On 23 March 2020, the Ministry of Environment, Forest and Climate Change (MoEFCC) issued the draft Environmental Impact Assessment (EIA) notification, 2020, which will replace the EIA notification of 2006.
The Ministry has sought comments from the public for the draft, and the deadline for this is 11 August 2020.
So, what is the EIA all about?
It is a process by which major industrial, mining, real estate or public infrastructure projects are scrutinized for their potential adverse environmental impact and negative externalities before they commence. Its purpose is to establish a legal framework for regulating industries who wish to access or utilise (and eventually pollute) natural resources.
Every major development project has to undergo an EIA and obtain environmental clearance from the government before any ground is broken. Depending on the assessment carried out, the project either proceeds as proposed, is modified or (rarely) scrapped altogether.
In a column for The Indian Express, Satyajit Sarna, a lawyer, writer and member of the Green Justice Party of India, presents a basic outline of what this process entails.
“The assessment is carried out by an Expert Appraisal Committee (EAC), which consists of scientists and project management experts. The EAC frames the scope of the EIA study and a preliminary report is prepared. That report is published, and a public consultation process takes place, where objections can be heard including from project-affected people. The EAC can then make a final appraisal of the project and forward that to the regulatory authority, which is the Ministry of Environment and Forests (MoEF). The regulatory authority is ordinarily obliged to accept the decision of the EAC,” he writes.
It was in 1994 when the first norms of the EIA were notified under the Environment (Protection) Act, 1986. This notification was replaced by another one in 2006, and the one issued in March earlier this year seeks to replace that to make the EIA process “more transparent and expedient”.
However, if you ask environmental activists and business leaders, particularly the former, they will let you know that the process of conducting the EIA has been lacklustre. Its core objective is to safeguard the environment, but they argue that little has been achieved on this front. They also argue that industries instead enjoy multiple de facto concessions.
For example, reports prepared by the EAC to assess any potential environmental damage of a given project comprises experts who merely ‘rubberstamp’ it for a fee and are rarely held accountable for their recommendations. Then there are concerns about the lack of state capacity to ensure industries comply with the conditions of the environmental clearance they receive. Also, activists believe that by passing regular amendments that exempt certain industries from necessary environmental checks, the government offers them easy escape routes.
Those on the side of industry, meanwhile, complain that the EIA process is tangled in a web of bureaucratic delays, red-tape and rent seeking, which negatively affects the viability of a project. Some sections, however, have welcomed the recent Draft notification.
“Any attempt at facilitating the ease of doing business is welcome, although we are still assessing the fine print of the recent Draft EIA notification. As project proponents we have faced various hurdles in seeking environmental clearances. There is, of course, the very high consulting charge, red-tapism and complicated application forms and conditions stipulated for obtaining environmental clearance. Under the current regime, barely 20% of all applications for environmental clearance get disposed off on time. Most applications take more than 180 days to clear and this creates viability issues,” says an executive of an infrastructure company, who wishes to remain anonymous.
With an economy that was already slowing down even before the pandemic, the government’s proponents claim that efforts are afoot to ensure these projects are cleared faster so that India can quickly get back on the horse of rapid economic growth it enjoyed before the 2010s.
But what about the environment?
“Anybody who knows how the current process works will understand that what India needs very badly today is a much improved and stronger EIA process. The EACs are full of rubber stamping ‘experts’ and what we need is a genuine public consultation process, independent people in the appraisal process, besides a very credible monitoring and compliance process,” says Himanshu Thakkar, an environmental activist and water expert, speaking to The Better India.
Although there are many concerns with the current draft, the two standout ones are the provisions for ex post-facto environmental clearances (after the project has already begun or completed) and further reducing the scope of public consultations.
Ex-post facto clearance
The issue of post-facto approval should not be viewed only through the lens of the environment. We should first look at it in terms of rule of law.
Are we willing to accept a post-facto position in all aspects of law? If a homeless person occupies a piece of land and builds a home, then going by this draft notification’s rationale the government should give post-facto approval. If a thief enters a bank, loots the money and after that is willing to part with a certain amount of money as compensation and damage, will you condone it and say from now on that the manager of the bank will be this person?
“What is problematic is not the precedent it sets for the environment, but for the overall rule of law. Originally, the EIA notification was based on the notion of evaluating the environmental impact before a project starts. If the new draft is finalised, the field is clear for industries to violate EIA norms first and seek clearance afterwards. The government is relying on the violators to disclose that they broke the law. What was understood as a one-time amnesty scheme for all projects that violated EIA notifications in 2017 to disclose that they had indeed done so and will go through a remediation process or a penalty process has been normalised,” says Ritwick Dutta, an environmental lawyer, speaking to TBI.
One can cite the example of LG Polymers in Visakhapatnam. A couple of years ago, it was among the several applicants for a post-facto environmental clearance. Its hearing was this May, but 10 days before the hearing the devastating gas leak incident occurred.
“How much do they have to pay from the start of the violation till the day they come voluntarily to disclose that ‘I have violated the law’? A project like a coal fired or hydropower power project is now supposed to pay Rs 5,000 per day for violation and Rs 1.5 lakh per month. All that a Rs 20,000 crore power plant is required to do is not follow the law, set up the project and pay Rs 5,000 as environmental damages per day. It’s an arbitrary exercise of power, giving rewards to people who violate the law,” notes Ritwick.
When the cost of compliance is much more than the cost of non-compliance then industries will see the benefit of non-compliance. At the end of the day, It’s not just about the environment, but a society governed by rule of law.
