Environmental Impact Assessment (EIA) is a mandatory internationally recognized process through which the regulatory authorities evaluate, examine and predict the environmental impact that various developmental projects would entail considering human-health, socio-economic, and cultural effects and then accordingly grant/reject the Environmental Clearance (EC). This process aims to mitigate the adverse effects on natural resources and tries to balance sustainable development with economic growth. It encourages community involvement furthering the goal of achieving an ecologically sound project. This paper will present a comparative analysis of the pitfalls of the Indian EIA Draft, 2020 with the corresponding provisions of the Canadian IAA, 2019.
ENVIRONMENTAL IMPACT ASSESSMENT DRAFT, 2020 (INDIA)
India’s topmost priority has always been economic development, however, while trying to achieve that, there has been a resultant compromise on the ecological front. India’s position has fallen significantly on the Environmental Performance Index 2020 (EPI), being 168th/180 and it has been declared the fifth most vulnerable country to climate change by the Global Climate Risk Index 2020. Amid this, the Ministry of Environment, Forest and Climate Change (MoEFCC) released the Draft Environmental Impact Assessment (EIA) Notification, 2020. EC is mandatory under section 3 of the Environmental Protection Act, 1986 via EIA. The last EIA draft was notified in 2006. The recent EIA draft 2020 has been severely criticized because it considerably disregards the safeguards present in local regulations, international conventions, and obligations, and dilutes environment protection. Under the garb of making the EIA “more transparent and expedient” and promoting “ease of doing business”, the government essentially withers the environment rigour.
IMPACT ASSESSMENT ACT, 2019 (CANADA)
Recently, in 2019, Canada enforced the Impact Assessment Act (IAA) introducing a set of new regulations. This Act replaced the Canadian Environmental Assessment Act, 2012. This Act lays down the procedure, timelines, factors, compliance, and participation mechanisms of impact assessment. Canada ranked 12th in the EPI 2020 and is extremely passionate towards environment protection and is committed to fostering sustainability.
CATEGORISATION OF PROJECTS AND EX-POST FACTO CLEARANCE UNDER EIA
EIA Draft categorises projects as A, B1 and B2 on the basis of their “potential social and environmental impacts and spatial extent of these impacts.” Projects falling under category A undergo an extensive assessment procedure while B2 projects are less cumbersome and exempt from the stages of screening, scoping, public hearing, appraisal, and can proceed with a “prior environment permission.” Admittedly, there are activities that do not require the same level of scrutiny, however, the draft recategorized many industries that initially fell under category A, and included them under B2. For instance, irrigation projects, LNG Terminals, metallurgical industries, are now B1 and B2. Also, it permits post-facto clearances (EC can be provided even if the project functioning has already begun) and exempts forty industries from obtaining a prior EC before beginning their operations. The Supreme Court held in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati that screening, scoping, public hearing, and appraisal are essential to consider while examining the impacts of industrial activities. Allowing an ex-post facto clearance would condone the industrial operations without an EC and in the absence of which there would be no regulations to safeguard the environment which goes against the parent statute. In Common Cause v Union of India (2017), the Supreme Court had held that “the concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence including EIA 1994 and EIA 2006.”
CATEGORISATION OF PROJECTS AND DECISION STATEMENT UNDER IAA
The IAA includes all designated projects within federal jurisdiction having the highest possibility to adversely affect the environment under a Project List and are subject to federal impact assessments The list comprehensively covers mostly all the sectors; renewable energy, oil and gas, mining, marine and freshwater, nuclear, linear and transportation, hazardous waste, federal lands and other protected areas(more projects have been added and projects are more prone to trigger an assessment than they were before due to the expansion in scope). The Minister of Environment and Climate Change has a discretionary authority to designate any project that is not contained in the List under the scrutiny of the assessment if he deems it to be harmful to the environment or public interest. Even the projects that are not designated cannot be carried out in federal lands unless the appropriate authority decides that the concerned project will not create adverse effects or if it does then whether the effects are justified in the given circumstances. The impact assessment comprises of five phases; planning (introduces a project to the assessment and involves development of various documents that entails detailed information, summary of issues with respect to the project and how the proponent would address them and provides engagement opportunities) , impact statement (the proponent submits a report outlining and evaluating the potential environmental impacts of the designated project), impact assessment (the IAA Agency prepares a report outlining and evaluating the potential environmental impacts of the designated project), decision-making(the Minister or Governor-in-Council make a decision taking public interest and the impact assessment report prepared by the Agency and the Review Panel into account), and post decision (educates, monitors and facilitates compliance and enforcement of the Decision Statement and the IAA through a follow-up program and activities).
