A Proposed DARKNESS: Draft EIA Notification, 2020

A Proposed DARKNESS: Draft EIA Notification, 2020

By Mohd. Shahid Khan

Introduction

The world has seen a ton of undesirable changes in the recent past. The explanation for these progressions is the ever-Increasing Human Pressure on Environment[i], In lieu of satisfying these demands we see a great number of plans, ventures and projects that the legislature embraces, however, the opposite side of this progression is dull and upsetting, i.e. the effect that these projects have on the environment that we live in. Plenty of measures are undertaken to check these effects and one such measure is Environmental Impact Assessment (hereinafter called as EIA). The United Nations Environment Programme defines EIA as: “Environmental Impact Assessment (EIA) as a tool used to identify the environmental, social and economic impacts of a project before decision-making. It aims to predict environmental impacts at an early stage in project planning and design, find ways and means to reduce adverse impacts, shape projects to suit the local environment and present the predictions and options to decision-makers.”[ii]

Simply put EIA is prerequisite process which aids in three ways: a) it tells about the impact that the project will have on the environment; b) it gives the probable course which can be opted to mitigate the negative impact and c) it also provides the procedure of post implementation monitoring. EIA gives an unblemished picture of the project in front of us.    

Historical Background and Evolution of EIA

Towards 1960s the major developmental projects undertaken were working on ‘Economic Evaluation Scheme’, under which the impact of the project was assessed only in economic terms and environmental impact of such project was not considered[iii], to tackle this problem EIA came into picture in early 1970. Countries had divided views on whether EIA should be accepted as a Compulsory Principle or Discretionary Principle. In 1969 National Environment Policy Act (NEPA) was implemented in the US, which acted as a precedent on EIA being accepted as Mandatory Principle. EIA gained popularity in 1989 when compliance with its principle was made mandatory by the World Bank for the requesting party.[iv] EIA principle saw the light of the day in 1992 at the Earth Summit, in which Rio Declaration mentioned that EIA must be done for the proposed projects which can impact the Environment adversely.[v]

In India EIA was implemented after Bhopal Gas Tragedy of 1984. Government of India came up with a legislation known as Environment (Protection) Act, 1986 (hereinafter called as 1986 Act) under Section 3 of the said act along with Rule 5 of the Environment (Protection) Rules, 1986 Ministry of Environment and Forest in 1994 floated the first EIA norms. Since then every development project is required to go through the EIA process in order to obtain Environmental Clearance (herein after referred as EC). The norms of 1994 were supplanted by a modified draft of 2006. Recently the government has rolled out EIA 2020 Draft notification[vi] (herein after referred as 2020 Notification).

EIA under the 2006 EIA Notification

EIA is the process of detecting, foreseeing, gauging and moderating effects of development proposals before major decisions being taken and commitments made. In India EIA works under the umbrella of 1986 Act and 2006 Notification. It works on the mechanism of EC. Basically it talks about three things; a new project, expansion or modification of the existing project and any change in product. The projects have been divided into two categories, Category A which comes under the central government and Category B which comes under State Environmental Impact Assessment Authority (SEIAA). The tasks are to be undertaken by committee at both the levels know as Expert Appraisal Committee (EAC) and State Expert Appraisal Committee (SEAC) respectively. To get EC one has to file application in accordance with the respective appendixes and forms.

Under the 2006 Notification a project needs to go through 4 stages: a) Screening b) Scoping c) Public Consultation and d) Appraisal.

·         Stage 1 (Screening): This stage only talks about Category B projects. It says that if a project is a category B project it will be sent to SEAC which will determine whether the project requires EIA. Further if the project requires EIA it shall be termed as B1 and if it does not require EIA it is named as B2.

·         Stage 2 (Scoping): In this stage Terms of Reference (TOR) are determined which addresses all the relevant environmental concerns for the preparation of EIA report. It is done at the Centre level for Category A projects and at the state level for Category B1 project. This affair is the responsibility of EAC and SEAC. Activities such as Construction, township, commercial complexes, and housing shall not undergo scoping. An application for Environmental Clearance may be rejected at this stage by the EAC or SEAC and reasons for the same are to be supplied to the applicant.

