The need for stricter and efficient environmental laws has become imperative in the present age of climate change. Administrations, on a domestic and a global level need to formulate policies that reduce their carbon footprint and the per capita emissions of greenhouse gases. The first step in making this change towards a sustainable future is to regulate and monitor the activities of the industries that contribute the majority share towards polluting the environment, which means that firm environmental clearances and legislations need to be enforced. The EIA is such a draft that aims to assess the impact of such projects on the environment.
The article aims to critically analyse the Draft Environmental Impact Assessment notification issued by the environment ministry in March 2020, highlighting the loopholes of this notification and suggesting measures that can be taken to protect the environment in the Anthropocene.
Draft EIA Notification 2020, ex post facto, sustainable development, environmental clearance, public consultation.
In March 2020, the Ministry of Environment, Forest and Climate Change in exercise of its powers conferred under Environment Protection Act, 1986 published the Draft EIA Notification 2020 inviting suggestions from the public. This 2020 Notification is going to supersede the 2006 EIA Notification and the subsequent amendments. Prior to 1994, getting an environmental clearance was purely an administrative decision with no legislative backing, till finally the then Ministry of Environment and Forests mandated an EIA for setting up of new projects or activity.
Environment Impact Assessment (EIA) is defined by the UNEP as a tool used to identify the environmental, social and economic impacts of a project prior to decision-making. It involves public opinion regarding likely environmental impacts of a proposed project with an aim to reduce adverse impacts. The Delhi High Court in Samarth Trust case had considered EIAs “a part of participatory justice in which the voice is given to the voiceless and it is like a jan sunwai, where the community is the jury.”
Problems with the EIA 2020
At the outset, finalizing this draft amidst a pandemic is bizarre because it restricts meaningful dialogue among the stakeholders on a complex, cardinal and comprehensive piece of legislation. The principles for undertaking the EIA were a result of The Rio Declaration, for activities which would have a negative impact on the environment. Including the effective public in the regulatory and decisive process is laid down in Principle 10 of the declaration. India is further bound by The Paris Agreement and The Copenhagen Accord to reduce emissions, making it essential to frame domestic laws which adhere to the international obligations. However, various facets of the new draft notification utterly disregard environmental jurisprudence, pushing regressive environmental policy, aimed at relaxing the procedure to give fast-track clearance to industries.
The 2020 draft legitimizes ex post-facto environment clearance which means that environment clearance (EC) can be given to projects even after they have started construction before securing EC. Granting ex post-facto approval goes against the precautionary principle i.e. better-safe-than-sorry approach which was recognized as customary international law in the landmark case of Vellore Citizens Welfare Forum v. Union of India. This practice was also declared invalid in Common Cause v. Union of India. Last year, the Goa government engaged in fraud in order to obtain clearance for an airport near the Mopa plateau. Even after this, no strict action was taken and instead the Expert Appraisal Committee (EAC) granted clearance after revisiting the project. Recently, the gas leak in a Vizag factory lacked environmental nod. These are only a few instances which show that granting ex post-facto approval can be dangerous as industries can regularize their illegal actions by paying a penalty amount. The Supreme Court in Association for Environment Protection v State of Kerala had held that commencement of projects without obtaining prior EC is a violation of the fundamental right to life under Article 21. Such a practice has also been discouraged by the apex Court in Alembic Pharmaceuticals v. Rohit Prajapati and gives rise to a situation of fait accompli causing irreversible damage to the environment.
The deadline for the public consultation process has been reduced which would greatly impact participation from all stakeholders. The time period for the conducting of public hearing has been reduced from forty-five days to forty days. Public has to submit their responses to any application seeking EC within twenty days from the earlier thirty days. This would negatively affect public discourse as there would not be enough time to prepare suggestions and views especially while adhering with the norms of social distancing.
Under clause 13(2) collection of baseline data has been limited to only one season other than monsoon for EIA Report for all projects other than River Valley projects. This is gravely inadequate because repercussions of polluting industries vary upon seasonal and temporal factors with change in season. It is especially troublesome for areas with great diversity where the ecosystem tremendously changes from season to season. Additionally, clause 13(6) allows outdated baseline data of up to previous three years to be submitted which further weakens the scoping process.
