The EIA Draft Notification, 2020: A(nother) step towards the dilution of the environmental regulatory regime

Let he who would move the world, first complete an environmental impact assessment and a 90-day public comment period.

Environmental Impact Assessment is the process of identifying the likely environmental, social, economic, cultural, health-related impacts and risks associated with a proposed project, prior to actual groundwork being initiated for the same. The objective of this exercise is to align the design of the project with the needs of the surrounding environment, promoting a more sustainable form of development. The concept of EIA stems from the Precautionary Principle of Environmental Law, and is considered to be an outcome of the 1992 Rio Declaration, which emphasises the significance of involving the masses in the decision-making process concerning environmental issues.

The Indian experience with EIA dates back to 1976-77 when the Planning Commission asked the Department of Science and Technology to scrutinize river valley projects from an environmental perspective. Over time, the evolution of government approach has resulted in EIA Notifications being passed in 1994 and 2006, with multiple subsequent amendments.

The EIA Notification of 2006 is in force at present, and it mandates Environmental Clearance for an array of projects ranging from mining to thermal power plants, river valley, infrastructure such as road, highway, ports, harbours, and airports, and industries including very small electroplating or foundry units. The assessment for clearance is conducted by an Expert Appraisal Committee (EAC) which draws up the extent of the EIA study and prepares a preliminary report. Upon publication of this report, a public consultation takes place where the issues linked to the project and other related concerns are raised by the project-affected parties. The EAC takes all matters into account and makes a formal recommendation to the regulatory authority, which then takes the final call on whether the project can be executed in the proposed form or needs to be modified or given up on.

The Central Government, in exercise of its powers under the Environment (Protection) Act, 1986, issued a Draft Notification in March 2020 to replace and supersede the present 2006 Notification. Several amendments have been made to the rules in this notification, and it stands to potentially change India’s environmental regulatory regime. According to the government, this has been done with the objective of making the process more transparent, efficient, and orienting it with the recent judgements of the courts and the National Green Tribunal.

However, a reading of the Draft Notification unveils the true intent of circumventing the environmental protections provided secured by the judicial pronouncements and tribunal rulings, by altering and revising the regulations to the advantage of industries.

Key features of the Draft Notification, 2020

Enabling Post-Facto Approval:

The Draft Notification allows for Environmental Clearances to be granted to the projects which have begun construction and/ are working, even if the EIA clearance was never sought or given for the same. The provision condones such violations and simply imposes a fine, without any regard for the damage already caused to the environment. In light of previous rulings of the NGT, the Madras High Court, and the Supreme Court, striking down such post-facto approvals on the grounds of it being derogation of the fundamental principles of environmental jurisprudence, this draft provision is a clear legitimisation of a crime by simply levying a fine.

Undermining the Public Consultation Process:

The Draft Notification provides for a reduction in the time period, from 30 days to 20 days, for the affected people to respond to the project with their comments, views, suggestions. Further, numerous projects have been listed by the draft which are exempt from public hearings, such as modernisation of irrigation projects, all building, construction and area development projects, inland waterways, expansion or widening of national highways, all projects concerning national defence and security or involving “other strategic considerations” as determined by the central government, all linear projects like pipelines in border areas and all the off-shore projects located beyond the 12 nautical miles. The Public Consultation Process is an important component of environmental democracy, and belittling the same is detrimental to one and all in the long term.

Reducing Compliance Report requirements:

As per the 2006 Notification, the project proponents are required to submit a report bi-annually on their activities and whether they are in accordance with the terms on which EIA clearances have been granted to them. However, the 2020 Draft requires that the promoter shall submit such a compliance report only once in a year. Certain categories of projects have irreversible consequences on their surroundings, and this extended reporting time is potentially hazardous to all involved.

Bypassing the need for EIA:

The Draft Notification has given a virtual carte blanche the government by completely exempting all defence and national security projects, as well as other projects deemed “strategic” by the government from the need to obtain environmental clearances. Upon being categorised as “strategic” there will be no requirement for information on the project to be placed in the public domain. Any violations concerning such projects can only be reported suo moto by the project promoter/ government agency/ EAC/ any regulatory authority, which is a clear violation of the principles of natural justice.

Leeway to Construction and Mining Projects:

In July 2016, the government made an effort to remove the construction industry from the purview of the environment ministry by exempting all housing and construction projects between 20,000 and 150,000 sq. metres from the requirement of procuring environmental clearances, and placing them under the ambit of the local authorities. This was overruled by the NGT as a violation of the 2006 Notification. The Draft Notification 2020 places such projects under Category B2 which do not need a “detailed scrutiny” by the EAC, nor do they need an EIA Study or public consultation. Additionally, a mining project is now eligible to secure clearance for 50 years, as opposed to the original 30 years as per the 2006 Notification.

The Way Forward:

The Draft Notification 2020 is seen by many legal and public policy experts as a move in the direction of obliterating the very architecture of environmental protection in India by striking at one of its fundamental pillars, the Environmental Impact Assessment.

A massive effort has been launched against this draft notification, involving more than 50 university student unions, college environmental clubs, and other youth organizations from across the country, urging the Environment Ministry to put the notification on hold.

The time period for receiving public opinion with regards to the notification has been extended from May 11, 2020, to June 30, 2020, by the Ministry, following representations that the notification was issued during the lockdown which posed a difficulty in responding to the draft. A plea has been moved at the Delhi High Court seeking an additional extension of the time period till September 1 at the least.

In pursuit of the goal of improving the ease of doing business, there has been a marked devolution of environmental protections and an absolute disregard for the regulatory regime and institutional framework since the BJP-led government came to power in 2014. While our EODB ranking has improved from 142nd to 63rd, this has been at the cost of the environment. The prosperity of our future hinges on the efficient coalescence of environmental concerns with developmental activities, but steps like this draft notification are a setback we cannot afford.


ABOUT THE AUTHOR

Aishwarya Trivedi

IMGAT

Aishwarya Trivedi is a fifth-year student, pursuing B.Sc., LL.B. (Hons.) from Gujarat National Law University, Gandhinagar. Her interests lie in the intersection of research, policy and litigation with relation to the environment and human rights. She can be reached at aishwaryatrivedi6@gmail.com.

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