This blog is inscribed by Sambhav Sharma.
In March 2020, the Ministry of Environment, Forest and Climate Change issued a notification in the Gazette of India, proposing a new draft of the Environment Impact Assessment. The draft seeks to make certain substantial changes to the existing laws in force under the Environment Protection Act, 1986. While environmental issues are taking the limelight in the present times, and due importance is being given to environmental awareness, laws and policies, the draft bill introduced seems to contradict the popular notions of public participation in environmental affairs and transparency of the government actions, both of which existed in the previous EIA.
This article aims to critically analyse the Draft EIA notification, 2020 and study various provisions of the proposed law that not only serves against the idea of environmental protection but also gives the government a clean chit to become unanswerable for its actions.
What is EIA?
Environment Impact Assessment (EIA) is a statutory legal process of ascertaining environmental, social, economic and cultural repercussions of proposed projects. It serves as a tool to predict and discern the environmental impacts prior to the initiation of the project. Once the problems are identified, actions are taken to reduce the adverse impact of the said project on the environment and ensure that it is in accordance with the environmental guidelines.
EIA is a multi-level process wherein various consequences of permitting a proposed project are taken into account. It begins with a screening process which determines whether there even exists a requirement for an assessment, and lays down the blue print for it if the answer is in the affirmative. This step is followed by identifying specific issues that need in-depth analysis called ‘impact analysis’. The findings of the analysis are then translated into detailed reports and are submitted to the regulatory body. Bases on the report, the authorities decide the steps to be taken and establish monitoring systems for the permitted project.
The first EIA was promulgated in India in 1994 by the Union Ministry of Environment and Forests, which made Environmental Clearance mandatory for expansion/modernization of existing projects or setting up of new projects specified in Schedule 1 of the notification.
The 2020 draft notification seeks to replace the previous 2006 EIA guidelines and aims to amend 12 out of the 14 existing provisions.
Dilution of EIA 2020
The current draft notification makes it unreasonably easier for projects to avoid EIA. In the 2006 EIA rules, the process of exemption from EIA was rightly stringent. The projects were classified into two categories, A and B. While all projects in Category A were to strictly comply with EIA, Category B was further bifurcated into B1 and B2 based on the project’s level of adverse impact on the environment, and only the projects falling under the B2 Category were exempted from the tedious EIA process.
However, with the application of the amended provisions of the EIA 2020, a blanket immunity has been provided to 40 from the requirement of Prior Environment Clearance and Prior Environment Permission granted by the Regulatory Authority, pursuant to Clause 26 of the draft, titled ‘Exception of Projects’. This blanket exception can lead to devastating results as any activity that falls under the purview of these 40 categories shall go completely unchecked.
Undue Discretionary Powers to the Government
Another contention is that the Draft places excessive discretionary powers in the hands of the government. One such power is the government’s volition to classify an activity as “strategic”. Under Clause 5(7) of the Draft, “no information relating to such ‘strategic’ projects shall be placed in public domain.” The purpose of EIA is not only to assess environmental impacts but to also improve upon the actions taken to protect the environment. By informing the public the authorities can take better environmental decisions by being aware of a project’s potential adverse impacts on not just the environment but also the socio-economic and cultural aspects. Public participation provides crucial information and innovative suggestions to counter the problems. The 2006 EIA also placed importance on public participation. Appendix IV (1.0) of the 2006 EIA provides, “The Public Hearing shall be arranged in a systematic, time bound and transparent manner ensuring widest possible public participation at the project site(s) or in its close proximity District -wise, by the concerned State Pollution Control Board (SPCB) or the Union Territory Pollution Control Committee (UTPCC).”
However, the 2020 Draft Notification aims to reduce the public participation as it existed earlier. Clause 5(7) of the Draft notification allows the government to group certain activities like “national defence and security” as strategic. Such activities then are not subject to public participation and review. As stated in the clause, “no information relating to such projects shall be placed in public domain”. Clause 14 of the draft further lists numerous activities where public consultation is not required.
The public consultation process of the 2020 Draft EIA notification itself has been subjected to controversy. Set to be released in the public domain on 23 March, 2020, the publication of the draft notification got delayed owing to the COVID-19 Lockdown. The draft was ultimately released on 11 April, 2020. Even though the Environment Ministry originally set the deadline for public participation as 10 August owing to the delay in publication and the mandatory 60-day period for review, environment minister Prakash Javedkar overturned the decision and preponed the deadline to 30 June, giving little time to the public to express their concerns. However, the Delhi High Court on 30 June, revised the deadline to 11 August, 2020.
Ex-Post Facto Clearance
Another contentious provision in the 2020 EIA is the new ease of projects to get ex-post facto clearance. This implies that projects that are already violation EIA norms and have an adverse impact on the environment but have not cleared the EIA can apply for clearance after the initiation of the activity. The Supreme Court in the case of Ambelic Pharmaceuticals v. Rohit Prajapati and ors. has observed that “Ex Post Facto Environment Clearance is unsustainable in law.” The reason given is that one cannot identify the areas of concern and the likely adverse consequences of the activity after the damage has already been done and the project has already commenced with existing violations of the law in force. However, the Draft notification seems to have ignored the decision of the Apex Court.
A bare understanding of the intention of the government leads us to believe that there exists a serious lack of responsibility on their part. The manner in which the government has proceeded to sideline the public from participating in the process and contributing to the cause to ensure that no adverse action is taken vis-à-vis the environment speaks volumes of its attitude towards the electorate.
In a democracy, public participation is the right of the citizen. Furthermore, matters of environment do not concern the governmental authorities alone, but affect the population at large. In the case of T. Ramakrishna Rao v. Hyderabad Development Authority, the court observed that protection of environment to ensure right to health is a fundamental right and forms a part of Right to Life envisaged under article 21 of the Constitution. The fact that the government has turned a blind eye towards the judiciary and the Constitution is simply appalling.
Various initiatives such as ‘Let Me Breathe’ and LetIndiaBreathe are now trying their best to stop the government from proceeding with the draft by encouraging the public to contact the Ministry of Environment, Forests and Climate change and also spreading awareness about the cause. As a response to mass mobilization in favour of the cause, the fascist Indian government pulled down the LetIndiaBreathe website, curtailing the right of the people to be informed and to disseminate information, which forms a part of the fundamental right of freedom of speech under the Constitution of India.
On July 12, 2020, in an open letter to the Central Government, 63 former government office holders have expressed their concerns over the draft EIA. They have stated how “Many of the changes have, in fact, been proposed to circumvent the past decisions of the National Green Tribunal and the Courts” and term the move of the government as “Exploitative development”.
The 2020 Draft EIA Notification does not only put arbitrary and discretionary powers in the hands of the authorities to clear favourable and elite projects by classifying them as ‘strategic’, it also excludes the public from objecting or even reviewing numerous projects by allowing the government to not publish such proposals. Various instances of mishaps have been reported in India, such as the Oil India Limited Well in Assam that caught fire on 27 May 2020. The State Pollution Board of Assam reported that the Plant had been in continuous operation for over a decade without attaining necessary consent of the Board. Such projects, that are governed by the current EIA rules, show that there already exist execution loopholes in the present law. Rather than making the law more stringent to hold such operators responsible, the government seems to be moving towards a fresh disaster by giving them more autonomy and less accountability. What remains to be seen is the action of the government once the 60-day public review period is over.