With the steady decline of India’s environmental quality, Environmental Impact Assessment has become an important tool for integrating environmental and social considerations into development decision-making. The significance of this process in preventing further environmental degradation and ensuring sustainable development cannot be overstated. However, the recently issued Draft Environmental Impact Assessment Notification, 2020 is a cautionary tale on environmental protection in India. It has come under criticism for substantially diluting the Environmental Impact Assessment process, in violation of well-established principles of environmental law. Highlighting the fundamental issues of the proposed amendments, the article discusses the legality of the Draft Notification.
Introduction
Environmental Impact Assessment (EIA) is a cornerstone of environmental policies and has been adopted extensively across the world. It is a formal study undertaken to assess the potential impacts of development activity on the environment. It ensures that projects, such as those relating to mining, infrastructure development, nuclear and other industrial projects are only authorized with proper oversight. The process, therefore, induces caution and demands a precautionary approach by which uncertainty and environmental risks must be evaluated.
The history of EIA in India can be traced to the enactment of the Environment (Protection) Act, 1986 (EPA) under which the first EIA Notification was issued in 1994. It was replaced by the EIA Notification, 2006. India thus set in place a legal framework regulating industrial and development activities that are likely to have a detrimental impact on the environment. Environmental Clearances (EC) are issued after a rigorous 6-stage impact assessment involving scoping, preparation of a Draft EIA Report, public consultation, preparation of the final EIA, appraisal, and finally, the grant or rejection of Prior Environment Clearance.
Earlier this year in March, the Ministry of Environment, Forest and Climate Change (MoEFCC), Government of India published the Draft Environmental Impact Assessment Notification, 2020 (Draft Notification) in supersession of the earlier EIA Notification, 2006. The Draft Notification, issued under the powers vested in the Central Government under the Environment (Protection) Act, 1986, seeks to make the EIA process “more transparent and expedient through the implementation of the online system, further delegations, rationalization, standardization of the process”. However, it has raised red flags among environmentalists and has been widely criticized for undermining environmental protection with its ‘anti-environmental’ provisions. Discussed below are the salient issues with the Draft Notification.
The Grant of Ex-Post Facto Environmental Clearances
The most controversial provision is the grant of environmental clearance to a range of industries on a post facto basis. The Draft Notification exempts forty projects, listed under clause 26, from requiring a prior-EC. All projects concerning inland waterways, expansion/widening of national highways, and construction projects of up to 150,000 sq. m are also exempted.
Projects that have commenced operations illegally without securing the requisite environmental permits and clearances can be legalized through clause 22. Such project proponents may later apply for ECs on the condition that they implement remediation and augmentation plans corresponding to 1.5 to 2 times the ecological damage assessed and economic benefit derived due to the violations. The Draft legitimizes projects that have caused deleterious effects on the environment, in violation of the Environment Protection Act, 1986, against the payment of a penalty. The Draft Notification states that such violations being recurring may come to the notice of the Regulatory Authorities in the future, and it is, therefore, necessary to bring such projects under the regulations in the “interest of environment at the earliest point of time rather than leaving them unregulated and unchecked”. This creates a fait accompli situation where the only option left is to accept the environmental damage caused, encouraging future developers to flout environmental norms with a relatively small price to pay.
Moreover, an ex post facto clearance defeats the very purpose of conducting an EIA which focuses predominantly on preventing irreversible change to the environment. Operations would commence with no prior assessment, increasing the likelihood of irreversible ecological damage, which no amount of money can never compensate.
Ex Post Facto Clearances have been granted sparingly in the past, on a case-to-case basis[1], for the reason that it is against the ‘precautionary principle’. The precautionary principle is a cornerstone principle of India’s environmental protection policies flowing from the Constitution, and various environmental statutes, especially the Environment Protection Act, 1986. A decision to grant ECs is only permissible if based on a comprehensive impact assessment.
Further, allowing post- facto clearances in direct contravention of the Supreme Court’s recent decision in Alembic Pharmaceuticals v. Rohit Prajapati[2], where post facto environmental clearances were found to be unsustainable in law. It held that environmental law cannot countenance the notion of an ex post facto clearance. It reasoned that the EIA Notification “warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment” and that an EC can only be granted after various stages of the decision-making process have been completed. It ultimately held that a retrospective EC is alien to environment jurisprudence and contrary to both the precautionary principle as well as the need for sustainable development. In this case, the Court upheld the 2016 order of the National Green Tribunal setting aside a circular issued by the Ministry of Environment and Forest on 14 May 2002, which provided for the grant of post facto ECs. The Court relied on an earlier decision in Common Cause v. Union of India[3] which held that the grant of an EC cannot be taken as a mechanical exercise, and can only be granted after due diligence and reasonable care since damage to the environment can have a long term impact. Such importance has been given to ECs by the Supreme Court and giving blanket exemption to several projects, violates the fundamental principles of environmental law.
