functions, the environmental police force (EPF) has the right to request agencies, organizations, enterprises, and individuals to present documents, explain issues related to environmental safety when there are signs of violations of environmental laws or has the right to request agencies, organizations, enterprises, and citizens to provide information, documents, and coordinate to clarify violations of environmental laws; Take preventive measures and combat crimes and violations of environmental laws in production, business, import and export, exploration and exploitation of resources, ecological environment, nature reserves, residential areas...
This is an important step forward in environmental protection work in our country in recent times. The CSMT force contributes to supporting state management agencies on environmental protection in implementing environmental protection work.
Recently, the National Assembly Standing Committee has allowed the CSMT agency to investigate and prosecute cases. Specifically, in Clause 3, Article 1 of the Ordinance amending and supplementing a number of articles of the Ordinance on organizing criminal investigations, passed by the National Assembly Standing Committee on February 27, 2009. This contributes to expanding the authority of
The Environmental Police Agency creates conditions for this agency to more effectively perform its functions and tasks of environmental protection.
Currently, the authority and responsibility of the environmental police agency are not stipulated in legal documents on environmental protection, because this agency was newly established (in 2006). In fact, the level of participation in inspection and supervision of the environmental police force for each stage of the project is different. During the project construction phase (when there is a decision to approve the EIA Report until there is a confirmation document from the approving agency), participation in the process of inspection and supervision of the implementation of the EIA report content is very little, if not non-existent. Because the environmental protection law does not stipulate the authority and responsibility of the environmental police agency in this matter. During this phase, the responsibility mainly belongs to the agency approving the EIA report. If anything, the environmental police agency will participate when serious violations of the law are discovered during the project construction process. During the project's operation phase, the participation of the CSMT agency in the inspection and supervision of the implementation of environmental protection obligations of the projects (at this time, the operating facilities) is the implementation of its functions and tasks.
In the process of performing its functions and tasks, the Environmental Protection Force has the right to handle organizations and individuals who violate environmental protection laws according to its authority. Currently, the issue of applying forms of handling (sanctions) to subjects violating environmental protection laws still has many shortcomings that need attention. Even though the Environmental Protection Force is the agency with the function of investigating and handling violations of environmental protection laws, it was not until the Ordinance amending and supplementing a number of articles of the Ordinance on handling administrative violations dated April 2, 2008 that the Environmental Protection Force's right to handle administrative violations was stipulated, and it was not until February 27, 2009 that the right to investigate and prosecute criminal cases was stipulated [Clause 3, Article 1 of the Ordinance amending and supplementing a number of articles of the Ordinance on organizing criminal investigations passed by the Standing Committee of the National Assembly on February 27, 2009 ]
Next, the administrative sanctions stipulated in Decree 81/2006/ND-CP on administrative sanctions for violations in the field of environmental protection are not deterrent enough and are not satisfactory. The administrative sanctions are not only low, but also very difficult to criminally prosecute violators because of the entanglement in current legal regulations on this issue [21]. That reduces the effectiveness and capacity to handle violations of environmental protection laws, the environmental protection work of the environmental protection force in particular, and state agencies on environmental protection in general.
2.2.2.4. Community monitoring activities
The community is not a specific entity but all agencies, organizations and individuals in society. In the monitoring of EIA, the community is all components of society where the project is implemented (where EIA activities take place) - the entities directly affected by environmental impacts caused by project activities. Community participation in the EIA process in general, appraisal of EIA reports and inspection and supervision of the implementation of EIA report content in particular is very important. It contributes to increasing the transparency of EIA, collecting unpublished information, exploiting indigenous knowledge, etc. In addition, the community where the project is implemented is the one who bears the greatest environmental damage caused by these projects. Therefore, the community often has an intrinsic motivation to enforce and supervise the compliance with environmental protection laws of relevant entities [20]. Based on those meanings, the current environmental protection law has more specific and detailed regulations on community participation in environmental impact assessment activities compared to previous regulations. Specifically in Clause 6, Article 21 of the 2005 Law on Environmental Protection; Clause 4, Article 1 of Decree No. 21/2008/ND-CP; Section 2, Part II of Circular 05/2008/TT-BTNMT...
