Introducing Inquisitorial by Indianaut, a long-form newsletter where we explain and analyze important stories stemming out of the Indian entrepreneurial ecosystem & economy. New articles every Saturday & Sunday.
The conservation, protection and prevention of the environment we live in, has been enshrined within the Indian Constitution. And in the times we are living in, the increasing need for the improvement of human environment and to have a clean environment could not be emphasized more.
The process of Environmental Impact Assessment (EIA) has been one of parallel evolution, wherein, both the development of institutions to coordinate and monitor the environmental policies and procedures, go hand-in-hand with the formulation and implementation of the necessary legislation and regulations. According to the United Nations Environment Programme, EIA is primarily a tool that is used to identify the environmental, social and economic impacts of a project prior to decision-making.
While the history of EIA within the country dates back to 1994, wherein, the Parliament notified its first EIA norms, imposing certain restrictions and prohibition on undertaking some projects or expansion or modernization of such existing projects entailing capacity addition, in any part of India, the Central Government superseding the 2006 notification, published the modified draft notification namely, the EIA Notification, 2020 (dated 23rd March, 2020) in the official gazette on 11th April, 2020. However, within a short span of its release, the draft has been met with backlash from environmental activists all around the country, but fortunately for all the right reasons.
As stated above, an EIA Notification is issued in accordance with the Environment (Protection) Act, 1986, with a view to integrate environmental safeguards for minimum damage and mitigate the impact of large projects on the environment. Wherefore, the Ministry has provided that the modifications in the norms have been made to bring the process of EIA in line with the judicial pronouncements, the adverse impact that the new draft will have are colossal. As the proposed notification will only encourage environmental violations to continue, thereby putting the ecology at risk.
Issues Involved
To understand the issues that the modified notification presents, it is essential to primarily be acquainted with the process of EIA. Although a cumbersome and technical process, any project that requires an environmental clearance, first needs to undergo a screening and scoping process by the Regulatory Authority followed by a draft report that is sent for public consultation. A final EIA Report is prepared on receiving the public consultation, followed by an appraisal by the Expert Appraisal Committee in order to grant the environmental clearance.
Eased up process for projects under Category B2
Now, contrary to the previous regime, wherein, only the projects under the B2 category were exempted from the lengthy process, the EIA Notification, 2020 expands the number of projects under B2 Category and further omits prior screening requirement for such projects, meaning that, these projects will be exempted from requiring a Prior Environmental Clearance. Moreover, the draft notification also goes on to classify inland waterways as Category B2 project, which will not require public consultations irrespective of whether these projects are located in notified ecologically sensitive areas. The classification of projects such as thermal power, cement plants, metallurgical processes, and chemical fertilizer plants, etc., that axiomatically will have a detrimental impact on the environment, into B2 Category poses a serious question regarding the Ministry’s intention behind these modifications.
Reduction in Time frame
Further, the modified draft notification, also proposes to reduce the time period provided to conduct the public hearing from 30 days (as provided under the EIA Notification, 2006) to 20 days. Such a modification during the time of a pandemic only makes it difficult for the community to properly comprehend the contents of the EIA Report that is prepared in order to conduct such hearing. Moreover, pandemic or no pandemic, when conducting such public hearings anyway pose a challenge in areas with no proper connectivity, a modification prescribing reduction in the time frame, present a perplexing problem.
Dilution of the process of Public Consultation
Another violation that the Notification has proposed is diluting the process of public consultation, wherein, the same now can be conducted through any mode, thought appropriate by the Regulatory Authority or Appraisal Committee, thereby giving them complete discretion on such consultation. Moreover, the language of the draft is of such nature that mandates no requirement of public consultation for projects under Category A or B1, that are either new or expansion proposals or modernization with capacity increase of less than 50 percent. The Notification further provides a blanket clearance from public consultation to all projects concerning national defense and security or involving other strategic considerations as determined by the Central Government; linear projects such as pipelines and highways in border areas; offshore projects located beyond 12 nautical miles; and projects falling under the other items listed within the clause.Here, the terminology ‘strategic consideration’ being highly vague, comes with no proper explanation and in such a case can easily be used to exempt projects from needing public consultation. In addition to this, the draft also prescribes that project proponents themselves can engage private consultants for preparing the EIA Reports, making the entire process a mystery. These proposed modifications and the ambiguity they carry indubitably deviate from the foundation of the environment protection laws and frustrate the principle of participatory governance of the people.
Ex-post facto clearance of projects
As per the Hon’ble Supreme Court and the National Green Tribunal, grant of ex-post facto environmental clearance to projects operating without the same are contrary to law. However, the draft notification aims at providing post-facto approval to projects that started even before receiving an environmental clearance. A recent incident in May, 2020 of a gas leak at LG Polymers in the outskirts of Vishakhapatnam, led to the death of 12 people and 32 animals, along with causing health problems to hundreds of locals that survived. On further probe, it was discovered that the company needed a fresh permit after it had decided to expand production by including a new line of products and had been operating without an environmental clearance since 2017. The fact that the draft notification was issued a month prior to this incident and aims at providing clearance to such projects is baffling, and one cannot help but wonder if the Ministry is implying that merely because these projects are operating in areas permissible by law, they pose no threat.
What in case of violation?
The Notification also provides that in cases of violation, either the government can take cognizance by any report; or the Appraisal Committee by an appraisal; or the Regulatory Authority by the process of application. The draft even allows the project proponent to suo moto file an application, but makes no mention of letting the public make a complaint for violation of the provisions. Further, the Notification also provides that in case of a violation by a project proponent, he will only be liable to pay compensation as prescribed, and can go on to continue the operation of such project. Through plain reading, the clause obviously suggests that paying an amount as compensation is enough for the violation that has been caused and that irreparable damages caused by the project to the environment can be quantified in simple numbers. Such a modification will only guarantee continuous violation of the Environmental Laws, as instead of facing punishments for infringing the provisions of the parent Act, project proponents will easily get away by paying compensation.
To Sum Up
In addition to the global pandemic that the world together is facing today, the invasion of the Indian territory by swarms of locusts; the destruction caused by Cyclone Amphan in Eastern India and Cyclone Nisagra in Maharashtra; the monsoon floods in Bihar and Assam; and the chemical leak in Vishakhapatnam are just a few among the many incidents that have hit the nation this year alone.
(Draft EIA Notification 2020 could spell disaster for Western Ghats, say experts;
Credit: The Hindu)
Resultantly, consciously planned laws and their proper implementation for the preservation and protection of the ecosystem and our environment are needed now, more than ever. Absence of stringent environmental safeguards and most importantly, deplorable legislation and regulations like the EIA Notification, 2020 will only worsen the situation. Environmental laws strive to bring about a balance between development and environmental safe-keeping; however, if these are heedlessly enacted then all they will bring is incalculable harm to all living beings and the environment. Therefore, the newly drafted notification which are presently under the window of public feedback until August 11, 2020, are in violation of and not aligned with the purpose of the Environment Act, and shall be withdrawn.
Divyanshi Srivastava is a final year law student at Amity Law School, Delhi (GGS IP University). She has interned with law firms like Desai and Diwanji, ASAV Attorneys and also Law Commission of India.