Exclusion of Projects from the Purview of EIA and Public Consultation Process
Public participation plays a fundamental role in environmental decision-making and forms an essential feature of democracy. Local communities and individuals that are affected by proposed projects have a right to have their concerns heard and accounted for while assessing the potential impacts of such projects. The Draft Notification significantly dilutes and undermines public participation in the EIA process.
Firstly, the period given for the public to submit their responses during a public hearing for any application seeking environmental clearance has been reduced from 30 days to 20 days. Additionally, it requires the public hearing process to be completed within 40 days, compared to 45 days provided under the 2006 Notification. This gives the public inadequate time for the potential dangers to be comprehended and opposed. A meaningless public hearing, where the affected communities are not given a reasonable time to prepare comments, suggestions, and effectively represent themselves, derogates the transparency and credibility of the EIA process.
The High Court of Gujarat in Centre for Social Justice v. Union of India[4] had issued directions related to public participation in environmental decision making, one of which required the executive summary of the project to be made available at all local places at least 30 days before the date of the public hearing. In another case of Utkarsh Mandal v. Union of India[5], the Delhi High Court noted that the opportunity to participate and voice an opinion on the project has to be a meaningful one and it can be rendered ineffective by not insisting that the Executive Summary be made available 30 days in advance of the public hearing.
Secondly, the Draft Notification proposes to expand the list of projects that are exempted from the public consultation process while seeking environmental clearance. Clause 14(2) provides a new list which includes modernization or irrigation projects, all building constructions, and area development projects, expansion or widening of national highways, all linear projects like pipelines in border areas, and all offshore projects located beyond the 12 nautical miles. The ‘border area’[6] is defined as “area falling within 100 kilometers aerial distance from the Line of Actual Control with bordering countries of India.” This area covers much of the Northeast, the repository of the country’s richest biodiversity
The exclusion of all Category ‘A’ and Category ‘B1’ projects proposing new developments or expansions or modernization with capacity increases of less than 50% from public consultation is a matter of grave concern. The categorization of projects under EIA notifications is dependent on the size of the project and its potential impact on the environment. Under the 2006 Notification, Category ‘A’ projects have potentially significant impacts and are mandatorily required to undertake a public hearing before an EC may be granted by the central authority. Projects under Category B1, which have potentially less significant impacts, also require public consultation.
Under the 2006 Notification, Category ‘B2’ projects are exempted from the requirements of both EIA and public consultation. However, Category ‘B’ projects are classified as Category ‘B2’ only after a determination by the concerned State Level Expert Appraisal Committee (SLEAC) at the screening stage. The Draft Notification enlists Category ‘B2’ projects in the Schedule and immunizes them from the scoping or screening stage. It then excludes such projects, which include potentially disastrous mining, oil exploration, river valley projects, thermal power, production of chemicals, and acids, from pubic engagement.
The 2006 Notification exempts projects concerning national defense and security, or “involving other strategic considerations as determined by the Central Government”, from the purview of EIA. The Draft Notification further states that information on “such projects shall be placed in the public domain”. This confers wide discretionary powers on the Government with no provision for accountability.
Further, earlier EIA notifications required building and construction projects covering a built-up area of 20,000 sq. m or above to obtain an environment clearance. The MoEFCC brought into effect an amendment in 2016, which permitted such projects covering 20,000 to 01,50,000 sq. m of built-up area to proceed without environment clearance and public consultation. This amendment notification was challenged and before the National Green Tribunal, and was set aside for diluting the environmental safeguards provided under the Environment Protection Act, 1986 and the EIA Notification, 2006.[7] The Draft Notification re-introduces this provision, rendering ineffective the NGT’s judgment.
The industries that have arbitrarily excluded public participation can have the most disastrous effects on the livelihood of the people living in the affected area. Depriving people of their voices in matters so fundamentally linked to their survival cripples the democratic nature of our country. The existing public consultation process already suffers from procedural lapses and irregularities. The Draft Notification is another thorn in the flesh.
The Weakening of the Monitoring Mechanism, Post EC
The EIA Notification, 2006 mandated project proponents to submit half-yearly compliance reports[8], to ensure that the activities undertaken comply with the terms and conditions on which the prior EC was obtained. The Draft Notification, under Clause 20(4), requires the submission of compliance reports only once a year. This significantly weakens the post-approval monitoring mechanism established to check that industries are following the necessary environmental and social safeguards that were identified during the EIA process and public hearings. For example, any activity undertaken with a cross-region implication and not previously approved is likely to go unnoticed during the extended reporting time. Whereas, half-yearly compliance reports are more effective in detecting such activities.
