Former and current environment ministers Prakash Javadekar (left) and Bhupender Yadav. Photo: PTI and PIB
- When the ministry issued the draft EIA Notification in 2020, it changed the Environmental Protection Rules and extended the validity of all notifications thereunder.
- By this change, the draft EIA 2020 should have expired in April this year. But in June 2021, the environment ministry excluded the pandemic period from the validity period.
- This effectively extended the validity of the draft EIA notification to October 11, 2022.
- While the risk of the draft EIA 2020 becoming law is still quite real, the environment ministry has continued its tinkering spree.
- It has also continued the trend of sidestepping the people’s role in law and policymaking. And on both counts this time, the pace is quicker and the changes more severe.
Despite the strong opposition to the 2020 iteration of India’s environmental clearance law as well as its pending status, the Union environment ministry has been constantly making changes to the 2006 version.
During the COVID-19 lockdown in 2020, the environment ministry published the draft Environmental Impact Assessment (EIA) Notification. It was open for public comments for more than four months – longer than what the ministry usually allows – thanks to public resentment over the timing of its placement in the public domain and the lack of regional language versions.
We reported in May 2021 that until then, notification had undergone 33 alterations. The number of changes since then has touched 49. Overall, there have been no fewer than 80 changes since the notification was published (as of 8 pm on September 28).
Drawing from the environment protection Act and Rules of 1986, the EIA notification is a procedural law. It specifies a list of activities whose environmental impacts require appraisal, in a fixed set of steps, prior to their onset.
In March 2020, when the ministry issued the draft notification, it changed the environmental protection rules and extended the validity of all notifications issued under the Rules – from around 1.5 years to two from the date of publication in the gazette.
By this change, the draft EIA 2020 should have expired in April this year. But in June 2021, the environment ministry excluded the pandemic period from the two-year validity period of a draft notification. This effectively extended the validity of the draft EIA notification to October 11, 2022.
While the risk of the draft EIA 2020 becoming law is still quite real, the environment ministry has continued its tinkering spree. It has also continued the trend of sidestepping the people’s role in law and policymaking. And on both counts this time, the pace is quicker and the changes more severe.
The more contentious proposals of the draft notification, such as allowing post facto environmental clearances and removing the need for prior appraisal or public consultation for several kinds of activities, have been slipped in in piecemeal fashion – most of them through office memorandums.
Unlike draft notifications, office memorandums are issued without prior public notice. The ministry has used them to prescribe standard procedures and guidelines, which appear to be attempts at justifying the omission of crucial appraisal procedures.
Standard procedures replace environmental appraisal
Since June 2021, the environment ministry has published standard procedures and clarifications for various dilutions introduced earlier. The procedures either justify past dilutions or, often, mask further dilution.
For example, in its order laying out the procedure for project proponents to provide certified compliance reports to expand existing projects, the ministry allows self-certified compliance reports with an environment clearance not older than six months.
This “good faith” approach assumes project owners will respect their commitments to the people and the environment and abide by the conditions of the clearance. However, project proponents have a poor record of environmental compliance – although this hasn’t sufficed to shake the ministry’s faith.
We recently analysed 30 coal mine expansion projects and found that despite poor compliance, mining companies did receive environmental clearances.
The ministry also did away with the need for a clearance for expansion of airport terminals within the existing area; highways within 100 km of border areas; and ropeway projects. In these cases, the ministry has simply suggested that standard operating procedures be followed during construction.
Similarly, the draft building construction environment management Rules, which the ministry recently published, moves towards standardising compliance and having project proponents self-declare their efforts – and moves away from environmental scrutiny.
While the ministry has explicitly said that the Rules don’t substitute permissions or consent required under any other law, the draft EIA Notification 2020 indicates that a dilution for building construction might also be in offing. Specifically, the notification suggested no expert environmental appraisals for all construction projects of upto 20,000 sq. m and ‘green buildings’ of up to 150,000 sq. m.
We present below a compilation and analysis of all office memorandums published in this period.
