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Who is fighting for better air?

The Government has decided to fight the court ruling that the air quality assessment of the Hong Kong – Zhuhai - Macau Bridge was substandard. This decision to appeal will delay construction of the bridge. Why does the Government not accept the ruling and improve Hong Kong’s air quality?

We don’t have an answer for this madness, but to understand better why this case is one of life and death for all in Hong Kong, read below a letter from David Renton, a partner at Baker Botts law firm and a member of the legal team that advised the 65-year-old Tung Chung resident Chu Yee-wah who successfully appealed against Hong Kong’s "
Environmental Protection" Department.


Who is holding up infrastructure projects?

The recent court ruling quashing the approval (by the Environmental Protection Department) of the environmental impact assessment of two Hong Kong sections of the Hong Kong-Zhuhai-Macau bridge will not just delay the start of construction of this project. It may also hold up the environmental approvals for the Environmental Protection Department's planned waste incinerator at Shek Kwu Chau.

The air quality impact assessments of the delta bridge project and the incinerator cover overlapping areas of North Lantau close to the airport and Tung Chung. One of the objectives of the assessments is to forecast the cumulative impact of these projects on air quality in the area. Since the approval for the delta bridge project has now been quashed, we need new environmental assessments to tell us how much pollution the delta bridge project will contribute.

Same air, different studies, different assumptions

Let us hope that some of the dubious assumptions underpinning the bridge study will be corrected. For example, the previous study assumed that emissions from road traffic in North Lantau will double from 2016 to 2031. Yet, the incinerator study assumes that such emissions will fall by half over virtually the same 15-year period.

Both studies assume there will be no expansion of capacity at Hong Kong International Airport - a major source of nitric oxide and nitrogen dioxide emissions - after it reaches its current operating capacity in 2020. This implies there will be no third runway at Chek Lap Kok, a questionable assumption.

When it comes to preparing environmental reports, there seems to be little disincentive for making up assumptions. The law makes those who offer shares to the public liable for damages if the prospectus contains false or misleading statements. But such liability does not apply in environmental studies; people whose health may have suffered as a result of a study's wrong assumptions will have great difficulty suing those responsible for issuing the report.

You missed the consultation? You are too late.

The time to challenge questionable assumptions in these reports is during the statutory consultation period, so the project proponent can either substantiate them or correct them before the reports are approved.

Many important assumptions that underpin air quality assessments are buried in the input files for the computer models used to carry out studies. In the delta bridge case, the applicant Chu Yee-wah said there was not enough information about the assumptions fed into the computer model that simulated the dispersion of air pollutants across the region. The judge decided that these concerns should have been raised during the public consultation and it was too late to raise them in a judicial review.

The applicant also questioned whether the model was even capable of making reliable forecasts of future air quality, given that the projected regional emission sources may not be accurate. The judge said that issue also had been raised too late.

There is only one bucket of air

Legal challenges to environmental assessment reports, which up until now have been rare, are becoming more likely. The Environmental Protection Department has allowed air quality to deteriorate so far that almost any major new infrastructure project will cause further breaches of Hong Kong's air quality objectives. Ozone and nitrogen dioxide concentrations are already well over the legal limits and are getting worse.

Hong Kong's air quality bucket is already full to overflowing and the government urgently needs to take action to remove as much avoidable pollution from the bucket as it can to make room for new projects. No one is buying the argument there is still room in the bucket for another project, and there is growing public pressure on the government to reduce the size of the bucket by tightening the air quality standards.

New projects? Fix the air quality first

The solution is clear. The government should start implementing some of the measures to improve air quality that it proposed in the environmental department's 2009 consultation paper on air quality benchmarks.

There has been much speculation about the motives of those who helped Chu Yee-wah with her case against the department. As one of those people, I am happy to confirm that this case was all about protecting the environment.

May I ask instead, who are the individuals preventing the department from implementing the measures it proposed in 2009 to improve air quality?

It seems that they are the ones holding up the government's infrastructure projects.

David Renton

(This letter was first published in the South China Morning Post on 5 May 2011. The headings were added by Designing Hong Kong.)
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