COMPARITIVE ANALYSIS OF PROJECT CATEGORISATION AND CLEARANCE OF INDIA WITH CANADA
None of the proponents in Canada can give effect to their projects on their own without prior approval from the concerned authorities. It does not even recognise a concept of ex-post facto clearance. All projects need not go through the assessment, but all the projects do need to go through the ascertainment whether an impact assessment is required at all. It takes both environmental effects and public interest into account while designating a project and issuing the decision statement. In contrast, the classifications of projects under the Indian law has been arbitrary which should have actually been evidence-based. Industries could now develop projects in environmentally sensitive ecosystems which could harm the biodiversity, deplete natural resources and there would be no regulations or proper baseline studies to oversee the safety of the operations or rather mitigate the risks. This regularises the unlawful activities and approves the irreversible environmental degradation caused by these projects, pre-empting the chance of rejection since the operations have already begun. It goes against the environmental jurisprudence as well as the precautionary principle and defeats the whole purpose of EIA, i.e. to test the soundness of a project. The ex-post facto clearance turns the entire logic of EIA on its head and therefore, should be done away with.
COMMUNITY ENGAGEMENT UNDER EIA
The main participants of the EIA are project players, environmental consultant that prepares the EIA report on behalf of the proponent, Pollution Control Board, public, Impact Assessment Agency of India, and the Regional centre of MoEFCC. The draft restricts the scope for community engagement. It eliminates the mandate of public consultation by reclassifying projects as B2 (they are exempt from public hearing). Moreover, if any project is determined to be strategic by the Central Government, it will be exempted from any public involvement. Rationally, all developmental projects are strategic in nature and such vague phrasing could be widely misused and misinterpreted to forestall any public dissent. The notice period of public hearing is reduced from 30 to 20 days for projects that attract public participation. In addition, where the present framework entails continuous accountability of institutions and actors by allowing any person to take cognizance and report the violations of EC conditions, the proposed draft limits the registration of complaints only to regulatory bodies, or the proponent itself. Logically, why would environment violators on their own come before the NGT to report their offence.
COMMUNITY ENGAGEMENT UNDER IAA
The preamble of IAA incorporates the importance of public awareness and meaningful public participation for strengthening the credibility and quality of the project’s review. The participants in the IAA procedure comprise of the project proponent, IAA Agency of Canada, Review Panel, The Minister, Governor-in-Council, indigenous groups, public, Federal jurisdictions, and other jurisdictions. The IAA warrants the early involvement of the public, recognises indigenous groups, their sustained contribution throughout the process (s.11 and s.27) and under s.22(1) mandates the assessments to account for their rights. It begins before the formal assessment begins, during the planning phase which extends to 180 days. It provides for a Public Participation Plan, which reflects the public opinions, objectives, opportunities, and techniques of engagement at each phase that adhere to the needs of the community. Moreover, motivates greater involvement through the participation funding program and creation of Indigenous Advisory Committee. It allows for key concerns to be discerned and relayed to the project proponent. Throughout the process, the Agency or the Review Panel will keep the public and indigenous group involved in the assessment within legislated and consultation timelines. Their inputs are documented in a report and becomes a public record which is considered by the Minister while issuing the Decision Statement. The public, indigenous communities, NGO’s, federal authorities, another jurisdiction, and the project proponent have the right to raise a designation request to include a project under the Projects List. Also under s.141 of the IAA, any person who has the knowledge of the commission or any future likelihood of a commission of an offence can report the matter or the information to an enforcement officer or the Agency and the identity of such a person would be kept confidential if requested. This Act also extends protection to whistle-blowers who voluntarily report offences to federal officers.
