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August 28th, 2011:

The importance of environmental impact assessment reports: the Hong Kong Zhuhai Macau Bridge judicial review

In April this year, the Court of First Instance (“CFI”) handed down its decision in a judicial review case against the Director of Environmental Protection (the “Director”), quashing her decision to approve the Environmental Impact Assessment Reports (“EIA Reports”) and issue the environmental permits for the Hong Kong Zhuhai Macau Bridge (“HKZMB”) projects.

The Court ruled that the absence of ‘baseline’ environmental reports rendered the EIA Reports not compliant with the Technical Memorandum (“TM”) and Study Briefs (“SB”s), which set out the requirements for the EIA Reports. As the EIA Reports did not provide meet the necessary requirements, the Director did not have the power to approve the EIA Reports nor environmental permits, as approved in late 2009. The decision is a further example of the rigorous interpretation of the Environmental Impact Assessment Ordinance (“Ordinance”).

The decision has caused substantial delays to the HKZMB projects and is said to have had a knock-on effect on other major projects. This is because the decision was based on an interpretation of the purpose and requirements of the Ordinance and the TM, which will apply to all designated projects.

Prior to this decision, the general approach was for EIA Reports to measure the cumulative impact on the environment, and ensure that such impacts fell below the maximum allowable levels. The argument before the Court was that the Director should measure the impact from the baseline position and then decide whether that level of impact is acceptable or not.

The Director lodged an appeal against the CFI decision, and appeal was heard this week. We are now waiting to see whether the Court of Appeal will uphold the CFI decision to require baseline reports to be included in all future EIA Reports.

What is an EIA Report?

The Ordinance requires all “designated projects” within the meaning of s.4 of the Ordinance to obtain environmental permits before construction commences. In order to obtain the permit, the applicant or project proponent must prepare an EIA Report containing an analysis of the likely environmental impact of the project.

To start the process, the project proponent must submit a project profile that complies with the TM to the Director and advertise the project to the public. The TM is standard to all designated projects and is issued by the Secretary for the Environment pursuant to the Ordinance.

The Director will inform the Advisory Council on the Environment (“ACE”) about the project profile and ACE or any other person may comment on the project profile. The Director may ask the project proponent for further information as required. The Director will then issue to the project proponent an environmental impact assessment study brief (the “SB” referred above), which is particular to that project.

In accordance with the requirements of the SB and the TM, the project proponent prepares the EIA Report, which is delivered to the Director for approval. The Director then makes a provisional decision whether or not to approve the EIA Report and, if approved, the EIA Report is published for public inspection. Again at this stage, members of the public or ACE may comment on the EIA Report. The Director may call for further information as a result of any comments.

Once the Director is satisfied with the content of the EIA Report, she must approve, approve with conditions or reject the EIA Report.

The final stage is the application for the environmental permit, which the Director may issue subject to any conditions she thinks fit, having considered a number of factors including the EIA Report.

A designated project may not be commenced without the necessary environmental permit.

Why did the CFI find the HKZMB EIA Report deficient?

In the HKZMB case, Chu Yee Wah (“Ms Chu”), a resident of a public housing estate in Tung Chung, brought judicial review proceedings seeking orders to quash the Director’s decisions to grant approval for the EIA Reports and environmental permits for the construction of the HKZMB. Broadly speaking, Ms Chu alleged that (i) the EIA Reports did not comply with the requirements of the TM and SBs, and (ii) the decisions of the Director in approving the EIA Reports and environmental permits were irrational or Wednesbury unreasonable.

At trial, Ms Chu sought to challenge the decisions on seven grounds (which we will discuss briefly below) but succeeded on the first ground only. Nevertheless, her success on the first ground of challenge was sufficient for the Director’s decisions to be quashed.

The Requirement for a Baseline Report

Ms Chu’s first and successful ground of challenge was that the TM and SBs require the EIA Reports to provide a quantitative ‘stand-alone’ analysis of the project environmental conditions without the HKZMB project in place, otherwise known as a ‘baseline report’.

It was accepted by both sides that the EIA Reports covered only the cumulative environmental impacts (i.e. the conditions with the projects in place) and no baseline report. The question at hand was whether the baseline report was in fact required, there being no explicit requirement for such a report but only broad principles and general wording in the TM.