Project proponent now has to submit a yearly compliance report in contrast with the mandatory biannual compliance report in the 2006 notification. Although the Regulatory Authority can seek such compliance reports at more frequent intervals, if deemed necessary, this is tremendous leeway to the industrialists at the cost of the environment because during this period, irreversible environmental damage may be caused which could go unnoticed because of the extended deadline. Furthermore, the validity for environment clearance for mining is also proposed to be increased from 30 to 50 years.
Under paragraph 14(2), public consultation is only mandatory for all Category A and Category B1 projects of new or expansion proposals or modernization with capacity increase more than 50%. While this provision would be of huge help to industries facing court cases regarding clearance rules, it is a problematic amendment. It lacks scientific basis because public concerns may exist even at less than 50% increase in capacity as is evident from the experience of the Waste to Energy Plant (WTE) in Okhla, Delhi. This could cause major health issues to the people living nearby, apart from having other social consequences. This clause also accords discretion to the government to categorize projects as “strategic” to exempt them from public consultation and not publish any information related to such projects in the public domain. In fact, the basket of projects that do not require public consultation has swollen adding as many as fourteen new items to the list. These include some critical projects like construction of common biomedical waste treatment facilities and common effluent treatment plants. Earlier, giving blanket clearance to housing projects was challenged before the NGT which had ruled against such an enactment.
On a positive note, a definition clause has been added which would bring more clarity in the law and help in alleviating ambiguity. Through the draft notification, a penalty clause has also been added to levy fine on defaulters. Although it is a welcome move, the fine is too meager to have any deterrent effect. Violations can be reported either by the project proponent or by government authorities or by appraisal committee. In case of defiance of rules, 1.5 times the ecological damage assessed and economic benefit derived due to infringement shall be charged from the violator in cases of suo moto application while two times of that amount shall be charged if violation is reported by the government. This provision regarding reporting of cases is absolutely bereft of public participation and thus undermines the principles of natural justice.
What the EIA 2020 could have done
Requirement of ex-post facto approval should be restricted to establishments which fall in the grey area i.e. where there is doubt regarding their relevant category for obtaining environment clearance. The definition of ‘violation’ in the draft means failure to obtain prior EC but it must be broadened to include non-compliance of the conditions of EC. The provision excluding strategic considerations from public consultation is widely worded and has potential to eliminate public involvement on developmental projects. It is suggested that only parts of information which are confidential due to interests of national security should be exempted from public consultation in the impugned provision.
The EIA process should not be diluted by removal of screening and other stages for category B2 projects and ambit of projects in this category should be dwindled to avert serious environmental consequences. Apart from the Draft EIA Report, a GPS based shape-file as a Google Earth file of the proposed project must be also shared online along with the summary EIA on websites of SPCB/UTPCC, MoEFCC and project proponents for meaningful participation of the public. For a technical, scientific and legal document like the EIA, sufficient time must be given to the public for formulating a comprehensive response. This calls for an extension in the given period for submitting responses from what is currently mentioned in the draft. Moreover, any additional findings during the appraisal stage must undergo public consultation.
Under clause 17(5) of the notification, approvals may be required under other laws such as Forest (Conservation) Act, 1980 for diversion of forest land as a prerequisite for processing prior EC. It is submitted that this clause should also include recommendations from National Board of Wildlife (NBWL) and Monitoring Committees set up under Eco-sensitive Zones/Area in projects involving protected areas, wildlife corridors and eco-sensitive zones. Strict punitive actions must be taken for defaulters furnishing false information or non-submission of compliance report. In addition to this, ‘any person’ should be allowed to report against such violations to ensure people’s participation in governance of the environment.
The government needs to promote and protect the right to life and a healthy environment as enshrined in Article 21. Passing such a notification is in contravention to the various international agreements which India has pledged itself to, as it does nothing but weaken the domestic framework on environmental protection, which can have serious social and ecological ramifications in the long run. Therefore, a stricter EIA Notification is imperative in order to prevent a mockery of the law and to prevent profit-hungry corporate political nexuses from thriving under the Draft Notification. The government needs to bring down the delays in granting environmental clearance in order to improve India’s position in the ease of doing business rankings. Covid-19 has given us all a wakeup call to mend our relationship with the Earth; therefore, it’s time to make environmental laws stricter in order to ameliorate the wanton destruction of the environment.
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Author: Parnika Mishra, Dr. Ram Manohar Lohiya National Law University, Lucknow (RMLNLU) & Pranav Nayar, Rajiv Gandhi National University of Law, Patiala (RGNUL)