TAKEAWAY FOR INDIA
A robust public participation is required to ensure that all the grievances of various stakeholders are disclosed bringing critical environmental issues forward. Under the draft notification, public consultation has been reduced to a mere formality and it has lost its effective meaning. India, like the IAA, could set up Advisory Councils that voice the opinions of the public and indigenous groups because owing to the huge Indian population it would be chaotic if everybody were to voice their opinions individually. For this, the period of twenty days must be increased significantly for effective and efficient interaction to take place. Victims who might suffer a loss of livelihood because of environmental degradation should not be treated as anti-developmentalists for seeking justice. Access to a clean and healthy living environment is a right in rem and it affects everybody. Any person or organisation must be allowed file a suit before the NGT or at least be able to inform the authorities to take cognizance of any environmental contravention or likelihood of future contravention. The legislation in return should be able to provide protection to such individuals who come forward with the complaints. This would make the EIA wide reaching and inclusive like the IAA.
COMPLIANCE AND ENFORCEMENT UNDER EIA
Further, the 2020 draft has diluted the post-clearance monitoring by allowing the submission of the EIA Compliance Report annually rather than bi-annually as contained in the present framework. It was already a challenge to get the developers to submit the reports and this added leniency would just further reduce the responsibility of the authorities and might aggravate the violations. It also extends the minimum threshold limit for obtaining EC of construction activities to 1,50,000 sq. m from 20,000 sq. m. which is a huge increase. It will encourage more construction projects that contribute to the emission of greenhouse gases and cause detriment since it is exempt from the regulatory process. Furthermore, the penalty fee has been reduced for non-compliance with the law.
COMPLIANCE AND ENFORCEMENT UNDER IAA
After the issuance of the Decision Statement, the Agency will be responsible for promoting and monitoring compliance with the decision statement and the provisions of the IAA under s.155(f). They share information with the proponent that would support their compliance. They have the ability to establish Environmental Monitoring Committees, designate enforcement officers and analysts to secure compliance and issue orders in case of non-compliance under s.120. They can carry out various activities, for instance, annual inspection plan, on-site inspections, investigate suspected contravention to keep a check on project proponents as provided under s.122. Also, they can compel compliance through court orders, imposition of penalties. The penalty for committing an offence under IAA is extremely exorbitant.
TAKEAWAY FOR INDIA
The draft is extremely pro-industry and anti-environment if one literally interprets it. It provides an opportunity for giant businesses to get away with breaching the law without any accountability and increases red-tapism and corruption. Making the cost of non-compliance less than the cost of compliance, i.e. a 20,000 crore project like hydropower is only supposed to pay a Rs. 5000 fine/- per day, is awarding the environment violators (against the polluter pays principle). Industrialists would be free to undertake projects as and when they like because there would be no fear of the consequences of contravening the environmental laws. Unless the compliance and enforcement mechanism is stringent, the environmental violations will not be deterred. India could borrow from the IAA to set up monitoring committees and enforcement officers that could take surprise onsite inspections, compel the proponents to submit quarterly reports on their compliance with the laws. Such mechanisms would keep the project proponents in check, and they would think twice before undertaking any activity which would adversely harm the environment.
The MoEFCC needs to recognise the major shortcomings of the EIA draft and fill in the lacuna by taking guidance from foreign legislations that are placed at a higher rank in the EPI 2020 like that of Canada. It could conduct research to discern what has worked well for these countries and incorporate it in its own legislation. India is a party to various multilateral environmental agreements, Stockholm Convention, Rio Declaration on Environment and Development; inter alia. The International Environmental Jurisprudence has shaped India’s own jurisprudence. The implementation of various statutes; Water (Prevention and Control of Pollution) Act, 1974; Air (Prevention and Control of Pollution) Act, 1981, the EPA and, recognition of EIA, Precautionary principle, Polluter pays principle, Public Trust doctrine, public participation became an indispensable part of the environmental law. The EIA Draft 2020 would destroy the entire evolution of the Indian environmental jurisprudence and bring it back to square one.
ABOUT THE AUTHOR
Nandini is a fourth-year law student pursuing B.B.A., LL.B. (Hons.) at Jindal Global Law School. She has a keen interest in Corporate Law and Competition Law. An avid traveler who loves to experience different cultures. She is a big foodie at heart. She can officially be contacted here.
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