Explained: The Curious Case of India’s Draft EIA Notification 2020

For the past few months, there has been an immense hue and cry over the draft EIA Notification, 2020.

For the past few months, there has been a public outcry over the draft Environment Impact Assessment Notification, 2020. Activists, environmental groups, biologists and students have claimed that the notification is “anti-people”, “anti-environment” and “pro-industries”.

The deadline for the public to file objections and suggestions about the draft EIA notification is Tuesday, 11 August. On Monday, Union Minister Prakash Javadekar said that the “thousands of suggestions” received would be considered before the final draft is made.

Let’s break down what the present draft EIA notification is – and what are its possible repercussions and consequences.

Origin of EIA and Its Relevance in India

Environment Impact Assessment (EIA) is a formal legal process which examines, evaluates and predicts the environmental denouement on any developmental programme or project. The concept of EIA has its roots in the US. Espousing neoliberal policies in the 1970s, the country passed environmental laws by bringing in two important systems for environmental decisions – scientific assessment and public participation.

Due to huge public pressure, the EIA process was founded by the enactment of the National Environmental Policy Act, 1970. Most of the nations in the world have implemented EIA. On one side, it acts as a key to control the activities of private entities. On the other hand, it is a pre-requisite for grants or loans by international financial institutions.

Since the inception of EIA in 1994 in India, it has been a thorn in the flesh of both the industry and activists.

EIA is statutorily backed up by the Environmental Protection Act, 1986, which was enacted after the Bhopal gas leak disaster in 1984. Before 1994, it was an administrative requirement for mega projects to obtain environmental clearance from the central ministry. A new EIA legislation was notified by the Ministry of Environment, Forests and Climate Change in 2006. This was further redrafted by the ministry in 2020 to make it more transparent and expedient.

EIA was fundamentally brought into effect for public good. But, in reality, it has a contrasting effect.

Some Important Provisions in the New Draft EIA, 2020

• The notification defines three categories of projects namely A, B1 and B2 founded on the social and economical impact and geographical extent of these impacts.
• The notification envisages two kinds of approval – prior environment clearance (EC) with the approval of expert committees and environmental permission or provision (EP) without the approval of expert committees.
• Almost 40 different projects such as clay and sand extraction or digging well or foundations of buildings, solar thermal power plants and common effluent treatment plants are exempted from prior EC or prior EP.
• Several projects such as all B2 projects, irrigation, production of halogens, chemical fertilisers, acids manufacturing, biomedical waste treatment facilities, building construction and area development, elevated roads and flyovers, highways or expressways are exempted from public consultation.

What’s the Debate About?

Principally, the notification is issued in order to impose limitations and proscription on certain projects or expansion or modernisation of any existing projects.

One of the most important objectives of the Environmental Protection Act is to protect and improve the environment. But the provisions of the new EIA draft are against the objective of its parent act and itself.

Here is a detailed breakdown of the issues that are being hotly debated about the draft EIA notification.

Ex Post Facto Clearance of Projects

In March 2017, the Environmental Ministry passed a notification stating that any project functioning without EC can apply for environmental clearances. Now, this scheme is turned into a permanent move through the draft EIA, 2020. Primarily, all the industrial units and projects operating illegally without environmental clearance have an opportunity to turn into legal units under this provision by submitting a remedial plan and by paying the prescribed penalty. But the object behind such a provision till remains vague.

But can a remedial plan and compensation undo the damage done to the environment?

Even if the environmental clearance for such project is rejected ultimately, the damage done to the environment would be irreparable. Any projects which may have grabbed land illegally or by coercion or by fraud and operate without environmental safeguards, too, have an option to benefit from the scheme. The Supreme Court, in a case related to the industrial units functioning in Gujarat without prior environmental clearance, passed an order stating that post facto clearances are against the jurisprudence of environmental law and it is detrimental to the environment. Three industrial units were manufacturing pharmaceuticals and bulk drugs for several years without any clearance and caused air pollution in their areas.

