CRITICAL CIVIL-SOCIETY REVIEW OF ADB’S DRAFT ESS1 GUIDANCE NOTE

The inputs are grounded in the NGO Forum on ADB’s long-standing position: that any dilution, discretion, or delay in safeguards disproportionately exposes affected communities and ecosystems to foreseeable harm. Below we highlight concrete passages that, as drafted, could enable such harms—especially through deferral, carve-outs, and “materially consistent” substitutions—followed by proposed fixes.

Overview

The draft ESS1 guidance enhances structure and terminology, but it still accepts - 

1. partial coverage of associated facilities

2. deferral of key assessments into implementation via the ESCP/ESAP

3. reliance on “common approach” or borrower systems that are only “materially consistent” with ESSs, and;

4. flexible thresholds for monitoring, disclosure, and incident reporting. These are known risk leakages in MDB operations: they shift risk downstream, weaken enforceability, and create information asymmetries for communities.

These are known risk leakages in MDB operations: they shift risk downstream, weaken enforceability, and create information asymmetries for communities.

The draft also mixes mandatory provisions and advisory text, which creates confusion. ADB should adopt stronger formatting (e.g., consistent boxed policy text or visual markers) to clearly distinguish binding ESS requirements from advisory guidance.

The guidance should close these gaps by mandating a full-lifecycle assessment before approval, ensuring complete coverage of linked facilities, establishing firm triggers for public disclosure, and implementing community-verifiable monitoring—with no “material consistency” substitutions where ESSs are stronger.

Associated facilities: coverage “to the extent of control or influence”

Summary of relevant provisions and identified risk concernsThe guidance limits the application of ESS requirements to associated facilities “to the extent that the borrower/client has control or influence.” It even allows using other financiers’ requirements in lieu of ESSs for those associated facilities (ADB, 2025, pp. 6–7). This creates a structural incentive to externalize impacts to “linked” assets and then claim limited control.

“The borrower/client will ensure that the E&S assessment and management provisions… apply to associated facilities, to the extent that the borrower/client has control or influence over the associated facilities.” (ADB, 2025, p. 6). 

“Where ADB determines that the requirements of the common approach… are likely to address the E&S risks and impacts of the associated facilities… the borrower/client may agree… to apply such requirements, instead of the ESSs.” (ADB, 2025, p. 6). 

“Where the borrower/client has limited or no control or influence… the E&S assessment will identify… risks and impacts that these associated facilities may present… to the extent possible based on availability of information” (ADB, 2025, p. 7). 

Implications and risks. Communities experience cumulative, not contractual, impacts. Narrowing coverage to “control or influence” plus “to the extent possible” assessments enables blind spots exactly where harm is foreseeable (e.g., evacuation roads, transmission lines, disposal sites). Allowing co-financier rules to replace ESSs risks a lowest-common-denominator outcome.

Recommended action. Apply full ESS coverage to all facilities “necessary for project viability” regardless of control, with borrower obligations to secure binding undertakings from third parties or, failing that, to redesign or refrain from financing.

“Deferral” of assessment into implementation via ESCP/ESAP

Summary of relevant provisions and identified risk concernsESS1 allows key components of the E&S assessment to be carried out during implementation if ADB deems the risks unlikely to change conclusions (ADB, 2025, p. 19). The GN elaborates practical conditions for deferral (ADB, 2025, p. 18).

“The ESCP/ESAP may allow certain components of the E&S assessment… to be carried out during project implementation… if [that] is not likely to change the E&S conclusions… and does not compromise the overall E&S readiness” (ADB, 2025, p. 19). 

“ADB will only allow the deferral… if the level of E&S risks and impacts… is unlikely to change… and does not compromise… readiness,” listing information and procurement considerations. (ADB, 2025, p. 18). 

Implications and risks.  In practice, “deferral” often becomes construction-led discovery: baseline gaps, alternatives analysis, biodiversity plans, or livelihood measures show up after contractors mobilize. Communities then face fait accompli choices and truncated consultation. The guidance’s tests are internal and discretionary; there’s no public test or veto by affected people.

Recommended action. Prohibit deferral for any High or Substantial risk elements; require full, disclosed assessments before approval; if any residual studies are essential, make board-level conditions precedent with community concurrence and independent expert verification.

“Less stringent than GIP/EHSGs” where justified

Summary of relevant provisions and identified risk concernsESS1 permits borrowers to propose less stringent standards than GIP/EHSGs with a justification that these “are unlikely to result in significant… harm” (ADB, 2025, p. 5).

“Where the borrower/client proposes less stringent standards… [it] will provide a detailed assessment and justification… and demonstrate… [they are] unlikely to result in significant environmental or social harm” (ADB, 2025, p. 5). 

Implications and risks. This shifts the burden from strict compliance to argumentative exceptions, often under capacity or cost pressure. Communities rarely have equal technical capacity to contest engineering rationales.

Recommended action. Reverse the presumption: if GIP/EHSGs apply, no downward deviation. If unavoidable, require independent expert review, public disclosure, and community concurrence—not just ADB satisfaction. Require gender- and age-disaggregated, intersectional monitoring indicators. Formally include community-based monitoring or CSO participation to ensure meaningful accountability. Strengthen the language to require application of the more stringent standard among national laws, international obligations, and ESS requirements in all cases..

“Common approach” & “use of borrower systems”: “materially consistent” ≠ equivalent

Summary of relevant provisions and identified risk concernsThe note enables a common approach with other financiers and the use of borrower systems, so long as outcomes are “materially consistent” with ESS objectives (ADB, 2025, pp. 8, 22).

