Gap Assessment of the Legislative and Institutional Framework in Costa Rica

3.5.2Gap Analysis of the World Bank Safeguard Policies

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  Upgrading the screening and scoping processes;
  
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  Developing requirements to consider alternative sites during the site selection process;
  
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  Implementing mitigation measures such as tower sharing;
  
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  Applying more stringent requirements for EMPs, Sworn Statements, or other instruments for environmental management;
  
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  Requiring environmental monitoring of projects, where appropriate; and
  
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  Improving public consultation and communication about projects by involving stakeholders in management of natural habitats at project locations.
  

Issue	Costa Rican Legislation	WB Safeguard Requirements
Legislation and Procedures
National EIA requirements for proposed infrastructure activities	Requirements met.	Under the OP 4.01, a full EIA is required for all projects screened as Category A. For Category B projects, some form of environmental assessment is required, usually less rigorous than a full EIA, and often in the form of an Environmental Management Plan (EMP).
Provision of environmental permit for projects prior to appraisal by Environmental authority	Requirements met.	OP 4.01 requires the approval and disclosure of EIAs by the relevant government authority.
Local government EIA legislation or procedures	Requirements met.	Environmental Assessment (EA) takes into account the country’s overall policy framework, national legislation, institutional capabilities, and obligations under relevant international environmental treaties and agreements. The World Bank (WB) does not finance project activities that would contravene such country obligations, as identified during EA. (OP 4.01, para. 3).
Sectoral authority EIA legislation or procedures	Requirements met.	The 1991 EA Sourcebook (3 vols.) contains sectoral guidelines for telecommunications.
General and specific guidelines	Requirements partially met. The country has its own guidelines that in some cases are the same used by the World Bank; for instance, OP/BP 4.12 Involuntary Resettlement 2001 is applicable. In other cases, Costa Rica has developed its own local guidelines that differ from those of the WB.	-The 1991 EA Sourcebook (3 vols.) and EA Sourcebook Updates (Nos. 1-26). - The 1999 Pollution Prevention and Abatement Handbook (OP 4.01, para. 6). - IFC EHS Guidelines for Telecommunications. April 30, 2007. - OP/BP 4.12 Involuntary Resettlement 2001.
Screening Process
Categories	Requirements met.	Categories A, B., C, and F1) OP 4.01, para. 8).
Screening method	Requirements partially met. Costa Rica’s screening method follows the WB’s structure but does not have the same depth, level of detail, and classifications as that of the WB.	WB screens and classifies projects depending on their type, location, sensitivity, and scale and the nature and magnitude of potential impacts (OP 4.01, para. 8), using illustrative screening lists (GP 4.01, Annex B).
Scoping method	Requirements partially met. ToRs are not prepared and discussed with stakeholders.	EA takes into account the nature, scale, and potential impacts on the natural environment, human health and safety, social, and trans-boundary and global environmental aspects of activities. Natural and social aspects are considered in an integrated manner. The WB discusses the scope of the EA with the borrower, including during a field visit by an environmental specialist, and helps to draft terms of reference for the EA, ensuring public participation and interagency coordination. -Regional Environment Sector Unit (RESU) reviews terms of reference (BP 4.01, paras. 6-7).
Content of Reports
Content of EIA report	Requirements partially met. When an EIA is required, it complies with WB standards. If SETENA establishes another category such as a Sworn Statement of Environmental Commitments, it will not include all the components of the EIA.	Provided in OP 4.01, Annex B, given to the borrower under WB’s explanatory cover letter. Includes: -Executive summary -Policy, legal and administrative framework -Project description -Baseline data -Prediction and assessment of environmental impacts and mitigation -Analysis of alternatives -Environmental management plan -List of EIA report preparers -Record of consultations -References and supporting data For the format of the EA report, see GP 4.01, paras. 5-7.
Requirement for considering alternatives	Requirements partially met. A Rapid Environmental Valorization tool is applied during the site selection phase that considers alternatives; however, it is not a legal requirement.	This is a policy requirement, since an EA evaluates a project’s potential environmental risks and impacts in its area of influence, examines project alternatives, etc. (OP 4.01, para. 2).
Requirement for EMPs	Requirements not met. The requirements for EMPs as detailed by WB are applied only to complex cases.	Specifically required in OP 4.01 (para. 7) and explained in Annex C. OP 4.01 strengthens and clarifies the role of the EMP by specifically listing EMP as a component of the Category A project EA report and citing EMP provisions related to the implementation of the EA.
Review, public participation, decision-making and monitoring
Method for review of content and substance of EA reports	Requirements met.	-Comparison with terms of reference (BP). -Consistency with terms of reference as specified in the guide for preparation and review of EA reports. -Field visit by and environmental specialist.
Requirement for public participation	Requirements met.	-For category A and B projects, the borrower consults project-affected groups and local Non-Governmental Organizations (NGOs). -For category A projects, consultation occurs twice: (1) shortly after screening and before EA terms of reference are finalized (scoping); and (2) once a draft EA report is prepared.
Decision-making authority	Requirements met.	-RESU reviews the EA and clears departure of WB appraisal mission or requires additional work. -Integrated with appraisal of project design and economic analysis (BP).
Provisions for appeal	Requirements met.	See BP 17.55: Inspection Panel.
Monitoring, enforcement, and compliance	Requirements met.	WB monitors compliance with the provisions of a loan agreement.
Requirements for followup and monitoring	Requirements partially met. SETENTA counts environmental (and Safety) supervisors but SETENA has limited capacity building to oversee all projects in the country.	Reports submitted to WB by borrower; supervision visits by WB (BP 4.01, para. 20).
OHS standards
National guidelines and standards for OHS	Requirements met.	The guidelines for OHS provided under the IFC Occupational, Health and Safety Guidelines should be applied for all infrastructure projects.

