Written by Yashwardhan Singh
Associate Editor at Law & Order Fifth Year, BA. LLB. Symbiosis Law School, Pune
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
On the 12th of March, 2020, the Ministry of Environment, Forest and Climate Change (MoEFCC) released a draft of the Environment Impact Assessment (EIA) norms. The changes, however, are what can only be regarded as a retrogressing of India’s current environmental laws.
The protection of the environment and the need for industrialization have always been at loggerheads with each other. Industries have never been enthusiastic about pro-environment policies brought out by the government. However, the establishment of these industries does impact the surrounding environment in which such an industry is set up in negative ways - through the high proportion of noxious gases released into the atmosphere, through the release of toxic chemicals into nearby water sources, through the process of deforestation, etc.
It has been for this reason that Environment Impact Assessment was commenced so as to contribute to a more objective process of decision making in matters relating to the setting up of new industries or construction projects by aiming to curb needless and disastrous consequences for the environment. Despite this objective of the EIA, the draft EIA notification of 2020 is likely to be received with open arms by industrial and realty tycoons.
Background of the EIA
The EIA is a process of assessment of the possible damage to the environment, conducted before granting permission to the industry to set up its factories in a particular area.
The history of the EIA can be tied to the rise of American economic liberalization. When the environmental impact of industrialization came to be widely known in the late 1960s, a policy shift was demanded from the environmentally-conscious class of society and this led to the birth of EIA as a decision-making tool for the establishment of industrial and related projects.
By the late 1980s, the EIA was gaining momentum and a separate treaty was formulated with a transboundary context in 1991 which came to be known as the Convention on Environment Impact Assessment in a Transboundary Context (Espoo Convention). It was also added to the agenda of various other conventions with the International Monetary Fund (IMF) strongly pushing for EIA norms in a country’s domestic laws. Those nations which refused to do so were denied loans and grants by the IMF as the EIA had now become a pre-condition for availing such a benefit.
In India, implementing EIA policies started from the mid-1970s when the Department of Science and Technology was asked to assess the impact of river-valley projects from the Central Government. This was due to the globalization of pro-environmental norms and the gradual awareness of the human rights of indigenous people. Large dam projects such as the Sardar Sarovar Dam or the Tehri Dam faced considerable opposition from the people, resulting in movements such as the Narmada Bachao Andolan or the Save Silent Valley movement.
In spite of this, there was no law mandating for obtaining an environment clearance (EC) for new projects until 1994. On May 4th, 1994, the government passed a notification vide the powers granted to it under Section 3(1) of the Environment (Protection) Act, 1986, making it mandatory for anyone setting up new projects or expanding or modernizing their previous projects to obtain an environment clearance (EC).
It was in 2006 that a stronger EIA notification was passed by the Ministry of Environment, Forest and Climate Change (MoEFCC). Vide the notification, projects dealing in mining, river-valleys, thermal power plants, infrastructure, and industry were now mandated to get environmental clearance from the MoEFCC prior to starting their projects. The responsibility of granting this environment clearance now rested not with the central government but with the respective state governments. However, projects which involved considerations of defense and national importance, such as border-road projects, construction of army bases, construction of large dam projects, etc…, were still to be granted an environment clearance from the central government due to the huge importance and size of such projects.
Process of the EIA
It is necessary to understand the process of how the EIA works to be able to judge the efficacy of the Draft EIA, 2020. Depending on the size of a project, a project would either be granted an environment clearance from the Central Government or the State government. The process of the EIA involves five major steps, outlined below.
Screening: The first step of the process is to assess whether the planned project needs an Environment Impact Assessment. This assessment is carried out by the Expert Appraisal Committee (EAC) at the Union level and the respective State Expert Appraisal Committee (SEAC) at the state level. Various factors, from the location of the project to the scale of investment and type of development of the project, are taken into account when reaching the conclusion on whether such a project needs an environmental impact assessment before granting an environment clearance (EC).
Scoping: Scoping is the process where the purpose, structure, and limitations of all concerns for the environmental impact assessment are addressed.
