EIA DRAFT NOTIFICATION 2020: A CRITICAL ANALYSIS

This article has been authored by Sahana Priya Satish, a fourth-year law student at Tamil Nadu National Law University, Tiruchirappalli.

Introduction

Environment Impact Assessment (EIA) refers to the process of assessing and regulating the effect of a proposed project on the environment. In India, the first Environment Impact Assessment Notification was issued in the year 1994 under the Environment (Protection) Act, 1986 according to which Environmental Clearance from the Central Government or the State Government had to be sought for the expansion and modernization of any activity or to begin a new project as listed in Schedule I of the notification. The notification also allowed for the public to put forth their objections to the proposed activity or project. The 1994 notification was superseded by a modified notification in 2006. The latest draft EIA notification was introduced by the Ministry of Environment, Forest and Climate Change in March 2020. This notification has drawn a lot of flak from all quarters since its release into the general public asking for objections and suggestions. This article will look into the purpose and significance of the EIA notification and will also discuss the problems that are present in the draft notification.

Importance of EIA

The United Nations Environment Programme has defined Environment Impact Assessment as “the process by which the consequences and effects of natural processes and human activities upon the environment are estimated, evaluated or predicted”. The EIA Process is a multi-step procedure which is carried out to ensure that all considerations regarding the environment form a part of the decisions relating to projects or activities which may have a significant impact on the environment. The main purpose behind conducting an Environment Impact Assessment is to inform the decision makers as well as the general public regarding the consequences that a proposed project might have on the environment.

The EIA process helps to identify possible alternatives and mitigation measures which may be put in place in order to reduce the environmental impact of a proposed project. This process is essential as it lays emphasis on transparency and public involvement. EIA also helps to ensure that the proposed development plan is environmentally sound and leaves sufficient room for the assimilation and regeneration of the ecosystem.

Problems with EIA Draft Notification 2020

The Central Government released a draft EIA notification in March 2020 which has raised a lot of concerns from various groups due to some of the problematic changes in the rules. The new rules allow for ex post facto clearance for the proposed projects which means that the cases in which the projects have started their work without obtaining Prior Environment Clearance and are deemed to be violation cases can obtain such clearance after beginning the work on the project. The entire purpose of conducting an EIA, which is to carefully analyse the ecological effect of a project on the environment before the commencement of such project, is defeated by granting of ex post facto environmental clearance as it allows for industries to seek retrospective clearance without any harsh penalties. The Supreme Court, in the case of Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors., had also expressed a similar view and said that granting ex post facto clearance is ‘unsustainable in law’ and that it goes against the fundamental principles of environmental jurisprudence.

In the notification, Clause 26 excludes a long list of projects as falling outside the purview of an EIA and under Clause 14 a number of projects are also exempted from public consultation. Any project which is decided by the Central Government to involve a strategic consideration also forms a part of projects which are exempted from public consultation. The notification does not give any definition or indication of what such strategic considerations might entail.

The process of public consultation has also been exempted for the projects falling under the Category B2. This becomes evident by a comparison of the stages in the process of obtaining Environmental Clearance, as given in Clause 10, for projects under Category A or B1 as opposed to that for Category B2. For projects under Category A or B1, the stages include scoping, preparation of draft EIA, public consultation, preparation of final EIA, appraisal and finally, grant or rejection of prior Environmental Clearance. This process is severely circumvented when dealing with Category B2 as for projects under this category, the Environmental Clearance can be obtained in three steps namely, preparation of Environmental Management Plan Report, appraisal and grant or rejection of prior Environmental Clearance. The structure of Environmental Management Plan Report (Appendix-X) is not as thorough as the structure of EIA Report (Appendix-XI) which throws light on the ease with which corporation will be able to proceed with the projects falling under Category B2.

This becomes especially problematic as many of the projects which were previously put under Category A or were considered to be having potential for high pollution have been re-categorized and put under Category B2. The reason for such re-categorization has not been given in the draft notification. Even in cases where the original categorization has been retained, the threshold limits have been changed which will lead to certain projects falling out of categories in which EIA and public consultation is mandatory. The time period for receiving public response has also been drastically reduced from 30 days to 20 days (Appendix-I) and the time for completing the public hearing process has been reduced from 45 days to 40 days. Public consultation is a necessary step in the EIA process as it helps to maintain transparency and also provides an opportunity to the affected groups to voice their concerns. Removing this essential step from the process will cause severe hardships to people and also allow companies and corporations to carry out developmental activities unchecked.

The draft 2020 notification has significantly increased the period of validity of a prior Environment Clearance. For projects which are in their construction phase, under Clause 19 of the Notification, for river valley, nuclear power and irrigation projects the period has been increased from 10 years to 15 years, for mining projects the period has been increased from 30 years to 50 years and for all other projects the period has been increased from 5 years to 10 years. For projects which are in their operational phase, the validity of Environmental Clearance is perpetual except in case of mining projects. This increase in the period of validity may lead to situations where the corporations responsible for the developmental projects delay the initiation of the project which may in turn promote land grab.

Another negative aspect of the draft EIA Notification 2020 is that in respect of prior Environment Clearance, the project proponent is mandated to submit only a yearly Compliance Report as opposed to the half yearly submission requirement under the 2006 notification. This will lead to a reduced monitoring of developmental projects which might give way for irreversible environmental damage.

Voices Against EIA Draft Notification 2020

The precautionary principle, which is an important part of the Indian environmental jurisprudence as well as an essential part of the concept of sustainable development, seems to have been completely ignored in the draft notification. Recognising this shortcoming and the adverse impact that may result from the draft notification becoming final, various environment conservation groups, experts as well as aware citizens have actively involved themselves in voicing the problematic aspects of the 2020 notification. Their main contentions were that the draft notification significantly dilutes the scope of the EIA process thereby making it easier for industries to escape accountability. This led to the Delhi High Court extending the date to receive public opinion till 11th Aug 2020. This was followed by the Karnataka High Court restraining the Ministry of Environment, Forest and Climate Change from releasing the final notification till 7th September 2020 on the grounds that the draft had been released during the lockdown period which placed constraints on the citizens for filing objection, it had not been publicised in the vernacular languages and the objections had to be received in Hindi or English. The Court held that the right of citizens to file objection had been taken away due to these reasons.

Conclusion

The COVID-19 pandemic has taught us humans an important lesson in maintaining the intricate and delicate link between the natural world and the human society. Human development should not occur at the cost of damage to the environment as this well lead to a complete breakdown of the ecological balance. Keeping this is in mind, the Central Government specifically the Ministry of Forest, Environment and Climate Change, need to pay heed to the concerns of the various groups and work towards strengthening the EIA process in a way that the protection and conservation of the environment becomes the focal point while also working towards sustainable development.