Issue	Costa Rican Legislation	WB Safeguard Requirements
Legislation and Policies
Precautionary approach	Requirements met.	Apply a precautionary approach to natural resources management to ensure opportunities for environmentally sustainable development. (OP 4.04, para.1).
Protection and conservation of natural habitats	Requirements met.	(a) Natural habitat and special needs for natural habitat conservation, including the degree of threat to identified natural habitats (particularly critical natural habitats); and (b) Measures to protect such areas in the context of the country’s development strategy (OP 4.04, para. 2).
Project Design and Implementation
Project approval	Requirements met.	WB does not support projects that, in the Bank’s opinion, involve the significant conversion or degradation of critical natural habitats (OP 4.04, para.4).
Site selection and avoidance of natural habitat conversion or degradation	Requirements met.	Projects are sited on lands already converted. The WB does not support projects involving the significant conversion of natural habitats unless there are no feasible alternatives for the project and its siting, and comprehensive analysis demonstrates that overall benefits from the project substantially outweigh the environmental costs. If the environmental assessment indicates that a project would significantly convert or degrade natural habitats, the project includes mitigation measures acceptable to WB. Such mitigation measures include, as appropriate, minimizing habitat loss (e.g., strategic habitat retention and post-development restoration) and establishing and maintaining an ecologically similar protected area. WB accepts other forms of mitigation measures only when technically justified (OP 4.04, para. 5).
Policy dialogue and public participation
Stakeholder involvement in management of natural habitats of a project emplacement.	Requirements partially met. Public hearings are a possibility only in controversial projects. There are other methods such as interviews, polls, and work with community leaders.	The WB expects the borrower to take into account the views, roles, and rights of groups, including local nongovernmental organizations and local communities, involving natural habitats, and to involve such people in planning, designing, implementing, monitoring, and evaluating such projects. Involvement may include identifying appropriate conservation measures; managing protected areas and other natural habitats; and monitoring and evaluating specific projects. The WB encourages governments to provide such people with appropriate information and incentives to protect natural habitats (OP 4.04, para. 10).

Issue	Costa Rican Legislation	WB Safeguard Requirements
Environmental Assessment regarding Physical Cultural Resources
Screening	Requirements met.	Category A or B projects are subject to the provisions of this policy: (a) any project involving significant excavations, demolition, movement of earth, flooding, or other environmental changes; and (b) any project located in, or in the vicinity of, a physical cultural resources site recognized by the borrower (OP 4.11, para. 5).
Impact Assessment	Requirements met.	Identify physical cultural resources likely to be affected by the project and assess the project’s potential impacts on these resources as an integral part of the EA process (OP 4.11, para. 7).
Mitigation measures	Requirements met.	May range from full site protection to selective mitigation, including salvage and documentation, in cases where a portion or all of the physical cultural resources may be lost (OP 4.11, para. 8).
Management Plan	Requirements met.	Includes measures for avoiding or mitigating any adverse impacts on physical cultural resources; provisions for managing chance finds; any necessary measures for strengthening institutional capacity; and a monitoring system to track the progress of these activities. The physical cultural resources management plan is consistent with the country’s overall policy framework and national legislation and takes into account institutional capabilities with regard to physical cultural resources (OP 4.11, para. 9).
Consultation and Disclosure
Stakeholder involvement	Requirements partially met. A copy of the project is sent to the local government or municipality for high-impact projects. All documents submitted to SETENA are also considered public.	Includes relevant project-affected groups, concerned government authorities, and relevant nongovernmental organizations in documenting the presence and significance of physical cultural resources, assessing potential impacts, and exploring avoidance and mitigation options (OP 4.11, para. 11).
Information disclosure	Requirements met.	Findings are disclosed as part of the EA report. In such cases, sensitive information relating to these particular aspects (i.e., that may compromise or jeopardize the safety or integrity of the physical cultural resources involved or would endanger the source of information about the physical cultural resources) may be omitted from the EA report (OP 4.11, para. 12).