While the CFI Judge accepted the Director’s arguments that there was no explicit requirement for a baseline report, he adopted a purposive approach to interpreting the Ordinance. He referred to the case of Shiu Wing Steel v Director of Environmental Protection 2006 9 HKCFAR 478, where the Court of Final Appeal held that “the purpose of the [Ordinance] as declared in its long title governs its interpretation and also that its purpose of protecting the environment must inform the meaning attributed to the TM and SB, being instruments created under its authority“. [Hogan Lovells acted for the intervener in these proceedings.] The CFI decided that, without the baseline report, it would not be possible to assess the environmental impact of the project and consequently not be possible to propose suitable mitigation measures to minimise the pollution, residual and cumulative effects: “it is only by knowing the starting point […] that one is able to measure that footprint“.

For the Director, the following caveats were cited from R (on the application of Blewitt) v Derbyshire CC [2003] Env. LR 29, “… it is an unrealistic counsel of perfection to expect that an applicant’s environmental statement will always contain the ‘full information’ about the environmental impact of a project […] it would be of no advantage to anyone concerned with the development process […] if environmental projects were drafted on a purely ‘defensive’ basis, mentioning every possible scrap of environmental information just in case someone might consider [it] significant at a later stage […]”. While the CFI Judge agreed that it was sensible to apply these caveats, he maintained that this was not a sufficient reason to disregard the need to provide an EIA Report which properly identifies the scale of the environmental changes resultant from a particular project.

Accordingly, the absence of a stand alone analysis in the EIA Reports meant that they did not comply with the TM and SBs and that the Director’s decisions to approve them and the environmental permits were quashed.

What were the Unsuccessful Grounds of Challenge?

As noted above, Ms Chu challenged the Director on seven grounds but was unsuccessful on grounds (ii) – (vii).

Grounds (ii) – (v) also related to the methodologies followed in the EIA Reports. These were challenges to (ii) the analytical model selected to assess air quality (the PATH model) and lack of explanatory data presented in the EIA Reports to verify the results; (iii) the assessment year chosen to represent the worst case scenario; and (iv-v) the lack of assessment of ozone and sulphur dioxide.

In relation to the choice of the PATH model, the CFI Judge held that the explanatory data were not required for the EIA Reports and if desired, the data could have been requested during the public consultation period. In relation to grounds (iii) – (v), the CFI Judge held that the SBs as drafted allowed the project proponent discretion to decide on these factors, so long as the decision could be reasonably explained. In this case, those decisions were found not to be unreasonable.

Grounds (vi) – (vii) were that the Director had failed in her duty to consider the impact on public health and the health risk posed by pollutants such as toxic air pollutants and fine suspended particulates (which are currently excluded from the present Air Quality Objectives (“AQO”s) before issuing the environmental permits. As there was no evidence that the projected air quality would breach the AQOs, the Director had acted reasonably in relying on the AQOs to assess the impact on public health – the AQOs being the Government’s current policy for acceptable level of air pollutants, taking into account public health.

What Does this Mean for Future EIA Reports?

The tangible result of the HKZMB case (subject to the outcome of the appeal) is that all EIA Reports must now contain a baseline report, as a starting point to assess the environmental impact of any project.

However, when considering whether an EIA Report needs to mention “every possible scrap of environmental information just in case someone might consider [it] significant at a later stage“, project proponents may seek some comfort in the Court’s rejection of the other six grounds of challenge, which were dependent on interpretation of and adherence to the requirements of the TM and specific SBs.

At the first stage, when preparing a project profile, project proponents must ensure that the project profile accurately reflects the parameters of the target project. Then, once the SB has been issued, project proponents should carefully review the requirements of the TM and SB when preparing their EIA Reports to ensure that they are fully compliant or risk rejection or a challenge to the granting of a permit.