Regarding the concept of “community”, the Law on Environmental Protection has not been clearly defined. If understood according to the provisions of Clause 6, Article 21 of the Law on Environmental Protection 2005, the community includes “organizations, residential communities, individuals”. But if according to the provisions of
As stipulated in Section 2, Part II of Circular 05/2008/TT-BTNMT, the community only includes the People's Committee and the Fatherland Front Committee at the commune level. The Fatherland Front Committee at the commune level has member organizations such as: Farmers' Association, Women's Union, Youth Union... So, are other components such as: individuals, households, residential areas, social organizations, associations, and other civil organizations part of the community? In essence, the People's Committee at the commune level is a state management agency, while the Fatherland Front Committee is an agency representing the people. Some experts believe that, normally, the Fatherland Front Committee is an agency representing the people. But this agency itself is less interested in the environmental field and operates more of a state nature. Is this organization completely suitable to represent the community in the EIA report appraisal council? [38]. The author completely agrees with this point of view.
In the author's view, the community includes organizations (civil society organizations: Associations, unions, economic organizations...; socio-political organizations and including State agencies such as People's Committees at the commune level, People's Councils...), residential communities (households, residential areas, residential groups...) and individuals. When the Law on Environmental Protection considers the community as a subject with an important role in environmental protection work, the powers and strengths of the community are brought about by the powers and strengths of each individual, household, agency, and organization that are members of the community. Therefore, the tools for monitoring the enforcement of environmental protection laws by the community are the tools that the law has prescribed for individuals, households, agencies, and organizations, including the right to complain, denounce, petition, and sue [33, 34].
In the appraisal stage of the EIA report, the participation of the community is shown in the provisions of Clause 6, Article 21 of the Law on Environmental Protection 2005, specifically, organizations, residential communities, and individuals have the right to send requests and recommendations on environmental protection to the appraisal organization specified in Clause 7 of this Article; the appraisal organization is responsible for considering such requests and recommendations before making conclusions and decisions. Based on the nature of the project and the specific conditions of the appraisal, the appraisal organization decides to invite representatives of the agency.
The State management agency for environmental protection at the district level, representatives of the People's Committee at the commune level, representatives of the Fatherland Front Committee at the commune level where the project is implemented, representatives of the State management agency managing the sector or field related to the project and representatives of social organizations and socio-professional organizations participating in the official meeting of the Council [6, Clause 1, Article 20]. Although there are specific regulations on community consultation during the EIA process, appraisal of EIA reports and inspection and supervision of the implementation of EIA report contents, in reality, community participation is often a formality and does not really promote its significance. In big cities such as Hanoi and Ho Chi Minh City, this work is carried out quite seriously; in remote, poor, backward areas or areas with low education, this activity hardly takes place, or if it does, it is only a formality [38].
During the project construction phase, the environmental protection law does not specifically regulate the participation of the community in monitoring the project owner's compliance with the contents of the EIA report, but indirectly regulates this issue. Specifically, at Point b, Clause 1, Article 23 of the 2005 Law on Environmental Protection, it is stipulated that the project owner is responsible for publicly posting at the project implementation site the types of waste, treatment technology, waste standard parameters, and environmental protection solutions for the community to know, check, and supervise. At Point b, Clause 5, Article 14 of Decree 80/2006/ND-CP, it is also stipulated that "... the district-level Department of Natural Resources and Environment and the community where the project is implemented to arrange a monitoring and inspection plan". Thus, the community's participation in monitoring during this phase is passive because the law does not directly regulate the rights or have mechanisms for the community to exercise its rights. Representatives of the residential community (Commune-level People's Committee, Commune-level Fatherland Front Committee) can be invited to participate in the inspection and examination team of the competent authority to conduct the inspection. Other subjects such as individuals and civil society organizations conduct supervision in the form of detecting violations by project owners in implementing mitigation measures, environmental protection commitments or construction activities.
If a project causes pollution or environmental degradation, these entities have the right to petition, complain or denounce to the competent state agency for handling.
