PROPOSED HOLISTIC MODEL: OVERVIEW

A holistic regulatory model that better integrates the upstream and downstream consideration of infrastructure needs and risks will address key weaknesses in the current approaches to linear infrastructure development in ASEAN. Guidance issued by ASEAN itself on the standards expected for key issues involved in major economic development activities in the region (such as public participation and transboundary planning and impact assessment) would further the development and implementation of the model. The proposed holistic regulatory model also anticipates that project proponents and financial institutions will continue to strengthen ESG approaches and incorporate many of the regulatory tools recommended below into corporate environmental management systems.

The proposed model builds upon the Visioning Futures paper recommendation to:101

Expand and develop national regulatory frameworks enshrining holistic consideration of natural capital, ecosystem services, and climate risks in national policies, laws, and regulations governing spatial or strategic planning processes, including procurement requirements, whether driven by large-scale infrastructure investments or otherwise.

101 Bartlett (2019), p. 53.

The core elements of the proposed holistic regulatory model (depicted in Figure 10) are:

1. Strategic landscape planning that incorporates a. long-term socio-economic development objectives (including the SDGs) that drive linear infrastructure needs; b. medium and long-term climate projections, including multi-hazard risk assessments and vulnerability analyses, to support understandings of resilience in the landscape; c. NDCs and other climate change strategies applicable in the landscape d. clearly identified ecosystems and the services they provide, with links to applicable biodiversity strategies; e. guidance on the relative suitability of locations and corridors for linear infrastructure development (including clear “no build” designations).

2. Pre-screening (with clear guidance) of potential linear infrastructure projects to consider their appropriateness in the context of the landscape plan, as well as specific environmental and social risks.

3. The integration of ESG and other financial risk tools, including due diligence and risk assessment, to cost potential linear infrastructure projects more effectively.

4. Linking EIAs to the landscape plan to ensure adequate consideration of potential cumulative impacts.

5. Establishing standard conditions for any approved EIAs to strengthen resilience and inclusivity outcomes.

6. Clear requirements for public participation, access to information, and access to grievance mechanisms and remedies throughout the process.

7. An interface with other relevant regulations, including national planning arrangements, protected areas and natural resource management laws.

Strategic Landscape Plans For Linear

Incorporating NDCs, protected areas, vulnerability and multi-hazard risk assessments, socio-economic development plans, NRM plans

Identifying areas and corridors as:

- Suitable

- Unsuitable

- Requiring case-by-case assessment

KEY PRINCIPLES APPLYING CONSISTENTLY ACROSS PHASES

• Precautionary principle

• Access to information

• Public participation

• Long-term climate resilience

• Nature positive development

• Inclusivity

• Rights of Indigenous Peoples

• EPIC

• Gender mainstreaming

As depicted in Figure 10, the proposed regulatory model requires that each linear infrastructure project be developed in response to strategic planning undertaken at the landscape level. This approach sees strategic decisions made at the landscape level flow through all phases of individual linear infrastructure projects and ensures that projects are considered in relation to each other rather than in isolation.

The approach follows a logical stepped process, screening out projects that should not be pursued on various grounds prior to the EIA stage. The holistic model is consistent with due diligence and risk assessments as outlined in the OECD Guidelines 2011 and with the approach adopted by PRC to “Greening the BRI.” Figure 11 illustrates how the proposed model narrows the risks of linear infrastructure development through systematic considerations.

There are multiple advantages of to using regulatory measures to establish the proposed holistic model:

• A regulatory approach ensures that the holistic model has a legal basis for requiring coordination between the upstream and downstream phases and provides clarity for all stakeholders. This includes ensuring strategic considerations around climate risks, ecosystem services, and local community needs are formally integrated into linear infrastructure system planning and followed through into individual project selection and design. It also includes establishing principles that would apply consistently across all phases of the linear infrastructure project lifecycle.

• The requirement for strategic planning at the landscape level provides clarity for communities, developers, and financial institutions about where particular types of linear infrastructure can be developed in the future. In combination with requirements for pre-screening risks, this streamlines project identification and selection stages, thereby reducing costs and risk for project proponents and financial institutions. This approach to planning and pre-screening also facilitates creating a project bank where proponents can view projects that governments and communities have identified as priorities.

• A structured regulatory approach enables coordination of linear infrastructure planning and development with existing regulatory measures such as protected area management. Currently, overlapping measures are not clearly identified or documented and can be cumbersome for all stakeholders to navigate.

• Public participation is enhanced across the various stages of the project lifecycle, leading to more inclusive approaches and outcomes. In conjunction with the clarity a regulatory model establishes for monitoring and enforcement of various obligations, the model also provides a clear basis for structuring grievance mechanisms and providing avenues to access to justice.

Figure 11: Narrowing of risks through systematic consideration

Early and systematic consideration of risks and impacts

Continuous refinement of key issues and risks

Scope out issues and potential impacts through avoidance

Increasing attention on risk management

Reduced financial and reputational risk

Better outcomes

Pre-feasibility screening round 1

Pre-feasibility screening round 2

A holistic regulatory model does not demand entirely new laws or identical laws across ASEAN. Rather, the model simply brings together and builds on a jurisdiction’s existing laws and regulations to guide the application of these regulations to linear infrastructure projects. . For example, existing national laws on planning can be strengthened with guidelines that require mapping of corridors or eco-sensitive zones, to help delineate areas as appropriate and inappropriate for infrastructure development. There would be significant advantages to consistent approaches between ASEAN member states, including:

• Sending clear and consistent messages to investors;

• Supporting due diligence and risk assessment in planning and investment decisions;

• Facilitating transboundary projects and linking projects across national borders;

• Enabling experience sharing and collaborative development of implementation tools and mechanisms.

Adopting the proposed approach does not to elevate the requirements applying to linear infrastructure over other major development projects through a dedicated set of arrangements; many of the issues relevant to developing resilient and inclusive linear infrastructure are pertinent to other types of infrastructure, while the underlying principles and ideas of strategic landscape-level planning for major projects can be broadly adopted. In this context, the proposed regulatory model and tools could be readily expanded to apply to other sectors.

Annex 3 summarizes recommendations for to establishing this holistic model with the main components discussed in further detail in the following sections. These more detailed sections also include practical recommendations and tools that can be employed by both policymakers and advocates to prepare for implementation of a holistic model. The discussion also addresses the potential role of ASEAN in supporting regional consistency in approaches.

Key Principles

Important principles of sustainable development underpin the proposed holistic model, many of which arose from the Rio Declaration on Environment and Development 1992 and have become core principles of environmental law around the world. These principles are included in national laws and intergovernmental agreements on environment and development.

The principles that are considered critical to the development of resilient and inclusive linear infrastructure in ASEAN, and which should be explicitly incorporated into the proposed regulatory framework, are:

• Meaningful public participation, including access to information

• Rights of Indigenous Peoples and principles of FPIC

• Inclusivity and a gender lens

• The precautionary principle

• Inter-generational equity, including long-term climate resilience

• Nature positive development