The Ministry of Environment, Forest and Climate Change (MoEFCC) has proposed a draft Environmental Impact Assessment (EIA) notification to replace the current notification, which goes back to 2006. The new draft is still at the stage of public comments and it is essential that its provisions be vigorously debated so that the dilution of norms it envisages does not become official policy.
The concept of EIA came to India in 1978-1979 but became mandatory only in 1994 – after the government notified it as a requirement under the Environment Protection Act, 1986. As the name suggests, an EIA is supposed to consider the environmental impact of projects and find ways to reduce their adverse impact upon the environment. An EIA also involves the people concerned in the decision-making process of granting final approval to any developmental project or activity.
Backstory: Rules riddled with loopholes
One major change effected by the 2006 EIA regulation was an increase in the number of projects requiring environmental clearance. Apart from this, the notification engaged states in granting clearance for projects mentioned in Schedule I, and mandated the formation of a state-level appraisal committee (SEAC), the recommendations of which were to be considered before granting approval. The responsibility of conducting public hearings was given to the pollution control boards instead of the proponents of the project.
All of this was in consonance with evolving jurisprudence. In the Samarth Trust Case, the Delhi high court had considered EIAs “a part of participatory justice in which the voice is given to the voiceless and it is like a jan sunwai, where the community is the jury.”
In reality, however, the 2006 notification failed to strengthen the public consultation process – which is one of the key stages in an EIA.
The notification defined public consultation as “the process by which the concerns of local affected persons and others who have a plausible stake in the environmental impacts of the project or activity are ascertained to take into account all the material concerns in the project or activity design as appropriate.” This was to be done either by conducting a public hearing at the site or in its proximity or by obtaining a written response from the local affected persons. The meaning and the purpose of public consultation suggests that people who are going to be affected by the activity should get a chance to express their views and concerns.But the 2006 notification was criticised for diluting the process – by including a provision stating that if the situation is not conducive to conducting public consultation, then the EIA could be forgone.
Like the 1994 notification, the 2006 notification also provided for the EIA to be conducted at the end of the environmental clearance process – and thus gave very little scope for the public to take an active role in the different stages of the process.
Since then, the government has made amendments to the notification which have been criticised for exempting several industries. The government has also been criticised for diluting the EIA process just to improve the ‘ease of doing business’ and attract greater investment.
For example, in 2016, the Union government started the Char Dham highway project in Uttarakhand. The project aims to improve road connectivity to four Hindu pilgrimage sites in the Himalayas – Gangotri, Yamunotri, Badrinath and Kedarnath. It has time and again been argued that the project was sanctioned without a proper EIA even though the highways are located in eco-sensitive zones and the government escaped environmental assessment, thanks to loopholes in the EIA notification.
In 2017, the Union environment ministry provided a safeguard for project proponents who had not obtained mandatory environment clearance and wished to seek post facto clearance. This notification was, however, struck down by the Madras high court citing the EIA notification of 2006 and the Environmental Protection Act.
Problems with the new draft
In March 2020, the ministry has proposed a draft notification to replace the 2006 document. The notification is at the stage of public comments. The new notification is being brought in order to make the process more transparent and expedient by implementation of an online system, further delegation, rationalisation and standardisation of the process.
The notification incorporates several scattered amendments that the government made from time to time since the 2006 notification. It also defines several terms which were previously not properly defined, giving the law on EIA some much needed clarity. The 2006 notification did not have any definitions clause, which made it difficult to ascertain the meaning of various terms used in the notification. The 2020 draft notification has a clause dedicated to definitions – remedying the problem. Thus the proposed regulation is beneficial in the sense that it consolidates the EIA legislation and has the potential of alleviating some ambiguity in the present law.
Further diluting effectiveness of public participation
However, the new notification also includes certain provisions which could end up diluting the EIA process, especially the public consultation aspect. It provides for a reduction of time period from 30 days to 20 days for the public to submit their responses during a public hearing for any application seeking environmental clearance. It also requires that the public hearing process be completed in 40 days – compared to 45 days under the 2006 notification. The main reason stated for reducing the time is that it would become easy for new investments to complete the formality of EIA.
The danger is that if adequate time is not given for the preparation of views, comments and suggestions to those who would be affected by the project, then such public hearings would not be meaningful (as noted by the high court in the Samarth Trust Case). Unless a public hearing is meaningful, the whole EIA process would lack transparency and credibility. The reduction of time would particularly pose a problem in those areas where information is not easily accessible or areas in which people are not that well aware of the process itself. As the Supreme Court has said in several judgments over the years, the time for making any representation should be adequate and if it is not, then it would be a violation of the principles of natural justice.