During the project's operation phase, community supervision is demonstrated by monitoring project activities to see if they cause environmental pollution or degradation (such as waste treatment activities, wastewater discharge of the project in practice, etc.) to provide information to competent state agencies in the above-mentioned ways. The community can establish a self-governing organization for environmental protection in accordance with the provisions of Article 54 of the Law on Environmental Protection 2005. Also according to the provisions of Point d, Clause 1 of this Article, the community (self-governing organization) has the duty to participate in monitoring the implementation of environmental protection laws by production, business and service establishments in the area. From there, notify the competent state agency to handle according to the law. The People's Committee at the commune level has the function of being both a state management agency for environmental protection and a representative entity for the community with the powers and responsibilities stipulated in Clause 3, Article 122 of the Law on Environmental Protection 2005. The Vietnam Fatherland Front is responsible for "supervising the implementation of the law on environmental protection" [33, Clause 1, Article 124 ] . The mechanism for the community where the project is located to exercise these rights is mainly according to the provisions of Article 128 of the Law on Environmental Protection 2005 and the provisions of the Law on Complaints and Denunciations. If the project owner violates the law on environmental protection, causing direct impacts - damages - to the community, the community has the right to file a lawsuit with a competent state agency (Court) to protect its legitimate rights and interests. In reality, the mechanism for resolving civil disputes in the environmental field between project owners (the party causing damage) and the community (the damaged party) has not been clearly and reasonably regulated. Therefore, the damaged party cannot protect its legitimate rights and interests, causing frustration in today's society.
Recently, in some provinces, the People's Council (the representative body of the people) has had a program and mechanism to annually monitor the implementation of environmental protection for development activities. For example, the Standing Committee of the People's Council
In 2008, Dong Nai province conducted monitoring and re-monitoring of dozens of industrial parks[40]. That has greatly contributed to the effectiveness of environmental protection work in the locality.
One of the limitations in the current legal regulations of our country is that the law stipulates fragmented, scattered and not specific rights of community supervision on environmental protection issues. In particular, besides that, there is no regulation on the mechanism (order, procedure) for handling people's petitions related to environmental protection work. At the same time, there is a lack of mechanism to punish entities that do not comply with the settlement of requests, complaints and petitions of people. This has led to tension in public opinion in some localities in recent times regarding this issue.
2.2.2.5. Coordination relationship between responsible entities and the right to inspect and supervise the implementation of the content of the EIA report.
Between the approval agency and the state management agency on environmental protection (and affiliated specialized agencies on environmental protection).
The relationship between the approving agency and the state management agency on environmental protection is a vertical relationship between superiors and subordinates. For example, the agency approving the EIA report at the provincial level is the Provincial People's Committee (Chairman of the People's Committee), the state management agency on environmental protection (specialized agency) is the Department of Natural Resources and Environment. The specialized environmental agency under the agency approving the EIA report has the function of assisting the agency approving the EIA report in performing state management in the field of environmental protection. "The Department of Natural Resources and Environment assists the Provincial People's Committee in performing the tasks and powers of state management on environmental protection in the provincial area prescribed in Points b, c, d, dd, e and g, Clause 1, Article 122 of the Law on Environmental Protection''[16, Clause 1, Article 6]. The state management agency on environmental protection performs its functions in accordance with the provisions of law and under the authorization of the agency approving the EIA report.
Between the approval agency, the state management agency on environmental protection and the Environmental Police agency.
This is a cooperative relationship between two organizationally independent agencies. The state management agency for environmental protection has the function of state management in the field of environmental protection, while the Environmental Police agency has the main function of implementing measures to prevent, detect, and combat crimes and other violations of environmental laws. After a period of implementation, the Environmental Police force has proactively developed work plans and coordinated with functional agencies (Ministry of Natural Resources and Environment, relevant ministries/sectors, People's Committees of provinces and cities...) to detect and handle many cases of violations of environmental protection laws, causing public outrage. In order to implement Directive No. 24/2008/CT-TTg dated August 8, 2008 of the Prime Minister on strengthening the work of preventing and combating crimes and violations of the law on environmental protection, on February 6, 2009, the two agencies (headed by the Ministry of Public Security and the Ministry of Natural Resources and Environment) issued Joint Circular No. 02/2009/TTLT-BCA-BTNMT dated February 6, 2009 guiding the coordination relationship in the work of preventing and combating crimes and violations of the law on environmental protection. The Circular has set out the principles of coordination of activities between the two agencies and at the same time guided specific coordination contents such as: Coordinating information exchange; inspecting and handling violations of the law on environmental protection; combating and preventing environmental crimes; Coordinate propaganda, dissemination, and legal education activities... This is a new step forward contributing to the effective coordination between functional agencies in environmental protection work.
Between the approval agency, the state management agency on environmental protection and the Environmental Police agency with the community.
The community, represented by relevant organizations (Commune-level People's Committees, Commune-level Fatherland Front Committees) participates with state agencies on environmental protection to inspect and supervise the implementation of the EIA report when invited. Currently, our country's law does not have specific regulations on the inspection mechanism.