By Aryan Bhat
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In March 2020, the Union Ministry of Environment, Forest and Climate Change issued its Environment Impact Assessment (EIA) notification which would be in supersession of the earlier such notification issued in 2006 and is currently in force. The 2020 notification was made available for public feedback after which the notification would become legally binding once the final version of the same is published in the Gazette of India. The deadline for the public feedback was initially set at May 30 by the ministry but a Delhi HC ruling extended the deadline for the same till August 11,2020. The proposals mentioned in the draft notification apparently haven’t gone down well with the civil society as environmental NGOs, activists, lawyers and even politicians voiced strong objections to them.
This article explains what an Environmental Impact Assessment is and why the draft notification of 2020 has been so widely condemned.
Q. What is an EIA?
In 1986, Indian Parliament passed the Environment Protection Act, 1986 to honor its commitment made in the Stockholm Conference(1972) to take steps to protect and improve the human environment. The EIA notification was first issued in 1994 by the Ministry of Environment in exercise of powers vested under section 3(2)(v) of the Act. The notification prescribes the various norms and safeguards which are required to be fulfilled to undertake projects in environmentally sensitive areas.
An Environment Impact Assessment, therefore is the process which rigorously evaluates and anticipates the possible consequences a certain project would have upon the environment and also the local population. Upon such a study, the EIA report is prepared by the project proponent along with a govt-listed Accredited Consultant Organisation (ACO) which also suggests possible mitigation strategies ,is then sent to the Expert Appraisal Committee for the appraisal process upon whose recommendations the concerned Regulatory Authority takes the final call to grant an Environmental Clearance . A flowchart of the EIA process is attached below:
Source: Centre for Science and Environment
Q. What is controversial about the Draft EIA Notification, 2020?
The underlying rationale of an Environment Impact Assessment (EIA) is to balance economic growth and infrastructure development with ecological balance and environmental sustainability. Projects shall also not threaten the livelihood of the local population which would face the direct brunt of them. However, it is being contended that the draft notification proposes to dilute many of the procedural safeguards and community involvement which the Environment Protection Act actually envisages.
It provides immense relaxation of the norms which the industry is bound by, which reduces paperwork and legal hassles and contributes to the ease of doing business but ignores the environmental and social concerns associated with such capital-intensive projects . Such a compromise with the environmental soundness of a project can prove fatal, as was observed in the Bhopal Gas Tragedy (1984) and the recent Vishakapatnam gas leak incident in May 2020 as well. Most prominent of the objections pointed out by the civil society are:
·
Post
facto Environmental Clearance: Clause 26 of the impugned notification lists at
least 40 industries that would be exempt from any formality of obtaining prior
Environmental Clearance. The impugned clause substantially alters the
Environment Impact Assessment Process as it allows project proponents to seek
the Environmental Clearance after the project is completed and commences its
operations. This is inherently problematic as it makes the entire requirement
of filing an Environment Impact Assessment report a choice rather than a
compulsion. Also, the notification nowhere prescribes a timeframe within which
the company shall seek Environmental Clearance. Hence, the assessment as to how
a certain project may adversely impact the surrounding environment and
suggesting mitigation strategies can be conveniently bypassed. In May 2020, the
Vishakapatnam gas leak occurred due to such failure of the plant to obtain the requisite clearance.
·
Violator-friendly:
As per clause 22 of the notification, Violations of any environmental standard
or norms can be reported either suo moto by the project proponent
himself or by any Government Authority or Appraisal Committee or any Regulatory
Authority. The public at large, such as the locals affected by the project,
environmentalists, activists and NGOs cannot lodge any complaint against such
projects under the draft notification. This would be a serious obstacle to
environmental activism in India and further strengthens the power asymmetry
that exists between the general public and the corporates in such disputes to
the latters’ advantage.
·
Whittling
down of public consultations: The draft notification reduces the days for
public hearing of the draft EIA report prepared by the project proponent along
with the ACO to only twenty days from the earlier period of thirty days. This
is when it was already pointed out that even the earlier period of thirty days
provided was too insufficient for the public to share their concerns. Moreover, under
clause 14(2), public consultations would not be held for Border Areas, defined
as area upto 100 km away from the Line of Actual Control(LAC)- which includes a
major portion of the environmentally fragile Northeast with a large tribal population. Also, this
requirement has been scrapped for projects involving defence, national security
and other “strategic” matters decided by the Central Government. The word
“strategic”, however is not only subjective but also of a very broad import
which makes it easy to misuse by the Central Government.
Hence, the notification it is being widely perceived that the notification is not in consonance with the concept of sustainable development. It weakens the existing environmental safeguards to ascertain that any project doesn’t spell any adverse consequences for the natural and human environment. Therefore, this notification, if enforced could be violative of not only India’s environment protection laws but also its international obligations under many international conventions such as the Paris Climate Change Conference of 2015 and the Kyoto Protocol.
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Aryan Bhat is a 2nd year law student at National Law University Delhi. A Potterhead, his other favourite authors in fiction include Khalid Hosseini, Jhumpa Lahiri and Ruta Septys. Besides fiction, he enjoys to read about political and social issues too. He plays chess as a leisure activity. While he is willing to explore any area of law, he finds himself particularly drawn towards Intellectual Property, Corporate Law and Criminal Law.
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