EIA Draft: A Regressive Step towards Progressive Development?

This article was written by Naina Agarwal, a student of Rajiv Gandhi National University of Law, Patiala.

India being a signatory to Stockholm Declaration of 1972[i], enacted laws for conservation and preservation of water[ii] and air[iii] in 1974 and 1981 respectively. It was only after the Bhopal Gas Tragedy (1986) which led to the enactment of an umbrella act of Environment Protection Act 1986. However, under this Act, India notified about EIA for the first time in 1994 setting up legal requirements against the incessant use of natural resources by big industries to fill their pockets. Every development project was required to undergo though EIA process to obtain environment clearance. The same was made mandatory for 32 categories of developmental projects.[iv] Nonetheless, in 2006, the amendment[v] was made to replace the 1994 EIA Notification, which was much more comprehensive and involved detailed procedure for obtaining such clearances.

Ex-Post Facto Clearance: Misapprehension of Progressive Developments

The EIA Draft of 2020[vi] gives nod to post-facto clearance which proves out to be the greatest fallacy. By this, it gives a green signal to the idea that if a project starts operation without clearances, it can continue working under the new norms. This is way dangerous than it seems and is evident of various incidents that took place recently. LG Polymer Plant in Vishakhapatnam has been running since 20 years without clearance and on May 7, a major styrene gas leak was witnessed.[vii] Because of poor adherence of the environmental norms, natural gas of Oil India Limited located in Eastern Assam[viii], caught fire, thereby causing huge damage to the livelihoods and biodiversity leading to disturbances in the ecosystem. It was reported by Assam Pollution Board that the plan had been operating since 15 years without taking consent from the authorities.[ix] With absence of stringent measures and safeguards, such incidents are bound to happen, that too with an increased frequency.

National Green Tribunal in 2016 declared the grant of ex-post facto clearances to developmental projects in contravention with the provisions of law. It issued various actions involving revocation of clearances along with closure of such projects and industries. The Apex Court in Common Cause v. Union of India[x] articulated that practice of granting ex-post facto clearance is invalid. The very idea of granting such ex-post facto approval also violates the ‘precautionary principle’ as envisaged by the court in Vellore Citizens Welfare Forum v. Union of India[xi]. The said principle is considered to be the important part of environmental jurisprudence. The Court opined,

“Environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.”

However, with the passage of time, recent trends reflect favoritism towards industries by granting them ex-post facto approval along with consideration of public interest. For instance, the Supreme Court in Lafarge Umiam Mining Pvt. Ltd. v. Union of India[xii], applied doctrine of proportionality and held that non-compliance to obtain environment clearance cannot lead to closure of establishment rather accounts for disproportionate penalty. The same has been upheld in Alembic Pharmaceuticals Pvt. Ltd. v. Rohit Prajapati and Ors[xiii]. The Apex Court in this case also tried to follow a balanced approach and allowed an industry (without environment clearance) to operate after depositing the fine.

Public Consultation: Faded Concept

The Draft strives to take away the power from the communities as it reduces their participation distressing the very concept of ‘Public Trust’. The public participation has twin role in the EIA process. Firstly, it makes them aware of the latest projects to be developed in their area and secondly, it provides them a chance to raise their voices regarding the project and get their issues addressed. However, several projects are exempted from participation of the public under Clause 14(c)[xiv]. The list comprises of activities pertaining to modernization and irrigation projects, projects of national defence and security, highway widening projects and building construction projects. Also, ‘border area’ has been defined as area falling under 1000 km aerial distance from LAC along with the bordering nations. This would majorly cover the North-East area where there’s a huge repository of the nation’s biodiversity.

The time allotted for every project presentation to gain environment clearance during COVID was way less than the requisite. How does government even justify such expedited process of clearances during lockdown especially when there is restriction on movement and people cannot raise their voices against such haphazard projects. Many belonging to backward or poor section do not have internet connectivity or resources to hire someone to be their voice. The situation has worsened the position of tribal communities living in the vicinity of forests.

The proposal also hurts the sentiments of the people by the way it curtails their right by giving a nod to the projects that has already caused a gargantuan harm and would aggravate the situation by allowing them to operate without approvals.  The government in this way approves the illegal projects and paves way for more such hazardous projects. The ambiguous language and drafting of the clause clearly reflects the intention of the state to blatantly favour the industrialists thereby leading to privatization of natural resources meant for all.

Justice DY Chandrachud in Hanuman Laxman Roskar v. Union of India and Ors. articulated that public hearings are required for the projects even with lower impact. He emphasized,

“The intrinsic character of public consultation is that there is a value in seeking the views of those in the local area as well as beyond who have a plausible stake project or activity…. It also recognizes that apart from the knowledge which is provided by science and technology, local communities have an innate knowledge of the environment.”[xv]

Eased Monitoring Mechanism: Illusion of Economic Growth

According to the mandate of 2006 Notification, the project shall safeguard the surrounding environment on the basis of issues advanced by the public for final assessment of EIA. However, under the new norms the project proponents would be required to submit the compliance report in every year as against 6 months under old norms. The Draft seeks to increase the validity period of key industries like mining to 50 years from 30 years, 15 years from 10 years for projects pertaining to river valley, nuclear power plants as well as irrigation and to10 years from 5 years for all other projects.