·         Stage 3 (Public Consultation): The opinions of people who are likely to be affected by the impacts of the project are taken into account. Not all projects of Category A and Category B1 are presented before the public. Public consultation is done in two ways: a) hearing at the site of the project and b) written response form the people who are likely to be affected by the project. The public hearing is conducted by State Pollution Control Board (SPCB) or the Union Territory Pollution Control Committee (UTPCC) and the report of the same is to be sent to the authorities in 45 days of the request made by applicant. In case of default in conducting the hearing, new agency will be appointed by the authorities and it will take another 45 days. Public hearing can also be cancelled if the SPCB or UTPCC finds it not feasible. All the concern raised is to be taken into account by the applicant while preparing the final report which is submitted to the authorities for appraisal.

·         Stage 4 (Appraisal): EAC or SEAC  scrutinizes the final report and then  send recommendations to the authorities as to whether they should grant EC or not and in latter case, with reasons as to why not, are specified This is done in form of proceeding and the applicant is given chance to present his contentions. The Appraisal is to be done within 60 days from the submission of final report by the applicant.

Post Environmental Clearance Monitoring

Project proponent of Category A project after receiving the EC will have to advertise the same firstly in two Local Newspapers of the district/state where the project is located and secondly on the website of the project. Things are little different for Category B projects, as the management of Category B projects will have to publish the EC granted in the Newspaper and details of the concerned authority’s website which granted the EC. Apart from the project management, the concerned granting authority will also have to place the EC granted on the government portal. Half yearly compliance reports, this report is submitted to the concerned authority on 1^st June and 31^st December every year.

Draft EIA, 2020 Notification v. 2006 EIA Notification

Ministry of Environment, Forest and Climate Change (herein after referred as MoEF&CC) in March, 2020 rolled out 2020 Notification to amend the above discussed 2006 Notification. A lot of changes have been proposed by MoEF&CC which ultimately dilutes several environmental regulations (including EIA) necessary for protecting the environment. Existing 2006 Notification was decent enough to protect the environment, MoEF&CC was expected to deal with the lacunas of the 2006 Notification and make it better, but the opposite has been done.

Following are the Major Divisive clauses of the 2020, Notification:

1.      Post Facto Clearance:  Simply put there are projects which are functioning without prior EC and efforts were made that they should get the EC at their current functioning stage. It has been seen in the past that these projects are the most significant violators of Environmental Legalisations in place. Clause 22 of the 2020 Notification allows post facto Clearance to the projects which are functioning without EC. Clause 22 is against the very basic notion of EIA which is prior Impact Assessment. This clause won’t hold water because recently the Hon’ble Supreme Court in the case of Alembic Pharma Ltd. V. Rohit Prajapati and Ors.[vii]  observed that post facto clearance is against Precautionary Principle and it cannot be allowed and held that :

“Ex Post Facto clearance or retrospective EC is a process which is in derogation of fundamental principles of environmental law in general and EIA in particular. Normal process of EC involves various stages where decisions are made with respect to whether or not the EC should be given, but in Ex Post Facto clearance nothing is followed which leads to irreparable degradation of environment”.

The effect of allowing post facto clearance is devastating. For example: Dehing- Patkai which is known as the Amazon of the East in Assam was being destroyed by illegal coal mining for several years by Coal India.[viii] Ultimately they got mining clearance but with various conditions, which were to be fulfilled, but now if post facto clearance is allowed the certain restrictions will be diluted. Another very good example is the recent LG Polymer Gas Leak case[ix] of Vizag, where the company was functioning without clearances and a huge gas leak happened, and allowing post facto clearance will make such companies complacent and ultimately negligent  because of no check in place. This was not the case under the 2006 Notification.

