Chapter 3

Case of Public Interest or Concern

Judicial Review concerning Protection of the Environment

Madam X, a resident of Tung Chung which situates not far from the Hong Kong section of the Hong Kong-Zhuhai-Macau Bridge, took out judicial review against the decision of the Director of Environmental Protection (the Director) to grant the environmental permit for the proposed construction of the said section of the HKZM Bridge Project.

The statutory framework

The Environmental Impact Assessment Ordinance Cap. 499 (the EIAO) provides a statutory process for the proponent of a designated project, in this case, the Highways Department (HD), to obtain an environmental permit without which the project cannot commence. HD was to apply to the Director for an environmental impact assessment study brief (SB). HD would then submit a project profile that complied with the technical memorandum (TM) and then advertising it to the public. The TM set out the principles, procedures and requirements for the technical content of a project profile which applied to all designated projects whereas a SB was project-specific. Once a SB was issued, HD was to prepare an environmental impact assessment report (EIA Report) in accordance with the SB and TM and deliver it to the Director who would decide whether it met the requirements. The Director would approve or reject the EIA Report. If it was approved, HD could apply for an environmental permit which the Director would grant or refuse. In this case, based on the project profile submitted by HD, the Director approved the EIA Reports and granted the permits for the HKZM Bridge Project in late 2009.

The legal challenge

With the assistance of legal aid, Madam X raised the question, among other things, whether the impact on the air quality of the HKZM Bridge Project was properly assessed before the environmental permits were granted by the Director. Madam X challenged the Director's decision on the ground that the TM and SBs required the EIA Reports to provide a quantitative stand-alone assessment of the projected environmental conditions without the Project but had failed to do so.

At first instance as well as on appeal, the Director submitted that the EIAO did not require the project proponent to minimize pollution, and there was no legal requirement in the TM and SB to include a stand-alone analysis in the EIA Report. As long as the increases in a particular air pollutant did not exceed the applicable guidelines in the designated project, it would be sufficient. The trial judge accepted the Director's argument that the TM and SB did not require a stand-alone analysis in the EIA Report. However, he was of the view that the increases in a particular air pollutant did not exceed applicable guidelines could not be the sole determining factor in deciding whether to grant an environmental permit. He adopted a purposive interpretation of the overall objective of the EIAO, which is to protect the environment. The trial judge held that "If environmental protection is to be meaningful, it…must aim to minimise the environmental impact of any project and, in the case of air quality, by minimising the amount of pollutants released into the atmosphere. It would be contrary to the purpose of the EIAO…if the statutory scheme in this jurisdiction were to be construed as if it treated the environment like a bucket into which waste may be deposited until it is full. That approach does not protect the environment. Instead, protecting the environment means endeavouring to minimise the environmental impacts of a proposed project".

The judge ruled in favour of Madam X and quashed the Director's decision, adopting a purposive approach and finding that it was only by knowing the starting point, i.e. the stand-alone position, that a project's environmental footprint could be measured and the Director could decide what mitigating measures should be adopted.

The Director appealed and Madam X cross-appealed on various grounds. The Court of Appeal rejected the Director's submission that the EIAO was not concerned with the minimisation of pollution. The EIAO, by the TM and SBs, required the minimisation of pollutants as well as imposed limits on the quantities of polluting matter which might be emitted. However, that duty did not depend on the extent of the footprint of a designated project. Whatever the footprint, a project proponent must minimise pollution. Accordingly, it was not necessary to construe the TM or SB as requiring a stand-alone assessment in order that the Director could decide what mitigating measures should be adopted.

The Court of Appeal commented that had counsel for the Director informed the trial judge, as they had acceded during appeal that both the TM and SB require the project proponent to minimise pollution such that, had the proponent failed to do so, the EIA Report would not have been approved, they did not believe the trial judge would have found it necessary to read a requirement for a stand-alone assessment into the TM and/or SB.

Although the Director's appeal was successful, the court decision makes it clear that EIAO does impose a legal duty on the project proponent to minimize pollution in any designated project.