Last week, the High Court ruled that the environmental impact assessment of the Hong Kong-Zhuhai-Macau bridge project did not comply with the law. Hence, the decision of the director of environmental protection to approve bridge works was quashed. This was the result of a judicial review application by a 66-year-old woman living in Tung Chung. Her health, like that of many others, has been affected by air pollution.
Between 2004 and 2008, the average maximum daily reading of respiratory suspended particulates in Tung Chung was 13 per cent above the level set by our outdated air quality objectives. Oddly, the environmental impact study claimed that, despite the expected addition of tens of thousands of vehicles that will use the bridge, the air nearby residents breathe will become cleaner because the background air quality will have improved.
Internationally, there are two approaches to pollution control. The first is a "waste bin" approach: it assumes that the environment is a big bucket into which pollutants may be introduced, so long as there is still space within the bucket to accommodate them. The second is a "do your best" approach: even though there is still space in the bucket, every project proponent must adopt all practical means to avoid, reduce or mitigate all pollutants.
It seems common sense that both approaches are essential if the government is to deliver a cleaner environment over time. Indeed, this is the standard practice in many developed countries, as exemplified by two European Council directives in 1996 and the pollution control regulations for England and Wales introduced in 2000.
Yet, our government claims that it is bound only by the "waste bin" approach. Hence, in the case of the bridge project, no serious pollution control measure is needed since, according to its generous estimates, the overall pollution ceiling will "not be exceeded".
Having examined the evidence, the judge Joseph Fok said the Environmental Impact Assessment Ordinance is "to be understood as incorporating the two approaches ... and is not to be construed as if the only relevant yardstick is whether particular benchmarks are exceeded". He continued: "If environmental protection is to be meaningful, it seems to me that it must aim to minimise the environmental impact of any project." In other words, the law does not give officials a licence to pollute, contrary to what the government has claimed since the ordinance came into effect in 1998.
Taking the "do your best" approach, an analysis of future environmental conditions without the project - something omitted in the study for the delta bridge - must be conducted. Otherwise the pollution footprint of the project cannot be measured and nobody can tell whether all practical measures have been employed to deal with the adverse impact.
The implication of this ruling is profound. Far from being a technicality, it will change our approach to environmental protection for future projects, whether in relation to our air and water, noise, waste or biodiversity. It will enable Hong Kong to catch up with international best practice.
Some people worry that this new approach may delay projects and raise their costs. In the case of the delta bridge, some delay and added costs do seem inevitable, whether or not the government appeals against the ruling.
The government owes Hong Kong people an explanation of why it did not conduct a comprehensive environmental assessment in the first place, when the same approach was adopted elsewhere, when precedent rulings have been set in other common law jurisdictions, and when specific concerns were raised by the community in 2009.
This holistic approach is not an academic exercise. The project proponent is obliged to use the best available technology to tackle pollution. For the bridge project, such measures may include mandatory requirements to control local pollution by using cleaner vehicles, cleaner fuel or traffic management techniques. We could also find ways to reduce background pollution, including by accelerating the retirement of old bus fleets, adopting cleaner power generation, or rolling out bolder waste reduction initiatives in place of building more incinerators.
The benefit is clear: everyone in Hong Kong will be a winner.
The judicial independence demonstrated in this case, which flies in the face of a fierce "developmentalist ideology" in the city, bolsters Hong Kong's claim to be an international law-abiding city. Surprisingly, virtually all commentators in the mainland press hailed this as a triumph for the rule of law, a sharp contrast to the views expressed by local pro-establishment figures. Though Civic Party members provided support to the applicant, along with concerned academics and professionals, the credit must go to the judicial system.
Moving on, the government has a duty to fix the flaws in the environmental impact assessment system. For over three years, Civic Party legislator Audrey Eu Yuet-mee has urged a review of the system. The role conflict in the ordinance is obvious: not only is the government both the player (the applicant for most projects) and the referee (the approving authority), but it also appoints the second referee - the Advisory Committee on Environment.
Not surprisingly, public interests will be the loser with few exceptions. This judgment is one of the few.
Albert Lai Kwong-tak is vice-chairman of the Civic Party
(Published in the South China Morning Post on April 28, 2011)