by Anuroop Geetha Ashokan
This article was first published in MoneyonLive.
It is beyond any reasonable doubt that a Country like India needs Industrialisation and development to meet the requirements of its people. Technological advancements in our country are growing at a steady pace, which has created a conflict between the environmental values and developmental needs. In order to ensure a sustainable growth model a balance needs to be reached on the developments without impacting the environment. It is necessary that a study on the consequences of projects, plans or policies at different levels must be assessed before the projects are executed.
MOEF under the rule 5 of the Environment (Protection) Rule 1986 notified mandatory EIA for 29 designated projects. Environment impact assessment is a process under the Environment (Protection) Act, 1986, which prevents industrial and infrastructural projects from being approved without proper oversight. This process ensures that every project should go through the EIA process for obtaining prior environmental clearance. EIA covers projects such as mining of coal or other minerals, infrastructure development, thermal, nuclear and hydro-power projects, real estate and other industrial projects. The projects are assessed based on their potential impact on the environment. EIA examines these consequences and predicts further changes in the environment. Based on these assessments, projects are either granted or denied environmental clearance by a panel of experts. EIA is considered as an instrument for reconciliation between developmental needs and the impacts caused on the environment. EIA foresees and avoids potential danger as “Prevention is always better than cure”.
EIA is a multi-disciplinary process which involves various steps, which begins with a preliminary study to find out whether a project causes significant adverse effects. If there are adverse effects of the project, then EIA becomes necessary or else assessment is not required. Institutionalization of impact assessment in India started in the early eighties but the first notification was published on 27th January 1994 with provision for central clearance for projects listed in the Schedule S.O. 60(E). This was considered as a principal piece of legislation governing environmental impact assessment. The Applicants for new projects for modernization of existing industry were to submit an EIA Report along with the management plan. The notification made it compulsory to conduct an EIA study report to the Impact Assessment Agency. A committee of experts would evaluate and assess the report and make recommendations based on the technical assessment of all available documents and data.
As per the notification under clause (a) of sub- rule (3) of rule 5 of the Environment (Protection) Rules, 1986 invites objections from the public within sixty days from the date of publication of the said notification, against the intention of the Central Government to impose restrictions, and prohibitions on the expansion and modernization of any activity or new projects being undertaken in any part of India unless environmental clearance has been accorded by the Central Government or the State Government in accordance with the procedure specified in that notification was published as S.O. No. 80(E) dated 28th January, 1993. EIA notification was applicable to all projects which cross the investment threshold limit.
Major Objective of the EIA Processes:
- a. Predict the environmental impact of projects in advance
- b. Conduct baseline environmental data of the area where project has been proposed
- c. Find ways to manage and mitigate the expected adverse environmental impacts of the project.
- d. Stage the projects as per the local environmental conditions
- e. Public participation and opinion of the experts for the decision making.
EIA 1994 Notification had four schedules:
- Schedule 1: It states about 30 Projects which require approval from Central Govt for their environmental clearance.
- Schedule 2: It states the procedure for seeking environmental clearance of projects.
- Schedule 3: It states about the composition of an expert committee for EIA.
- Schedule 4: It mandates a public hearing of matters with further review by a committee of experts in certain cases. Any member of the public could have access to a summary of the project report and the detailed environmental plans.
The Union Ministry of Environment and Forest (MoEF) notified the new EIA Notification on 14th September 2006. The objective of EIA Notification 2006 is to address the limitations in the old EIA Notification (1994). The draft notification was placed on the MOEF website for nearly one year to seek comments from the public.
As per the 2006 notification both the Central agency and the state agency are given the power to make impact study for projects of separate types with prescribed threshold limits. The major difference in the EIA Notification 2006 from the earlier one (1994) is its attempt to decentralize power to the State Government. Earlier all the projects under Schedule 1 went to the Central Government for environmental clearance, but as per the new notification, a significant number of projects will go to the state for clearance depending on its size/capacity/area. The notification also has made provisions to form an expert panel, the Environment Appraisal Committees (SEAC) at the State level. The Projects or activities are categorized as “A” and “B” in the schedule and this categorization is based on the spatial extent of potential impact on human health, natural and man made resources. Category “A” projects and activities require clearance from MOEF on the recommendation of an expert appraisal committee (EAC) constituted by the Central Govt and Category “B” Projects and activities require prior clearance by State Environment Impact Assessment Authority (SEIAA) on the recommendation of state expert appraisal committee (SEAC). Projects under Category “B” are again divided into “B1” and “B2”, where projects under category “B1” require mandatory EIA Clearance and Projects under category “B2” do not require EIA Clearance.