EIA Report: After the process of scoping, the project proponent hires a consultant to prepare an EIA report which includes complete details of the proposed project. It is necessary that the report also mentions the measures to be taken for minimizing or preventing any negative impact. This report is written by the project proponent who seeks the environment clearance. This draft is sent to the MoEFCC by the project proponent and simultaneously, the project proponent also submits a request to the State Pollution Control Board (SPCB) to conduct the public consultation.
Public Consultation: Possibly the most important step of the process, public consultation refers to the process by which those bothered or locally affected by the process can raise their concerns which would normally be taken at the site of the project or a place near to it. The process is regulated by the State Pollution Control Board (SPCB) or the Union Territory Pollution Control Committee (UTPCC). Further, the SPCB/UTPCC is obliged to put up a Summary EIA report on its website, inviting responses from those who cannot physically come to the project site for raising their concerns. The whole process of public consultation has to be completed within a period of 45 days.
Final appraisal: After obtaining comments from the public, the final EIA report is prepared which is sent to be appraised by the EAC/SEAC. The EAC/SEAC then submits the report to the MoEFCC which would then consider the recommendations given by the EAC in its report and then either reject the project or grant environment clearance to the project proponent.
Armed with this knowledge of what makes an EIA and the reasons for the international implementation of EIA norms, one can understand more clearly how the central government’s new EIA norms are more of an effort to justify and legitimize the destruction of biodiversity than to protect it.
The Draft EIA, 2020
The purpose of the EIA has always been to scrutinize and assess the environmental impact of a project before the project has entered its development phase so that it can be gauged whether the project is to be allowed due to its low environment risk/damage or to be rejected due to the high risk it carries for the environment.
However, the 2020 Draft EIA notification seems to completely forget the reasons why EIA norms were passed in the first place. The 2006 EIA notification was in no way perfect and is not without its flaws. However, the 2020 notification further degrades an already poorly implemented law.
Firstly, the notification slashes the time for the public to give comments on the EAC’s report for a particular project to just 20 days. A shorter time period to submit responses and comments on EAC reports would greatly affect those who do not have immediate access to the reports of the EAC as well as on India’s indigenous tribal communities who are often at the suffering end of such projects due to forceful eviction and lack access to information and technology. This essentially results in restraining public engagements, which comes at an especially dangerous time when the global pandemic has restricted social gatherings.
Secondly, in cases where a project was commenced or completed without ever seeking or being granted an environment clearance, the notification allows for ex-post-facto prior environment clearance (EC). What this means is that a project which is undertaken without the required EC would be granted such clearance from the Ministry post the commencement of the project, with just some minor fines. Essentially, the law now merely imposes a moral burden on project proponents, who can choose whether or not they wish to apply for an EC before or after the completion of their projects.
What is absolutely bewildering to note is that the National Green Tribunal had struck down this practice of granting ex-post-facto prior environment clearance in 2016, which was further upheld by the Supreme Court of India in April 2020. Upholding the National Green Tribunal’s decision in 2016, the judge noted that the three industries named in the petition were in violation of the EIA notification of 1994 which mandated for the obtainment of EC before starting the construction of the proposed projects. It further set aside a circular issued by the MoEFCC in 2003 which granted post facto ECs to industries that had already commenced operations. The concept of granting post facto ECs, the court held, was against the very fundamental principles of environmental jurisprudence. Finally, the Apex Court directed each of the three industries in the petition to pay 10 crore rupees as compensation.
In 2017, the Union government tried to implement a post-facto grant of environment clearance in the state of Tamil Nadu through another notification, however, this was struck down by the Madras High Court.
The disastrous consequences of this practice of granting post-facto environment clearances is evident in India’s industrial tragedies of just the past two months. After the infamous Vizag Gas Leak that took place during the national lockdown period and killed 11 people, injuring thousands of others, it was found that LG Polymers, the company which operated the plant, ran the plant without the required environment clearances for over two decades. Similarly, the Baghjan Oil Field fire in Assam’s Tinsukia district on June 8, 2020, which scorched the entire area surrounding the explosion and left the biodiversity endangered, was found to be operated by Oil India Limited with environment clearances which were granted without holding the mandatory public hearings.