2.      Lesser role of Public: Under the 2006 Notification the time given to public for response on the report submitted was 30 days but under the 2020 Notification it has been reduced to 20 days which is extremely unfair because the reports are so complex that it is tough for common public to study, evaluate and respond in such short period of time. Hon’ble Delhi High Court in the case of Utkarsh Mandal v. UOI[x] held that giving EIA report 9 days prior to public hearing is ‘mere mockery of Public Hearing Option’; therefore the reduced time limit is not in favour of the people who are residing near the project. The Notification mentions that in case physical hearing at the site of the project is not possible then it can be conducted in the form of Video Conferences. This clause is just not practical because most of these project sites are in villages and population there is not well acquainted with the internet facilities, instead of Video Conference as an alternate a common place of convenience should be chosen which is easily accessible by the villagers as well as the government officials.

The 2020 Notification has introduced 4 slabs with respect to the requirement to be fulfilled by projects which seek modernization or expansion.

Category A & B1 projects seeking expansion/modernization with a capacity up to 50% are exempted from Public Hearing. It is not taken into consideration that whether the projects falling under the said limits have followed EC norms in the past or not, this is of utmost importance because if they are not doing what they are supposed to do then they should not be permitted to expand/modernize their project. The 2020 Notification under Item 42 of the Schedule exempts construction projects up to the limit of 150,000 Sq.m from undergoing EIA, under the 2006 Notification this limit was 20,000 Sq.m.

Clause 5 (7) says that if the project is considered as Strategic, then no information about the same will be available in the public, no objective criteria is given to decide the project as being strategic.

Under clause 26 of the Draft 2020 EIA Notification there are 40 industries which are given automatic exemptions and again no reason or criteria as such is mentioned as to why they have been exempted. It includes projects such as Irrigation, widening of National Highways etc. Though under the 2006 Notification also projects were exempted but number was much less.

3.     Diluted Post Clearance Mechanism: Under the 2006 Notification the project management was required to submit half yearly compliance report to the concerned authorities. Under Draft 2020 EIA Notification project management is required to prepare compliance report proactively sharing the status of compliance once in a year and the process is to be monitored by MoEF&CC and State Pollution Control Board (SPCB). The Communities affected by the project are not given any rights of monitoring and reporting.

4.    Impoverishing existing institutions in the appraisal process: Under the 2006 Notification the power to appoint the members of SEIAAs was in the hands of state government, but the Draft 2020 EIA Notification makes reference to that in the event of default in opportune arrangement of such part by the State Government, the Central Government will do likewise,  this power given to Central Government is hitting on state government’s power related to appraisal process, which is at ultimately debilitating entire appraisal process. Further the task of screening under which SEIAA bifurcated projects into Category B1 and B2 is removed which is a great blow because now it has become more Central Government Centric.

Before 2020 Notification various efforts were made by the executive to dilute the 2006 Notification because it had lot of requirements which were to be fulfilled before on can get an EC.  On 3^rd July, 2009 the Ministry of Environment and Forest constituted a committee under Shri J.M. Mauskar to inspect Draft Amendments to 2006 Notification and while examining one of the proposed amendment of increasing the Construction limit from 20,000 Sq.m. to 50,000 Sq.m. said that: “If suddenly the limit is raised from 20000 Sq.m. to 50000 Sq.m. all these environmental awareness developed amongst the professionals in last two years will evaporate in no time.”[xi] The executive was not satisfied with such a report and established another committee for the same purpose under Dr. K. Kasturirangan and this committee in its report agreed with all what was said and observed by the previous committee. Suddenly after few years in 2016 on 9^th December, 2016, MoEF&CC issued a Gazetted Notification adulterating the provisions of 2006 Notification. The matter was then taken to NGT and the then Chairperson of NGT Justice Swatanter Kumar in Para 22 said that the notification cannot be sustained and observed that: “The draft amendment of the existing environmental laws should be done with least impact on environment protection that was available under the existing law or regime.”[xii] The executive did not stop here, a new notification was issued in 2018 and it was challenged in Hon’ble Delhi HC which was pending in the meanwhile they came up with 2020 Notification which as discussed above is violative in every aspect and hence cannot be implemented.