This 2006 notification also talks about ‘Scoping’, which was completely missing earlier 1994 notification. The terms of reference (ToR) of the project will now be decided by the SEAC at the state-level and by Environment Appraisal Committees (EAC) at the Central level. This will be decided on the basis of the information provided by the proponent. If needed the SEACs and EACs would visit the site, hold public consultation and meet experts to decide the ToR. The final ToR has to be posted on the website for public viewing. If the EAC does not decide the ToR within the stipulated time, the project proponents can go ahead with their own ToR. Though there is clear mention of appraisal in the EIA process, there is no mention of post monitoring, a very important part of the entire EIA process. The focus of the 2006 Notification has been to reduce the time required for the entire environment clearance process. The earlier process took around 14-19 months for Rapid EIA and 21 to 28 months for comprehensive EIA. As per the 2006 notification, the category A project will be completed only in 10.5 to 12 months.
The Ministry of Environment, Forest and Climate Change (MoEF & CC) has published the draft Environment Impact Assessment (EIA) Notification on 23rd March 2020, with the intention of replacing the existing EIA Notification, 2006 under the Environment (Protection) Act, 1986. The draft notification has various major departures from the previous notification and many of the clauses seem arbitrary. The notification provides excessive power to the government in providing environmental clearance to projects. Various provisions in the new notification will give the Govt a free hand in providing project clearances with ease without any public consultation, which might lead to many environmental disasters in future. Many of the provisions in the EIA 2020 draft notification beats the very purpose for which the EIA Process was introduced. Through this article, I am trying to criticize and highlight some of the provision which I feel will adversely affect the citizens:
a) Post Facto Approval: As per the draft notification the environment clearance on the project can be obtained even after the project has been started. So, if a project has come up without environment safeguards or without getting environment clearances, it could carry out operation under the provision of the new draft EIA 2020. This clause is destructive because we already have several examples before us where projects running without EIA clearances had ended up in bigger disasters. An example was the LG Polymer Plant in Visakhapatnam, where the styrene gas leak happened on 7th May 2020, this incident took the lives of 11 people and more than 1,000 people got sick after being exposed to the gas. It was revealed that the plant had been running for over two decades without any clearances. A similar incident was reported on 27th May 2020, where due to poor adherence of environment norms, the natural gas of Oil India Limited in eastern Assam’s Tinsukia district had a blowout and caught fire. This caused severe damage to the livelihoods in the region rich with biodiversity including two deaths and around 1600 families had to be evacuated for the village.
The government had bought this ex-post facto environment clearance in its EIA notification in 2006, however this amendment was struck down by the National Green Tribunal and stayed by the Madras High Court. Further recently in April 2020, the Supreme Court in the case of Ambelic Pharmaceuticals v. Rohit Prajapati and others with the bench comprising of Justice D. Y. Chandrachud and Justice Ajay Rastogi had passed a judgement saying, “Ex Post Facto Environment Clearance is unsustainable in law.” Court stated that naturally one cannot ascertain what the likely consequences are after the damage is already done and the project’s proponents also have been proactively concealing violations. Nevertheless, the government has been pertinent in introducing ex post facto environment clearance so as to exempt them from the ruling and they have introduced it in the 2020 notification.
b) Changes to Public Consultation Process: The new notification the time for public consultation from 30 days (in 2006 notification) to 20 days. This reduction of time will lead to limiting the time for any opposing views or arguments on the project. Generally, it was considered that even 30 days were not adequate enough for the public to understand the project, study its impact on the environment and then raise their issues or concerns before the authorities. If you look at an EIA report, it runs into 1000’s of pages in English, which for an ordinary citizen will be difficult to understand. Further he/she may need to consult subject matter experts to understand the document which covers technical aspects like biodiversity, air pollution, water pollution and socio-economic considerations etc. The notification also provides lesser time to raise objections as the draft notification also provides that the whole process of public hearing itself shall be reduced from 45 days to 40 days. The reduction period is also against directions in 2000 of the Gujarat high court in Centre for Social Justice v. Union of India, when it insisted by the court on providing a minimum of 30 days for public hearing. By reducing the time Govt is trying to provide project clearances without providing adequate time for the Public to provide their fair representation. In my opinion this provision is against the natural justice principle providing an opportunity of fair hearing of the other party.
c) No EIA Clearance required for “Strategic Projects”: The draft has expanded the list of projects which need no require any public consultation include those related to irrigation, construction and area development, expansion and widening of highways, and off-shore mining. Apart from that one of the clauses in the draft says:
“All projects concerning national defense and security or involving other strategic considerations, as determined by the central government, shall require prior-environment clearance, from the ministry without any change in the category of the project but no information relating to such projects shall be placed in the public domain.”
Now under this clause the government will have the discretionary power to declare any Project as a strategic project. The projects concerning defense and security expected from public consultation are comprehensible but the adjoining term “strategic projects” seems quite ambiguous, as now government can designate any project under this term as to restrict public interference. In case of such strategic projects no information shall be placed in the public domain as well. Govt authorities can help Industrialists and term any project as a strategic project and get the same executed without any resistance. The Government has not provided any clear guidelines on the type of projects which can be termed as Strategic Project, hence it becomes arbitrary.