“Look at the Environmental Protection Act, Air Act and Water Act. These are laws passed by Parliament. These laws clearly state that if you violate them, you will go straight to jail. Now, the EIA notification is an act of the Executive and framed by bureaucrats. They are not the Parliament. The basic rule of law is that something enacted by Parliament cannot be merely written down by the executive. The law passed by Parliament states if you violate the law you go to jail. The executive now cannot say if you violate the law, I will make you pay a fine and set you free. The law does not provide for a Rs 5,000 fine,” he adds.
In fact, as per a 1 April 2020 Supreme Court order, the very notion of “ex post facto environmental clearances” is contrary to law.
“Environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development,” it said. The fundamental rationale behind an EIA is the “precautionary principle” which states environmental damage is often irreparable like an oil spill.
“What the new EIA draft proposes is further dilution of environment laws, which actually encourages violations. If violations occur, there is now a process to regularize it,” notes Himanshu.
Public Consultation or the lack thereof
What the draft also seeks to do is expand the list of projects that don’t require public consultations before receiving a prior environmental clearance allowing them to commence.
How does the notification define public consultation?
It “means the process by which the concerns of local affected persons and others, who have plausible stake in the environmental impact of the project, are ascertained with a view to appropriately take into account all such material concerns while designing the project,” notes the draft.
A bulk of the projects today do not require any public consultations or an EIA. Massive building and construction projects, for example, do not require public hearing. Railway projects, for example, are all excluded from the purview of both EIA and public hearings.
What you have within the scope of public hearings are a very small number of projects. The public consultation process involves both a hearing and the opportunity to give a written representation. What has happened in the new draft is essentially that any project “involving strategic considerations” are excluded from the purview of public hearings and consultations.
“Defence-related projects and those within 100 km of the border areas are anyway out of the purview of public consultations under the previous notification. But then if you have a vague new category of projects “involving other strategic considerations”, what all will come under it? How does the government define what is strategic? I’m at a loss to understand which project will not be termed as strategic. The issue here remains of absolute discretion that is conferred on the Central government to decide what is strategic or not,” notes Ritwick.
As per the existing law, the EIA report is made available 30 days in advance before the public hearing. Now that time period has been reduced to 20 days. Now, if you look at an EIA report, it’s a 1000 page document in English, which for an ordinary citizen, is difficult to understand. In any case, the EIA report cannot be merely understood by a person with expertise in one subject matter because the document looks at biodiversity, air pollution, water pollution and socio-economic considerations.
“What could be the purpose of reducing this time by 10 days? Only massive projects require EIA. If you’re making an airport or opening a mine, that is going to be there for at least 30 years. Construction will take five-six years. What great purpose is served by reducing the time by 10 days? If you’re talking of remote areas, how many people will get the document, understand it, meet among each other and discuss it? The government’s intention is not to allow the public to participate in the consultation process. In short, public hearings are discretionary, and where it’s conducted, it becomes a farcical exercise,” he adds.
Today, the law says that a public hearing must be held at a particular place chaired by the District Collector or his/her nominee. Every person in the venue must be given an opportunity to voice their concerns and they can present a written representation.
Under the new law, however, they can also conduct public hearings in any other mode.
“For example, currently, Maharashtra is holding public hearings through Zoom. How many people have access to it? Will they send a Zoom invite to all stakeholders? There is no way the general public can participate. Tomorrow, everything will be virtual and actual construction will take place that will impact people living in its vicinity. In reality, public hearings become a completely farcical exercise,” argues Ritwick.
In any case, how does public consultation happen? Who sits on these public consultations? The local district magistrate and pollution control board officials. These government officials are intimidating for the local village people. How many village people are willing to speak up against the Collector, who is their mai-baap?
Who is going to speak up against it saying ‘we don’t want this project’? There are few unless they’re well organised. Many wouldn’t dare to do it, but if everyone at the hearing says they don’t want the project, nothing happens. In fact, even such projects have gone forward.
“Developers use many tricks to nullify the public hearing process. When they see opposition on the ground against it, they fill up the public consultation process with their own people who are essentially outsiders. Locals don’t even have a chance to sit through these projects. This has happened in so many cases including for the Pancheshwar Dam in Uttarakhand back in 2017,” notes Himanshu.
It’s Not Development Versus Environment
With climate change a raging reality that even this government accepts, it’s virtually impossible to divorce environmental protection from the process of development. Economic development that does not take into consideration environmental concerns is doomed to fail. One cannot emphasise this any further. It’s a question of public health and safety as well.
On 27 May 2020, there was a massive fire that had erupted at an Oil India Limited (OIL) production well in Baghjan, Assam, which was an industrial accident of serious proportions caused by an uncontrollable leak of flammable natural gas. Over 1,600 families living in the vicinity of the blowout had to be evacuated. They are now in relief camps.
Earlier that month, OIL had received environmental clearance for drilling and testing at the Dibru Saikhowa National Park, which is just 2 km away from the accident site.
Without proper checks and safeguards in place, these accidents are bound to occur time and again.
“…Easing environmental norms will not boost economic growth. India is currently the fifth most vulnerable country to climate change. Since publishing the Draft EIA 2020 Notification, swarms of locusts have invaded the Indian subcontinent beginning April 2020 and will likely affect agricultural supply chains across seven states in India. Cyclone Amphan and Cyclone Nisarga caused widespread destruction in Eastern India and Maharashtra, respectively. All three events are a consequence of extreme weather conditions linked to climate change. India has already lost a third of its coastline, a third of its grasslands and is losing wetlands at the rate of 2-3% per year, thereby weakening our natural defenses to climate-borne disasters,” notes a column in the Observer Research Foundation.
“Development is not what industrialists or a project developer says it is. Development must mean a democratic and informed decision process including all stakeholders. This process of EIA should be considered sacred and strengthened more than what it is now. The EIA should not be considered an hindrance at all. In fact, demanding an EIA should be considered a democratic right of the people,” says Himanshu.
(Edited by Gayatri Mishra)
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