In the case of Electrotherm (India) Ltd. v. Patel Vipulkumar Ramjibhai, the Supreme Court, holding that the practice of granting an EC without holding a public hearing is bad in law, stated that doing away with the process of the public hearing was based on incorrect principles and hence the Court invalidated the action of excluding public hearing from the EIA process.
The third shortcoming of the new EIA notification is the reduction in the number of industries that require a full assessment. For example, only the largest projects from the construction industry need full scrutiny. Certain projects are completely excluded from public consultation. These include irrigation projects, projects involving the expansion of national highways, area development projects, and projects of defense and national importance.
While defense projects were always excluded from the public consultation, the Draft EIA of 2020 has excluded a new category of projects from public hearings - those involving “other strategic considerations”. The phrase ‘other strategic considerations’ has nowhere been defined in the Draft. The EIA elaborates that once a project has been categorized as a ‘strategic consideration’, any information related to such a project would not have to be put in the public domain. This ambiguous term bypasses the lawful processes of the EIA and can easily be manipulated to include certain other projects in the guise of “strategic considerations”, such as for example the construction of a dam, an industrial plant which would discharge hazardous waste material into the nearby river or as has been noted, the construction of a nuclear power plant in the name of energy security concerns.
Fourthly, apart from the grant of post facto ECs, the Draft explicitly states almost forty industries which need not obtain prior environment clearance. These include the industries of mining of coal and non-coal minerals, solar PV manufacturers, digging of wells, sand or extraction projects, etc. Moreover, mining projects will now obtain their environment clearances for a period of 50 years from the earlier period of 30 years.
Apart from the fallacies of the 2020 Draft, the old EIA process itself contains several shortcomings. The biggest of this has been found to be the high rate of acceptance of projects by the EAC. From 2007 to 2013, it was found that the EAC had a 100% rate of acceptance of all projects seeking permission for an EC. This blatant disregard for the environment, giving more priority to capital growth, is an incentive for more man-made disasters. Moreover, there have also been cases where the reports prepared by the EAC were found to be fraudulent, and copies of other reports involving different projects. The Bhopal Gas Tragedy of 1984 is a testament to what can happen should industries disregard environmental and public safety regulations.
In light of the above discussion, one can understand why the 2020 notification is a step towards the opposite direction and one much less effective than the previous notification of 2006. Majorly, however, the Draft EIA notification comes to cement the practice of granting post-facto environment clearances to industrial projects. Since 2017, for example, the EAC has approved at least 31 projects which violated EIA norms.
There is no doubt that the Draft Notification 2020 serves as an incentive for industries to invest in new projects and continue expanding their previous projects. Further, it grants a legal sanction to these industries to exploit the nation’s natural resources while keeping at stake the environmental implications of such industrial growth. The Draft, if passed into becoming the law, will stand to curtail the legitimate processes and the spirit of the EIA.
Further, not only does the Draft go well against the decision of the Apex Court in April this year, but it also goes against the two most pivotal principles of environmental law: the precautionary principle, which aims at curbing environmentally harmful consequences before it is too late; and the polluter-pays principle, which seeks to hold the person who pollutes the environment legally liable for the wrong caused to the environment due to his actions.
Industries owe an absolute and non-delegable duty of ensuring zero harm due to their activities towards the community as well as towards the environment they live in. The recent gas leaks in Andhra Pradesh’s Vizag and Assam’s Baghjan illustrate the failure to comply with EIA processes and their disastrous impact.
The deadline for the public to give comments and recommendations on the Draft EIA Notification, 2020 was extended first to 11th August 2020. It is doubtful, however, whether the government shall take into consideration the concerns of the public, given the non-compulsory nature of incorporating changes suggested by the public in the Expert Assessment Committee’s report as well as given the government’s track record to support industries over the protection of the environment. Should the Draft stand to pass into law in its original form, it would only be a matter of time before the courts step in to consider its legality and arbitrariness.
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