Even though the notification provides for the dissemination of information relating to public hearings through newspapers (and where dissemination through newspapers is not possible then by beating of drums or through radio or TV), the problem still remains. The issue of concern here is not the notice for public hearing but the access to information on which the affected people need to comment.
For example, in the case of expansion of the Jindal Steel and Power Limited plant, the local administration in Chhattisgarh did not issue proper notice of the public hearing and copies of the EIA and its summary were made available only at three places, instead of five as mandated in the EIA notification. The ministry, instead of reducing the time, should have focused on ensuring access to information as well as awareness about the public hearing and its impact upon the whole EIA process.
And rather than compromise on the time needed for gathering public opinion, the government should have focused on bringing down the average delay of 238 days in granting environmental clearance. In Kerala, the administration took 1,049 days to clear the construction of the IT park project of M/s L&T Tech Park Ltd, instead of 105 days.
Investor-friendly compliance mechanism
Another problem relating to the new notification is the extension of the time given for submitting a compliance report throughout the term of the project.
The earlier notification required that the project proponent submit a report every six months, showing that they are carrying out their activities as per the terms on which permission has been given. However, the new notification requires the promoter to submit a report only once every year. During this period, certain irreversible environmental, social or health consequences of the project could go unnoticed because of the extended reporting time. For example, if a mining project is being carried out at some place which can be potentially hazardous to the nearby population and can contaminate the air, and water nearby, a half-yearly compliance report would better help in addressing these concerns. Any hazardous activity can then be stopped through timely reporting.
However, providing a longer period for filing reports can lead to disastrous consequences. In such a situation, the concerned authority will not have the opportunity to question the promoters for not following the terms of clearance. The only remedy would be to impose a fine or punishment; but that would not reverse the detrimental consequences on the environment.
Further, the compliance mechanism requires the promoters to file the documents on which the environmental impact is to be assessed. This leaves a lot of room for promoters to pick and choose the data and information which is to be supplied. Arguably, if a proponent is engaged in developmental activity, he has the scope of either hiding data about the detrimental consequences of the activity or downplaying its impact. Large multinational corporations work with the objective of profit and are less concerned about the environmental consequences of their actions.
This can be seen from the example of Sterlite Industries Ltd (a subsidiary of Vedanta), which constructed its refinery projects without even disclosing its mining business at the first stage. In the Vedanta case of the Niyamgiri forest, legal provisions were violated and bent for the corporation’s benefit, ignoring the plight of the Adivasi population. Verification by the government would avoid situations like this. If the government relies only on information provided by the project proponent, this would mean that unless someone complains about a problematic aspect, the problem would go unnoticed.
Apart from diluting the process, the new draft also increases the number of projects or activities which do not require an EIA process to be conducted. The 2006 notification was brought to cover all projects and activities but with time, the government through amendments exempted several activities from the EIA process. Complete exemption means no study need be conducted on a project’s adverse consequences for the environment and local population. The exemption problem is compounded by the fact – as highlighted in the CAG report of 2016 – that not a single project has been penalised for the violation of terms and conditions on which its environmental clearance has been granted. The report also highlights the problem of cumulative impact assessment of all the projects in EIA. Generally, the process takes into account only the proposed project impact on the environment and ignores the cumulative impact of the activity. This is the gloomy reality in which India’s environmental laws exist.
An EIA is considered an important tool to achieve sustainability.The Supreme Court has observed in Vellore Citizens Welfare Forum v UOI that companies’ are vital for countries’ development, but having regard to pollution, the doctrine of ‘sustainable development’ must be adopted by them as a balancing concept. If final clearance is granted after taking into account the environmental, social, health concerns, then in it can be said that the government is using this process as a tool to ensure sustainability. But if we look at several aspects of the new draft notification, it seems that the government is compromising on the process – thus promoting ‘development’ without taking into account other concerns.
The current notification, if it comes into force, is a move towards seeking investment irrespective of any adverse consequences that could follow. The government should not allow investment by diluting its EIA process just to fulfil its ambitious project of making India a $5 trillion economy by 2024.
Amit Kumar is a research scholar at IIT Kharagpur. He has completed his masters in international law from South Asian University, New Delhi.