AQO consultation facts PM2.5 killer deliberately omitted by EPD

Need for Review

3.5 In October 2006, the WHO released a new set of AQGs. A number of overseas countries / economies such as the US, the European

Union (EU) and Australia have also updated their AQOs or air quality standards in the light of new scientific evidence and data

on health effects of air pollution. Annex C gives a comparison between Hong Kong’s existing AQOs, the air quality standards

being adopted by other countries / economies and the latest AQGs issued by the WHO. The current AQOs are lagging behind

those being pursued by other developed countries / economies in at least two aspects –

(a) they allow for much higher concentration levels of key

pollutants; and

(b) they do not provide for the assessment of fine suspended

particulates (FSP or PM2.5), which has been scientifically

proven to have greater adverse impact on human

health than PM10.3

PM10 and PM2.5 refer to particulate matters (PM) with particle sizes of less than 10 microns and 2.5 microns respectively. Recent health studies show that PM2.5 has greater association with adverse health effects and would pose a greater health risk to the public.

4.7 The current concentration levels of air pollutants in Hong Kong

are much higher than the WHO AQGs, partly due to local emissions

and partly due to regional air pollution. The regional impact

on the air quality in Hong Kong could best be illustrated by Table

4.1 below showing the compliance status at Tap Mun air quality

monitoring station, which is far away from local air pollution


Table 4.1 : Compliance Status of Tap Mun Air Quality Monitoring Station with WHO

AQGs from 2006 to 2008

Pollutant Averaging



2006 2007 2008 2006 2007 2008

4.8 The monitoring data show that even for such remote area as Tap Mun, which does not have any local emission sources, the WHO

AQGs were breached to various extents for up to half of the time in a year. It underscores the transboundary nature of the air pollution

problem facing Hong Kong. It is therefore proposed to adopt a staged approach in updating the AQOs to take account

of the local situations and prevailing international practices. The WHO AQGs will be taken as a long-term goal, the pursuit of which will be considered with reference to international practices, the latest technological developments and local circumstances.

(2) Early Retirement of Aged / Heavy Polluting Vehicles (Pre-Euro, Euro I and Euro II Commercial Diesel

Vehicles and Franchised Buses)

6.8 Euro V vehicles emit only about 30% of NOx comparing to Euro II models. Early retirement of aged vehicles (including pre-Euro,

Euro I and Euro II commercial diesel vehicles and franchised buses) and replace them with models meeting the latest Euro standards

(i.e. Euro V standards which will be in force in the EU by phases starting this year) will help reduce significantly vehicular

emissions. It is estimated that about 3,102, 300 and 184 tonnes of NOx, RSP (or PM10) and VOC emissions could be reduced respectively

following implementation of this initiative. Due to the close proximity of vehicular emissions to receptors, the consultant’s assessment shows that this initiative would generate significant health benefits.

(3) Earlier Replacement of Euro III Commercial Diesel Vehicles with Models Meeting Latest Euro Standards

6.10 Compared to Euro III models, Euro V vehicles emit only about 36% (for light duty diesel vehicles) to 40% (for heavy duty diesel

vehicles) of NOx. Assuming that 50% of the Euro III commercial diesel vehicles are replaced with new models meeting Euro

V standards, it would cut the emissions of NOx, RSP (or PM10) and VOCs by about 743, 75 and 24 tonnes respectively. This

proposed measure would generate major health benefits due to the close proximity of vehicular emissions to receptors. However,

the Euro III vehicles currently in use are relatively new (eight years old at most).Depending on the types of vehicle, their vehicle owners are likely to be more reluctant to replace them early with new ones.

Transport Management

(10) Low Emission Zones

6.17 This proposed measure seeks to ban commercial vehicles of Euro III or below standards from entering busy areas such as Central,

Mong Kok and Causeway Bay. It could help reduce the exposure of air pollutants at street levels within the low emission zones

(LEZs), although net emission reduction in the whole territory is not expected as traffic might be diverted to other areas. The assessment

conducted by the consultant shows that LEZs could bring about considerable health benefits to the population within

the zones. The cost-effectiveness of the scheme would be highly dependent upon how the proposed LEZs are to be designed and

implemented, and whether the affected vehicle owners would agree to upgrade or replace their vehicles to meet the emission standards required for entering the LEZs, including those who operate businesses or live within the zones. The potential diversion of the more polluting vehicles to other areas will need to be considered carefully in designing LEZs.

