How Far Will The Long Arm Reach? – Deconstructing Singapore’s Transboundary Haze Pollution Act

This article is contributed by Maxine Chen.

Introduced in 2013, the Transboundary Haze Pollution Act is now beginning to be utilised by the NEA to serve preventive notice measures on a number of Indonesian companies. This piece of law is a daring departure from the consultative methods traditionally adopted by ASEAN member states in dealing with the Southeast Asian air pollution crisis.[1]

It is clear that in the face of market forces and politics, Singapore has a relatively small role to play. Moreover, looking at the cautious manner with which the Act has been described and implemented so far, it probably will not live up to its potential reach. But by understanding this law, testing its limits and finding creative ways to supplement it, individuals and businesses may be helping ensure that Singapore plays her role well.

A daring Act

Soon after Singapore’s PSI hit an unprecedented 246 in June 2013, causing planes to reroute from Singapore Changi Airport, Singapore’s Executive “openly broke ranks with the ‘ASEAN Way’”[2], and introduce the Transboundary Haze Pollution Act in a swift and unexpected move.

The Act aims to create a framework of accountability[3] and so to create a “deeper reach to the real perpetrators behind any land and forest fire overseas that leads to haze pollution in Singapore” and “mitigate the adverse impact any prolonged haze might bring.”[4]

A look at the provisions

The Act targets any company in the position of A, B or C in the diagram below. Since the Act has extra-territorial application[5], companies operating outside Singapore – particularly Indonesian companies – are significant targets.

The National Environment Agency may prosecute such companies.[6] Moreover, any person in Singapore who suffers personal injury, any physical damage to property in Singapore or sustains any economic loss – including a loss of profits – in Singapore can attempt to bring a suit against such companies.[7] Understandably, since the Act is in a fledging state, no prosecutions or civil suits have been brought so far.

Once there is a possibility of haze in Singapore, the Director‑General of Environmental Protection appointed under the Environmental Protection and Management Act – or the NEA, in practical effect – may serve a preventive measures notice to the suspected company to deploy fire fighting personnel to prevent spread of fire, discontinue certain burning activities or submit any plan of action to extinguish or prevent the spread of fire etc.[8]

NEA recently served Preventative Measure Notices to four Indonesian companies that hold land concessions on which haze-causing fires might have started, and Singapore-based Asia Pulp and Paper Company, Indonesia’s largest pulp and paper firm.[9]

An additional fine of up to $50,000 may be imposed on entities failing to comply with the preventive measures notice.[10]

If the corporation is convicted, a fine of up to SGD 100,000 will be imposed on the corporation for every day there is haze pollution in Singapore arising from its conduct, with an aggregate of SGD 2 million. The fine’s per-day formula is meant to incentivise entities to put out fires early.[11] A number of Members of Parliament have questioned whether this sum amounts to a mere slap on the wrist.[12]

The Act provides a rebuttable presumption that the haze involves smoke from a particular land or forest fire arises when there is “reasonably probative circumstantial evidence”[13] that there is haze, there is a land or forest fire happening outside Singapore, and smoke from that fire is moving towards Singapore.[14] This renders it easier for NEA to build a case against a haze-causing company.

The Act also gives NEA extensive investigative powers, including entering any building in Singapore and seizing documents.[15]

A look into the future

The Act serves as a functional prosecutorial toolkit for NEA, but whether there are practical measures for “on-the-ground intelligence gathering” which will require “resources and cooperation with actors in the haze-fuelling hotspots” remains a significant question.[16]

In any case, citizens and businesses can support efforts to push the Act to its limits.

The Haze Elimination Action Team (HEAT), an 800-strong group led by Dr Ang Peng Hwa, a professor at Nanyang Technological University’s Wee Kim Wee School of Communication and Information, has been trying to do so by gathering resources to launch a civil suit against haze-causing companies.[17]

References

[1] Ebinezer R. Florano, Current Development Assessment of the “Strengths” of the New ASEAN Agreement on Transboundary Haze Pollution, (2003) IRES 127 at p 133.

[2] William J. Jones, Human Security & ASEAN Transboundary Haze: An Idea That Never Came, (2014) 5 JAPSS 603 at p 609.

[3] John Jackson Ewing, “Cutting Through the Haze: Will Singapore’s New Legislation Be Effective?”, 2012 RSIS Commentary No. 166, http://www.rsis.edu.sg/wp-content/uploads/2014/08/CO14166.pdf, accessed 7 November 2014.

[4] Singapore Parliamentary Debates, Official Report (4 August 2014), Transboundary Haze Pollution Bill, Order for Second Reading , http://sprs.parl.gov.sg/search/report.jsp?currentPubID=00006417-WA (accessed 7 November 2014) (Dr Vivian Balakrishnan, Minister for Environment and Water Resources).

[5] Transboundary Haze Pollution Act (No. 24 of 2014) , s 4.

[6] Transboundary Haze Pollution Act (No. 24 of 2014), s 5.

[7] Transboundary Haze Pollution Act (No. 24 of 2014), s 6.

[8] Transboundary Haze Pollution Act (No. 24 of 2014), s 9.

[9] XabrynaKek. 25th September 2015. “NEA sends notice to 4 Indonesian firms with suspected links to fires.” Channel News Asia. http://www.channelnewsasia.com/news/singapore/nea-sends-notice-to-4/2149996.html

[10] Transboundary Haze Pollution Act (No. 24 of 2014).

[11] Transboundary Haze Pollution Act (No. 24 of 2014), ss 5(4) and 5(5).

[12] Singapore Parliamentary Debates, Official Report (5 August 2014), Transboundary Haze Pollution Bill, Order for Second Reading, http://sprs.parl.gov.sg/search/report.jsp?currentPubID=00006417-WA (accessed 7 November 2014) (Dr Vivian Balakrishnan, Minister for Environment and Water Resources).

[13] Singapore Parliamentary Debates, Official Report (4 August 2014), Transboundary Haze Pollution Bill, Order for Second Reading, http://sprs.parl.gov.sg/search/report.jsp?currentPubID=00006417-WA (accessed 7 November 2014) (Dr Vivian Balakrishnan, Minister for Environment and Water Resources).

[14] Transboundary Haze Pollution Act (No. 24 of 2014), s 8.

[15] Transboundary Haze Pollution Act (No. 24 of 2014), s 10.

[16] John Jackson Ewing, “Cutting Through the Haze: Will Singapore’s New Legislation Be Effective?”, 2012 RSIS Commentary No. 166, http://www.rsis.edu.sg/wp-content/uploads/2014/08/CO14166.pdf, accessed 7 November 2014.

[17] 25th September 2015.“We are coming after you: Haze group to companies burning land.” Channel News Asia. http://www.channelnewsasia.com/news/singapore/we-are-coming-after-you/2149884.html; see also the HEAT Facebook Group at https://www.facebook.com/groups/281939768572446/permalink/701159376650481/