The current irregularity in monitoring and evidence of non-compliance of EC conditions across various industrial and infrastructural projects reflects the dismal reality of the monitory mechanism. The Draft Notification, instead of strengthening environmental regulation, further weakens it.
Violation of the Environmental (Protection) Act, 1986 and the Constitution of India
The Draft Notification violates its Parent Act (EPA) and is against the fundamental right to life guaranteed under Article 21 of the Indian Constitution. It derogates the precautionary principle, the polluters pay principle and the mandate for sustainable development which forms the bedrock of environmental governance in India. This, in turn, undermines India’s international commitment under numerous multilateral treaties.
Section 3 of the EPA confers on the Central Government to take measures to protect and improve the quality of the environment and preventing controlling and abating environmental pollution. Therefore, any action taken by the Central Government must be beneficial to the environment. This provision seems to enshrine the Principle of Non-Regression, applied for the first time in Indian environmental jurisprudence by the NGT[9], which stipulates that environmental law should not be modified to the detriment of environmental protection. Following this intent, the EIA 2020 draft notification, issued under this provision, is in contradiction to the powers vested to the Central Government.
Further, the right to live in a healthy, pollution-free environment has been accorded the status of a fundamental right under Article 21 of the Constitution of India, mandating the State to enact policies, laws, and regulations consistent with it. Citizens also have a right to be part of the decision-making process, especially when a public action is undertaken which would directly affect them
The Draft Notification provided that the public would have the opportunity to submit comments for 60 days following its publication in the Gazette of India on April 11, 2020. This set the deadline for comments as of June 11, 2020. On May 8, 2020, the Ministry issued a notice declaring that the public comment period would be extended “for a further period of 60 days” due to the restrictions imposed by the Covid-19 pandemic. In the same notice, however, it was stated that comments on the Draft Notification would be due on June 30, 2020.
A petition was filed before the High Court of Delhi[10] to resolve the discrepancy in the notice and consider further extending the public comment period due to the impact that the Covid-19 restrictions have on adequate public participation. The High Court set the deadline for comments is August 11, 2020, and declined to extend the period further. It however addressed the issue of the Draft Notification being only published in English and Hindi and ordered it to be translated into the 22 languages recognized in the Indian Constitution and posted on several government websites within ten days. A contempt petition was filed when the Government had failed to comply with this order. The Central Government then challenged the High Court order before the Supreme Court, which was rejected on 13th August 2020. The Draft Notification to date has not been published in the vernacular languages. The refusal to do so prevents access to information and takes away the right to effective participation.
Conclusion
The global restrictions imposed on development activities during the Covid-19 pandemic has significantly reduced our impact on the environment, allowing us to revaluate our response to fight the climate crisis. India, being especially vulnerable to global warming and climate change, needs to strengthen its inefficient environmental policies, and adopt a more vigorous approach to ensure sustainable development.
The Draft Notification negates any progress made so far in environmental governance. It significantly waters down the provisions of the EPA and EIA Notification 2006 while expediting and easing the process of securing its. It serves the interest of the business community by doing away with the requirement of ECs for numerous projects, legalizing environmental violations through post facto clearances, and reducing the timeline for obtaining ECs.
FAQs
- What is EIA, and why is it given such importance in environmental law?
- How does the grant of ex post facto environment clearances violate well-established principles of environmental jurisprudence?
- How does the Draft Notification weaken the role of public participation in the environment clearance process?
- How does the Draft Notification weaken the post-environment clearance monitoring mechanism?
- Does the Draft Notification violate the Environmental (Protection) Act, 1986, and the Constitution of India, thereby making it unsustainable in law?
References
- The Draft Environment Impact Assessment Notification, 2020 http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf
- The Environment Impact Assessment Notification, 2006 http://www.environmentwb.gov.in/pdf/EIA%20Notification,%202006.pdf
- Indian Kanoon https://indiankanoon.org/
- [1] For example, the Koodankulam Nuclear Power Plant Corporation was granted ex post facto environment clearance in 2013. Earlier this year, ex post facto environment clearance was given to a coal mining project in the Dehing Patkai Elephant Reserve Forest after 16 years of illegal mining.
- [2] 2020 SCC OnLine SC 347
- [3] (2017) 9 SCC 499
- [4] (2000) 3 GLR 1997
- [5] (2009) SCC OnLine Del 3836
- [6] Clause 3(6), Draft EIA Notification, 2020
- [7] NGT Order, Society for Protection of Environment & Biodiversity v. Union of India and ors, 2016
- [8] Section 10(ii), EIA Notification, 2006
- [9] Supra note 7
- [10] Vikrant Tongad v. Union of India, W.P. (C) 3747/2020 & CM APPL. 1342/2020