Further projects which require 1,50,000 Sq. Mtrs do not need any scrutiny and in the earlier notification this was 20,000 Sq. Mtrs. Govt. had increased the area for this criterion by more than seven times without any adequate justifications. The point that needs to be noted that a small Airport requires only 30,000-40,000 Sq. Mtrs. Hence with the proposed clause in the notification, projects like an Airport can be exempted from any scrutiny.
d) Exemption of Public for reporting violation: As per the new draft notification violations can be reported either by the applicant of the project or the Government Authorities. As per the provision the cognizance of the violation shall be made on the:
- Suo Motto applicant of the project
- Reported by the Govt. Authorities
- Found during the appraisal by the Appraisal Committee
- Found during the process of application, if any by the regulating authority.
There is no logic in putting such a clause that the violator himself or the govt will come forward for reporting the violations. By exempting the public from cognizance of the violation, transparency of the notification gets diluted. In case if the Govt is of the opinion that all projects should be thoroughly scrutinized then the citizens or public should also be provided with the authority to report the violations.
e) Relaxation on the submission of Compliance Reports: As per the 2006 notification a developer of the project was supposed to submit a compliance report on the project every 6 months, but with the new draft notification that has been increased to a year. This is problematic as certain environmental consequences on vulnerable communities may go unnoticed if compliance reports submission period get extended to one year.
f) Exception from public consultation: As per the new notification Govt has defined several projects that would be exempted from public consultations, which include all linear projects under the border area. “Border Area” as per the notification is defined as areas falling under the 100 Kilometers areal distance from the line of actual control with the bordering countries of India. So, the Govt will have the power to develop any project within 100 Kms from the border without any public consultation or scrutiny. Imagine Places like the North-east where the whole state itself is very small and they share borders with other countries. So, as per the notification Govt can make any developments within 100 Kms from these borders without consulting anyone including the state govt’s. Nobody can question such constructions, as these constructions will get legally valid as per the current draft notification. I believe such provisions will lead in providing excessive power to the central govt and will be against the federal structure of our country.
g) Exemption of several large industries from public hearings (B2 category): As per the notification B2 industries do not need public consultation or EAC reports. A non-exhaustive list includes:
- Chemical manufacturing and petroleum products
- Modernization of irrigation
- Buildings, construction and area development
- Inland waterways
- Expansion or widening of national highways
- All projects concerning national defence and security
- Projects involving ‘other strategic considerations’ as determined by the central government
- Offshore projects located beyond 12 nautical miles (onshore or offshore oil and gas drilling etc.)
- Large scale renewable energy projects like dams
This may be against international environmental law and agreements like the Stockholm Declaration 1972, the Rio Declaration 1992 and COP 25, to which India is a party. The basis for classification of these projects is very normative. It only depends on their size and capacity, and not just their impact on the environment and health of the population. The size of a project and the environmental risks it could cause may not always be positively correlated.
h) Increased environmental approval period for Mining projects and other heavy industries: The period for the environmental approval for mining projects has also been increased for a period up to 50 years from 30 years and river valley projects validity period has been increased to 15 years from 10 years. This increases the risk of irreversible environmental, social and health consequences on account of the project remaining unnoticed for long.
i) Notification of some areas as ‘Economically Sensitive Areas’: The new Notification proposes declaration of some areas as ‘Economically Sensitive Areas’ without a public hearing or comments from stakeholders, which is against democratic principles.
j) Risk to Protected Areas: As per the new notification allows several red and orange toxic industries to operate as close as 0-5 Km from a Protected Area, which may risk the protection of the diversity of the country’s forests and our source of water. According to critics and environmentalists, the radius chosen is arbitrary and too less, and suitable scientific methods should be adopted to determine the appropriate distance from a Protected Area.
By publishing the EIA Draft Notification 2020, Govt had made their agenda very clear that the notification is in favor of Industrialization at the cost of the environment. The Government is putting aside their primary goal of sustainable development and working on alternative goals of Industrialization and ease of doing business. EIA new notification has been a clear deviation from the principles of sustainable development, which had been the motto for the last two decades. Principle of sustainable development and precautionary principle became part of India’s domestic legal framework through the famous case Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715, the Supreme Court of India declared these principles became part of the law of the land. Further with the enactment of the National Green Tribunal Act in 2010, the principle of sustainable development, precautionary principle, and polluter pays principle became an explicit part of India’s legislative framework. Hence, the EIA draft notification 2020 is a clear deviation from these principles and our dissent on the provisions need to be clearly represented In front of the Govt before it gets enacted. Hence, being a citizen of this country and through the powers conferred by the constitution of India, it’s our duty that we all should participate in the law enactment process by giving our fair opinion on the draft notification.
Let’s all raise our voice for the protection of our environment.
Let’s all raise our voices for our future generations.