Conclusion

Right to Clear, Healthy and pollution free Environment is now considered to be a part of Right to Life under Article 21 of the Constitution of India[xiii], EIA is a process which ensures that people enjoy this right peacefully. As discussed above 2006 Notification though had some fallacies but in totality was a good law and was praised by Hon’ble Supreme Court on various instances. On the other hand Draft 2020 EIA Notification is a bad Law and if implemented will turn out to be a disaster. As of now things are not completely out of hand few changes if made to the said notification will make it workable, to name a few: i) the post facto clearance is against the very basic norm of EIA and therefore it should not be allowed and even if it is to be allowed, only such projects should be allowed which have up to the mark track record in terms of less pollution, safety measures, proper licences etc. ii) People living in the close proximity of projects are effected the most, the reduced public response time under Draft 2020 EIA Notification should be removed and the status quo with respect to 2006 Notification should be maintained, also the ministry  should work on how can they provide access to information to the people who do not have access because of being in village or remote areas and are likely to be effected by the project. Draft 2020 EIA Notification is not only in conflict with the precautionary principle and the sustainable development principle, but it is also in direct contravention of the principles of EIA; therefore the ministry should withdraw the same and come back with a proper draft.

i.            Johan P Mackenbach, Global environmental change and human health: a public health research agenda, NCBI (Aug. 26^th, 2020, 02:20 AM) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2465640/.

ii.            Hussein Abaza, Environmental Impact Assessment and Strategic Environmental Assessment: Towards an Integrated Approach, UNEP (July 31st, 2020, 01:30 AM), https://unep.ch/etu/publications/textONUBr.pdf.

iii.            Sadler B., Environmental Assessment in a Changing World: Evaluating Practice to Improve Performance. (Canadian Environmental Assessment Agency & International Association for Impact Assessment 1996).

iv.            Jose O. Castaneda, the World Bank Adopts Environmental Impact Assessments, 4 Pace Y.B. Int’l L. 241 (1992) (July 31st , 2020, 01:42 AM), https://digitalcommons.pace.edu/pilr/vol4/iss1/10.

v.            UN Commission on Human Rights, Human rights and the environment, 9 March 1994, E/CN.4/RES/1994/65, (Aug. 29th, 2020, 05:54 PM), https://www.cbd.int/doc/ref/rio-declaration.shtml.

vi.            Draft EIA Notification, 2020, Ministry OF ENVIRONMENT, FOREST AND CLIMATE CHANGE (July 31st, 2020, 2:45 AM), http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf.

vii.            Civil Appeal No. 1526 of 2016.

viii.            Tora Agarwala, Assam orders judicial probe into illegal coal mining in Dehing Patkai, INDIAN EXPRESS (Aug. 26, 2020, 01:20 AM), https://www.google.com/amp/s/indianexpress.com/article/north-east india/assam/assam-orders-one-man-inquiry-committee-to-investigate-illegal-coal-mining-in-dehing-patkai 6512349/lite/.

ix.            Original Application No. 73/ 2020.

x.            WP(C) No. 9340/2009.

xi.            Report of the Committee constituted under the Chairmanship of Shri J.M. Mauskar, Additional Secretary to examine the comments / suggestions on the Draft Amendments to EIA Notification, 2006, MINISTRY OF ENVIRONMENT & FORESTS GOVERNMENT OF INDIA ( Aug. 26, 2020, 01:50 AM), http://moef.gov.in/wp-content/uploads/2017/09/FinalReport_EIA.pdf.

xii.            OA No. 677/2016 (M.A. NO. 148/2017).

xiii.            Subhash Kumar v. State of Bihar 1991 AIR 420, 1991 SCR (1) 5.