Table: Analysis of office memorandums (OMs) issued since May 2021
(Office memorandums that reiterate certain procedures and reconstitute expert appraisal committees are not part of the count)
|Number of OMs
|-EAC to meet every 15 days
|-measurable monitorable EC conditions
|-EACs to ask questions that are ‘relevant’
|Procedures & clarifications
|-Ex-post facto clearance (2)
|-No increase in pollution load certificates
|-CTO after EC (2)
|-EC transfer when lessee of a mine changes
|-Approval of B2 projects
|-Surrender of EC
|-Issuance of standardised Terms of Reference for EC
|-PH exemption for coal mines
|-Validity of baseline data
|-Issuance of compliance reports
|-Project appraisal in critically/severely polluted areas
|-EC exemptions (9)
|-EC for paints include use of polymer
|-EC mine & cement plant are independent
-Transfer of projects from Centre to state and vice versa
-Extraction of ordinary earth for linear projects
|-PH exemption for 20% increase for non-coal mines
|-PH exemption for 50% increase for coal mines without increase in land area
|-PH exemption for 50% increase for all projects without increase in land area
|-Siting of Industries
|Uploading of documents, composition of EAC, etc
Authorities on a leash, industries on the loose
State environmental impact assessment authorities (SEIAAs) will now be scored on speed of decision-making. SEIAAs essentially assess and appraise the environmental impact of projects at the state-level.
Looking at the purpose of the Environmental Protection Act 1986, one might assume ranking SEIAAs would be a way to assess how well they assess and mitigate environmental impacts. Instead, the environment ministry has laid down a methodology to rank SEIAAs based on the speed of issuing clearances. SEIAAs taking fast decisions, asking for less additional information and not visiting project sites multiple times will score higher.
In October, the environment ministry similarly directed the expert appraisal committees to meet once a fortnight with “strict adherence”.
Ironically, while the ministry pushes SEIAAs and appraisal committees to clear projects faster, ‘development’ projects are allowed more time to complete construction and begin commencement. In all this time, the ministry has increased the duration of the validity of environment clearances from 10 to 13 years for river valley projects and from seven to 10 years for projects other than river-valley, mining and nuclear projects.
Environmental clearances are supposed to be given for a certain time period, on the assumption that environmental features, the living conditions of those being affected and the context change over time. So safeguards should account for the dynamic nature of these aspects. But the ministry has extended the validity of environmental clearances without allowing for changed circumstances during the construction period.
Speaking of changing contexts – one of the major changes that the draft EIA Notification proposes is to exempt expansion and modernisation projects from public consultation. A trial run of this exemption was almost carried out at the insistence of the coal ministry in 2017 when coal mining projects were exempted from public hearing for up to 40% expansion of their original capacity.
Now, the relaxation has been extended to all projects seeking to expand to up to 50% of their original capacity within the existing area.
A mutated EIA
The last two years have shown that the nature of the EIA is changing at a rapid pace. A key change that goes against the purpose of the EIA was brought in last year, the day Prakash Javadekar stepped down as the environment minister.
Post facto clearance, as mentioned earlier, is one of the most contentious parts of the draft EIA 2020 – yet it was brought in via an administrative route, in the form of a ‘standard operating procedure’. Its implementation was stalled at first due to an appeal in the Madras high court. But the Supreme Court recently gave a clean chit to the procedure.
Since courts have been reluctant in the past to intervene in administrative and policy decisions, this new trend of instituting big changes through the administrative route is more threatening and reduces the scope for public intervention.
Another recent demonstration of this came in the Supreme Court’s decision in the Central Vista case, where the court said that its role was limited to examining the constitutionality of policies and that it couldn’t become an approving authority.
By making this and other changes in the draft EIA Notification 2020, by instrumentalising office memorandums, the environment ministry has bypassed public consultation as well as has ignored the public sentiment expressed through the 2 million+ comments on the draft, many of them against the post facto provision. Now, the ministry’s expert panels at the Centre and the state levels are granting both prior and post facto environmental clearances.
Institutions designed to carefully evaluate projects before their commencement and to protect the environment have ultimately been incentivised to do otherwise. As if this wasn’t enough, to help them grant clearances quickly, environmental assessments are also being systematically replaced with standard safeguards, eluding public and expert scrutiny alike.
Meenakshi Kapoor is an independent researcher in environmental policy. Krithika A. Dinesh is an independent environmental lawyer.