Infrastructure Development and Planning

(13) Expand Rail Network

6.20 Railway-based transportation generates substantially less air pollution than vehicles, even after taking into account emissions from

power plants which produce the necessary electricity to power the trains. Following development of the committed rail projects

including the Express Rail Line, the Sha Tin to Central Link (the Tai Wai to Hung Hom section), the West Island Line, the South Island

Line (East), the Kowloon Southern Link and the Kwun Tong Line Extension, it is estimated that the transport sector’s emissions of

SO2, NOx, RSP (or PM10) and VOCs could be reduced by about 17, 501, 46 and 207 tonnes respectively, bringing about considerable

health benefits to the community. Whilst the costs for developing the rail network are principally incurred and justified on

transport grounds, the health benefits so generated would lend additional support to the case for expanding the rail network.

(CTA Comment : but only a road , not rail link to Zhuhai / Macau on the proposed bridge is considered ! The report fails to address the 2nd highest sulphur emitter Ocean Going vessels burning 3% sulphur bunker fuel)

The Extreme dangers of ultrafine and PM2.5 particulates in Hong Kong’s air.

Hong Kong EPD does not publish PM2.5 nor ultrafine data, unlike other first world countries !

PM0.1  Ultrafines

Respirable Ultrafine particles are the size of a virus and enter the body into the lungs unhindered by nose hairs. They can carry heavy metals and hang suspended in the air.

They can cling to VOCs in the air forming a lethal brown ‘haze’


Respirable Particulate matter are the size of larger bacteria and the smallest red blood cells.  They enter the body into the lungs unhindered by nose hairs. They can carry heavy metals and hang suspended in the air They can cling to VOCs in the air forming a lethal brown ‘haze’

DOWNLOAD PDF : Science – FineParticles

Small Particulates – the worst form of air pollution


Based on reviews of the latest scientific literature, the Air Resources Board staff has concluded

that particulate matter smaller than 2.5 microns (PM2.5) is much more toxic than previously

estimated. New research suggests that even small increases in exposure increase the

potential for earlier deaths.

Talk about heart-stopping news: Spending time in traffic may triple some people’s risk of having a heart attack an hour later. That’s

what German researchers reported last October in the New England Journal of Medicine (NEJM), based on responses from

691 heart attack survivors about their activities in the days before they fell ill. The study seemed to support the notion that tiny

air pollution particles from tailpipes, along with stress, could help trigger a heart attack.

The key issue of PM2.5 particulates has not been addressed. It is now

beyond question that increasing levels of these particulates are associated

with increased mortality and also increased deaths from cardiovascular

diseases. The data derived from the WHO Air Quality Guidelines, as indicated

in the report, suggests that there would be 27,500 years of life lost every 15

years around incinerators for each 1μg/m3 rise in PM2.5 particulates.$FILE/TribalFactSheetforPM2.5.pdf

Ambient Air Quality Standards (AAQS) for Particulate Matter

What is particulate matter (PM)? Revision of the PM Standards
Why is the ARB is concerned about PM? What are the major harmful health effects
associated with PM exposure?
What are the ambient air quality standards forPM?

Particulate matter (PM) is a complex mixture consisting of varying combinations of dry solid fragments, solid cores with liquid coatings and small droplets of liquid. These tiny particles vary greatly in shape, size and chemical composition, and can be made up of many different materials such as metals, soot, soil and dust. PM may also contain sulfate particles. California has a separate ambient air quality standard for sulfates.
PM may be divided into many size fractions, measured in microns (a micron is one-millionth of a meter). ARB regulates two size classes of particles – particles up to 10 microns (PM10) and particles up to 2.5 microns in size (PM2.5). PM2.5 particles are a subset of PM10.
PM10 and PM2.5 are each measured and expressed as the amount (in micrograms) of particles
contained in a cubic meter of air, expressed as micrograms per cubic meter (µg/m
What are the Sources of
Airborne Particulate Matter?

Burning fuels, such as gasoline, oil, diesel or
wood, produce most of the PM2.5 pollution found
in outdoor air, and much of the PM10. Wind-blown
dust also contributes to PM10 pollution.