In April 2020, during the lockdown, a coal mining project was approved in the Dehing Patkai Elephant Reserve Forest through video conference. On the other hand, a penalty of Rs 43.25 crore was levied by the Assam Forest Department for ravaging the Dehing Patkai Reserve by illegal mining for a period of 16 years from 2003. This situation is quite problematic as the mining project gets benefited in spite of its illegal violations (illegal mining).

Post facto clearance was provided in India even before the issuance of these notifications. Based on the report submitted by Chennai Solidarity Group, it was found that between 2001 and 2013, IIT Madras has constructed buildings over 52 acres and it was engraved out of the quondam deer park. But the institution has not obtained any statutory clearances for cutting of trees and diverting use of forests. Nor it had obtained prior environmental clearance. Later, the regulatory authorities granted environmental clearance to the illegal buildings after accepting an apology and an undertaking from the institution that it would not repeat such offences. Even Koodankulam Nuclear Power Plant Corporation received post facto environment clearance in 2013.

But the legal validity of this clearance still remains in question considering the fact that post fact clearances are considered ultra vires by the National Green Tribunal.

Exclusion of Projects From Prior Environmental Clearance

As already stated, forty projects were exempted from getting prior environmental clearance (EC) or environmental permission (EP). Sand deposits removal from agricultural field and community works are done away with prior EP or EC. According to the new draft construction of buildings below 150000 square meters (size of a small airport or stadium) do not require environmental clearance. The Centre for Science and Environment states that the construction boom in India will make the cities unfit to live due to large amount carbon emission, waste generation and water effluents which pollute the environment.

Exempting such projects from the environment will have a deleterious effect on the environment.

Moreover, the validity period of environmental clearance has been increased for mining, river valley and other projects and this section does not sync with the object of the notification or the parent act. Mining projects are extremely hazardous and can cause destruction if not properly supervised. Increasing the validity of EC for all the projects will not protect the environment.

All this gives rise to the question: “Does this provision reduce the burden on authorities and business or on environment?”

Further, public participation is the cornerstone of EIA process. But several projects were exempted from public consultations. Among other projects, highways and building construction are also excluded. The report of Centre for Science and Environment states that the building construction sector causes pollution in cities and one of the major reason behind it is “lack of information”. There are barely any details or particulars with respect to this in public domain and there is absence of public involvement.

Monitoring Mechanism – Post Approval

The draft contains a provision for both cases of violation and non-compliance reported by the project proponent or the government authority. The draft notification did not enable the public to submit such reports of non-compliance and violation. The provision of post facto clearance divulges the fact that the authorities are remiss in monitoring the industrial units as to whether they have EC or whether they comply with the safeguards. It is not possible to identify every illegal industry, but it can be carried out to a certain extent that it will not have a hazardous impact on the environment.

It is mandatory for the project proponent to submit compliance report once every year. This provision will reduce the responsibility on the officials. On the other hand, it gives an opportunity to the industrial units to violate the regulations and safeguards. But at present, the report should be submitted twice every year.

Nevertheless, in reality the violations by the industries are overlooked by the authorities.

Going Against Established Principles

The present draft EIA Notification goes against the concept of polluter pays principle, sustainable environment and precautionary principles established by the court. India is a social welfare state as embodied in the Directive Principles of State Policy. It is quite essential to strike a balance between economic development and environment.

It was reiterated by the Supreme Court that protection of environment would supersede economic development. Any rules or regulation should not be made against the public interest.

There are people out there who are the main stakeholders of the development projects and do not have any idea or information about the draft EIA 2020. As a citizen of India, we all have the right to be a part of the decision-making process as enshrined in Article 21 of the Constitution of India. Let’s all raise our voices against the draft, as we all owe it to our environment.

You can send your suggestions and objections before 11 August 2020 to Secretary, Ministry of Environment, Forest and Climate Change or you can send an email to [e-mail].

(Sara Suresh is a fourth year student  of Symbiosis Law School, Pune pursuing B.A.,LL.B (Hons). This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)