“A common approach will be acceptable… provided that such an approach is likely to address the E&S risks… to achieve E&S outcomes through meeting the objectives materially consistent with the ESSs… [and] apply the requirements… most stringent or protective… as appropriate” (ADB, 2025, p. 8). 

“ADB may support the use of the borrower’s E&S systems… provided this is likely to… achieve E&S outcomes through meeting the objectives materially consistent with the ESSs” (ADB, 2025, p. 22). 

Implications and risks. “Materially consistent” is a subjective, outcomes-based standard that tolerates procedural gaps (e.g., weaker FPIC analogues, looser livelihood restoration, opaque disclosure timelines). Communities lose the predictability of ESS rule sets.

Recommended action. Require functional equivalence to each applicable ESS requirement—not just objectives—and publish a gap assessment matrix with binding measures in the ESCP that close gaps before approval.

Digital risks: recognition without enforceable safeguards

Summary of relevant provisions and identified risk concernsESS1 flags digital risks (privacy, cybersecurity, and data misuse) and suggests using “evolving good practices” where national law is weak (ADB, 2025, p. 16).

“Where a project involves significant use of digital technology… the E&S assessment will consider digital risks… In the absence of… applicable laws… evolving good practices will be applied…” (ADB, 2025, p. 16). 

Implications and risks. In health, social protection, and ID systems—core ADB portfolios—“evolving good practice” is not a right; communities need hard requirements for purpose limitation, data minimization, breach notification, grievance, and no discriminatory automated decisions.

Recommended action.  Bake explicit, enforceable digital safeguards into ESS1 cross-references (ESS2, ESS4, ESS10), including Data Protection Impact Assessments (DPIAs), data localization where relevant, independent cybersecurity audits, and community-level remedies for privacy harms. Expand the section with concrete examples and references to good practices on data privacy, cybersecurity, and digital equity. Consider including an annex with sector-specific case studies to illustrate practical applications and lessons learned.

Monitoring, disclosure, and incident reporting: flexible, bank-driven timelines

Summary of relevant provisions and identified risk concernsMonitoring methods and frequency are agreed upon with ADB, with semiannual/annual reporting based on risk (ADB, 2025, p. 21), and incidents are to be reported “promptly” with details (ADB, 2025, p. 22). Disclosure of E&S documents is required before appraisal (ADB, 2025, p. 22).

“ADB and a borrower/client will agree on the format, content, and frequency of monitoring and reporting…” (ADB, 2025, p. 21). 

“Monitoring reports will be submitted… at least semiannually for High/Substantial Risk, and at least annually for Moderate/Low Risk…” (ADB, 2025, p. 21). 

“The borrower/client will notify ADB promptly of any incident or accident… and will take immediate measures…” (ADB, 2025, p. 22). 

“The borrower/client will submit… all E&S assessment and management documents and the ESCP/ESAP… prior to project appraisal or final credit approval” (ADB, 2025, p. 22). 

Implications and risks. “Agree with ADB” continues to report cycles that are bank-centric; semiannual cycles can be too slow for fast-moving harms. “Promptly” lacks time-bound definitions, and while “prior to appraisal” disclosure is positive, it still requires minimum public-comment windows and local-language requirements to be meaningful.

Recommended action. Mandate monthly public monitoring during high/substantial-risk civil-works periods; define incident categories with 24/48/72-hour reporting clocks; and require 30–60 day pre-appraisal public comment windows with translated E&S documents and evidence of two-way engagement. Specify the roles of borrowers, ADB, and external monitors in adaptive management processes to clarify accountability. Require disclosure whenever ESCP/ESAP measures are adjusted, ensuring transparency and traceability of changes over the project lifecycle.

Alternatives assessment is required—but enforce the “without-project” option

Summary of relevant provisions and identified risk concerns

The guidance rightly requires an alternatives assessment, including the “without project” scenario (ADB, 2025, p. 16). In practice, this is often cursory.

“The E&S assessment will consider… the ‘without project’ scenario… and quantify risks… to the extent possible” (ADB, 2025, p. 16). 

Recommended action. Make approval contingent on a credible, quantified “without-project” and less-harm alternatives comparison, disclosed for comment; if ADB/borrower chooses a higher-risk option, require a published justification and independent review. 

Capacity and legacy risks in existing/ongoing projects

Summary of relevant provisions and identified risk concerns

ESS1 calls for audits where ADB enters midstream projects and for capacity reviews (ADB, 2025, pp. 18–19). That’s good—but the guidance should set clear “no-go” triggers when legacy harms persist.

“Where a project… has already received… clearances… the borrower/client will conduct an audit… [and] may be required to undertake additional assessments and… disclosures” (ADB, 2025, p. 18). 

“The borrower/client will ensure that the E&S assessment includes a review of institutional capacity… and include… activities to strengthen capacity…” (ADB, 2025, p. 18). 

Recommended action. Where audits find unresolved legacy harms or weak capacity, require remedy first (compensation, restoration, compliance upgrades) before any ADB funds are disbursed.

Conclusion

The draft guidance retains critical escape valves—“control or influence,” “deferral,” “materially consistent,” “less stringent than GIP,” and flexible monitoring/reporting—that have historically created loopholes. If ADB is genuinely committed to preventing harm, ESS1’s guidance must -

1. Eliminate deferral for high-risk elements

2. Require full coverage of all linked or necessary facilities

3. Prohibit downward deviations from GIP/EHSGs

4. Elevate “materially consistent” to be equivalent to ESSs

5. Establish strong, enforceable digital rights and enforceable, time-bound reporting/disclosure, and;

6. Embed independent, community-verifiable monitoring and remedies.

Critical Civil-Society Review of ADB’s Draft ESS1 Guidance Note.pdf

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