Why is the ARB concerned about particulate matter?
The ARB is concerned about Californians’ exposures to PM2.5- and PM10-sized particles because of the potential harmful health effects that can result.
PM 2.5 and PM10 particles easily penetrate into the airways and lungs where they may produce harmful health effects such as the worsening of heart and lung diseases. The risk of these health effects is greatest in the elderly and the very young. Exposure to elevated concentrations of PM is also associated with increased hospital and doctor visits and increased numbers of premature deaths.
What are the PM Standards?
The State of California has established ambient air quality standards for PM. These standards define the maximum amount of particles that can be present in outdoor air without threatening the public’s health. In June of 2002, the California ARB adopted new, revised PM standards for outdoor air, lowering the annual PM10 standard from 30 µg/m3 to 20 µg/m3 and establishing a new annual standard for PM2.5 of 12 µg/m3.
California’s ambient air quality standards for PM are designed to protect the most sensitive groups of people, including infants and children, the elderly and persons with heart or lung disease.

For more information, see the Ambient Air Quality Standards chart at

State and Federal Ambient Air Quality Standards for Particulate Matter
California ARB Standard PM10 Federal EPA Standard PM10
Annual Average 20 µg/m3 N/A
24-Hour Average 50 µg/m3 150 µg/m3
California ARB Standard PM2.5 Federal EPA Standard PM2.5
Annual Average 12 µg/m3 15.0 µg/m3
24-Hour Average ——– 35 µg/m3
California’s PM standards are more protective of human health than the corresponding set by EPA. See the EPA site for the new federal PM10 and PM2.5 ambient air quality standards at
Revision of the PM Standards
The ARB adopted new PM standards in June of 2002, responding to requirements of the Children’s Environmental Health Protection Act (Senate Bill 25, Escutia 1999). This Act requires the evaluation of all health-based ambient air quality standards to determine if the standards adequately protect human health, particularly that of infants and children. The subsequent review of the PM standards resulted in the recommendation of more health-protective ambient air quality standards for PM10 and a new standard for PM2.5. More details of this review are available in the staff report, “Public Hearing to Consider Amendments to the Ambient Air Quality Standards for Particulate Matter and Sulfates.” The new PM standards became effective in 2003.

Information about how the ARB sets ambient air quality standards can be found at

What kinds of harmful effects can PM cause?
Concentrations of PM above the current standards may result in harmful health effects. Since the small particles that make up PM can easily penetrate deep into the lungs, scientists have studied the effects of this type of pollution on human health. Both short- and long-term exposures to PM have been shown to lead to harmful health effects. A large body of evidence has shown significant associations between measured levels of PM outdoors and daily increases in the numbers of human deaths. In addition, scientists have observed higher rates of hospitalizations, emergency room visits and doctor’s visits for respiratory illnesses or heart disease during times of high PM concentrations. During these periods of high PM levels, scientists also observed the worsening of both asthma symptoms and acute and chronic bronchitis. Scientists have found a relationship between high PM levels and reductions in various aspects of the healthy functioning of people’s lungs.
Which groups are most susceptible to health effects from PM?

  • ·        The Elderly
  • ·        People with Heart and / or Lung Disease
  • ·        Children and Infants
The elderly and people with heart and/or lung diseases are particularly at risk to the harmful effects from PM exposure. A data analysis from ARB’s Children’s Health Study shows health effects in children, as well. This study showed that in communities highly polluted with PM, children’s lungs developed more slowly and did not move air as efficiently as children’s lungs in clean air communities. Children and infants are susceptible to harm from inhaling pollutants such as PM because they inhale more air per pound of body weight than do adults – they breathe faster, spend more time outdoors and have smaller body sizes. In addition, children’s immature immune systems may cause them to be more susceptible to PM than healthy adults. Further research may clarify the relationship between PM exposure and children’s health.
PM levels in most areas of California exceed current state PM standards from a few to many times each year. ARB is working diligently to reduce levels of PM and other kinds of air pollution in California’s outdoor air. You can also help in the fight against air pollution – click here for further information

For more information on Ambient Air Quality Standards please contact
Dr. Linda Smith at (916) 327-8225 or email at