Hence, it is worth noting that such easing up of environmental norms would not boost the plummeting economy. India is the fifth most vulnerable country to climate change. Since the notification of draft, locusts invaded Indian subcontinent which has affected the supply of agriculture in India. Cyclone Nisarga and Cyclone Amphan has caused widespread destruction in Maharashtra and Eastern India respectively. The forest fires add fuel to the fire. These events are the consequences of climate change caused by extreme weather condition due to man-made activities. India has already lost one third of its grasslands and coastlines as well as losing the wetlands at the rate of 2-3% annually, thereby indicating the weakness of natural defenses to disasters caused by climate changes.[xvi]

The speedy approvals might benefit and secure investments for a short term. However, considering the long term, if not the whole economy, entire sector can go down with one wrong approval. There have already been instances of 2014 Coal-Gate and the Hydel-Gate of Northeastern Dams. Another area pertaining to this involves real estate sector. Even after getting approval, it might turn out to be hazardous as these developmental projects have always been in conflict with environment and affects large number of people along with biodiversity.

Minor Changes, Major Consequences

The Draft includes 43 sectors within its purview for regulation, however, it dilutes the regulatory process for their benefits. The Draft elucidates six steps in the process to make it appear elaborative, bulky process for scrutiny. But the same must be read with the exemptions and other relevant proviso to interpret the same. For example, several projects would require environment clearance without any public hearing or detailed assessment. It also allows for enhancement of the capacity by 10% with an online application without any appraisal. The Draft is very instrumental in the idea of expansion and modernization that converts raw materials with the use of advanced technology.[xvii]

Clause 22[xviii] of the Draft allows stakeholders to pay compensation in circumstances wherein they pollute the environment and continue with their operations as if nothing has been changed. But the question arises here, can such compensation revive and rejuvenate the environment? Therefore, the clause seems to weaken the definition, nature, punishment, criminal offences and violates the environmental law. It promotes the monetizing environmental crimes which currently is punishable with imprisonment.

The Draft exempts projects of building construction covered upto an area of 1,50,000 sq. m. which contravenes the December 2016 notification of the Environment Ministry, which was also set aside in December 2017 by NGT and further, government did not receive any relief from the Supreme Court.[xix]

The new amendment is not only regressive but also a blot on the Constitution. The Indian Constitution under Article 48A[xx] elucidates about the duty of the state to endeavor in order to protect and improve environment and safeguard forest and wildlife. Supreme Court have also interpreted and pronounced ‘right to a healthy environment’ under Article 21[xxi] of the Constitution. The Draft along with dilution of 2006 Notification, fails to uphold the citizen’s fundamental right integral to an individual and constitutional duty of a state.

Apart from the departure from environment legislations, international conventions and treaties, it has left no stone unturned to destroy the paradigm of protection and conservation of environment. It reverses the care meant for natural environment and exponentially increases the hazards to ecosystem and biodiversity as a whole.

[i] Declaration of the United Nations Conference on the Human Environment, https://www.ipcc.ch/apps/njlite/srex/njlite_download.php?id=6471.

[ii] Water (Prevention and Control of Pollution) Act, 1974.

[iii] Air (Prevention and Control of Pollution) Act, 1981.

[iv] Environmental Impact Assessment, Annual Report 2006-07, http://moef.gov.in/wp-content/uploads/report/0607/chap03.pdf.

[v] Compendium of Gazette Notifications on Environmental Impact Assessment, http://environmentclearance.nic.in/writereaddata/CompendiumEIANotifications(Updatedupto31Dec19).pdf.

[vi] EIA Draft, Ministry of Environment, Forest and Climate Change, http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf.

[vii] LG Polymers operated without appropriate environment clearance, The Wire, https://thewire.in/government/vizag-styrene-gas-leak-lg-polymers-environmental-clearance.

[viii] 13 days after blowout, Oil India Limited well in Assam catches fire, The Hindu, https://www.thehindu.com/news/national/other-states/13-days-after-blowout-oil-india-limited-well-in-assam-catches-fire/article31786950.ece.

[ix] Assam pollution panel wants Baghjan Oil fields closed, says no clearance, NDTV, https://www.ndtv.com/india-news/assam-pollution-panel-wants-baghjan-oil-fields-closed-says-no-key-clearances-2249588.

[x] Common Cause v. Union of India, (2017) 9 SCC 499.

[xi] Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647.

[xii] Lafarge Umiam Mining Pvt. Ltd. v. Union of India, (2011) 7 SCC 338.

[xiii] Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors., Civil Appeal No. 1526 of 2016, https://main.sci.gov.in/supremecourt/2016/2562/2562_2016_0_1501_21582_Judgement_01-Apr-2020.pdf.

[xiv] Clause 14(c) of EIA, 2020.

[xv] Hanuman Laxman Roskar v. Union of India and others, 2019 SCC OnLine SC 441.

[xvi] Nicole Rocque, Towards progress and preservation: A commentary on the draft EIA 2020 notification, Observer Research Foundation, https://www.orfonline.org/expert-speak/towards-progress-preservation-commentary-draft-eia-2020-notification-68087/.

[xvii] Analyzing the draft environmental impact assessment notification, 2020, Centre for Policy Research, https://www.cprindia.org/news/analysing-draft-environmental-impact-assessment-eia-notification-2020.

[xviii] Clause 22 of EIA, 2020.

[xix] Reading the draft environment impact assessment norms, The Indian Express, https://indianexpress.com/article/explained/draft-environment-impact-assessment-norms-explained-6482324/.

[xx] India Const. art. 48A.

[xxi] India Const. art. 21.