ENVIRONMENTAL IMPACT ASSESSMENT DRAFT 2020: UNDERMINING THE INDIAN ENVIRONMENTAL JURISPRUDENCE.

THIS ARTICLE WAS WRITTEN BY ARNAV SHASTRI, A STUDENT OF SYMBIOSIS LAW SCHOOL, PUNE.

INTRODUCTION

With the new Environment Impact Assessment draft of 2020 in news due to the controversy of it being violative of the environmental laws of India, this article strives to understand the crux of the issue and what are the loopholes in the draft. The article has been written in sections that define all about the Environment Impact Assessment, the old provisions, an analysis of the 2020 EIA(Environment Impact Assessment) draft by the Ministry of Environment, Forest and Climate Change, and does it adhere to the Environment Protection Act, 1986.

WHAT IS THE ENVIRONMENTAL IMPACT ASSESSMENT DRAFT?

Environmental Impact Assessment or popularly known as ‘EIA’, is the process of evaluating and analyzing the policies or the proposed future projects that would take place and the impact they would have on human health and the environment. The EIA is a guideline that ensures that no infrastructure project is sanctioned without prior assessment and supervision. In simple terms, EIA can be defined as a tool used to approve the planning and decision-making of various human policies and projects. The importance of EIA is to predict the future impacts on the environment and assisting the decision-makers by telling the positives and negatives of the projects.

Wood (2003), defines Environmental Impact Assessment as a systematic and integrative manner for thinking about viable impacts before a decision being taken or whether or not a proposal should be proceeded with or not.[1]

HISTORY OF ENVIRONMENTAL IMPACT ASSESSMENT(EIA)

It was in the 1970s that the Environmental Impact Assessment was promulgated by the United States government due to huge public outrage. It was enacted by National Environmental Policy Act, 1970. As for the situation in India till the 1980s there was no regulation or an environmental concern on the proposed policies. In 1985 the Ministry of the Department of Environment was established. The department was administrative in nature and henceforth the large construction projects and policies required a clearance from the ministry. The EIA was globally recognized at the Earth Summit in Rio and stated that the assessment is important and should be treated as national-level order to safeguard the environment.[2]

In September 2006 the Ministry of Environment, Forest and Climate Change (MoEFCC) enacted a new EIA legislation. The notification made it mandatory for projects such as mining, infrastructure, and electroplating for and environmental clearance. It is this notification of 2006 only which has been amended and promulgated in 2020.

HOWS DOES THE EIA 2020 DRAFT DIFFER FROM THE 2006 DRAFT?

The EIA 2020 draft proposes a number of major changes in the current 2006 notification. These changes are detrimental to the Environment Protection Act 1986 as there are a number of exemptions and privileges provided to large-scale projects of both the private and public sectors. Among the major departures from the existing regulation is the removal of a number of activities from the purview of public consultation. This in turn could be a setback to the environment as it fails the sole purpose of the Environment Protection Act, 1986. The major changes in the draft are discussed below.

 CHANGES PROPOSED

The new draft produces major changes in the categorization of projects which in turn reduces the scrutiny that they will be subjected to. The current norms divide all the projects into three categories namely A, B1, and B2 based on the potential, social and economic impact. Category A faces the maximum scrutiny as these are generally large-scale projects which have a high potential to cause disruption to the local area and ecosystem where it is being undertaken. In the new draft certain A category projects such as river-valley hydro-electric power plant construction projects have been recategorized to B1 and B2 categories.[3] The re-categorization removes certain levels of examination and may exempt the project from an assessment by the appraisal committee for granting environmental clearance.

In terms of project modernization and expansion, the projects that required modernization or production increase of up to 25% do not require an EIA assessment, whereas projects with a 50% production increase are exempted from public consultation. Although A and B1 projects that desire to increase production by more than 50% still require a public consultation except for modernization of irrigation projects. [4]

The 2006 regulation has a wide category range that required an EIA whereas in the 2020 draft a set of 40 industries was shifted to the B2 category which was exempted from EIA and public consultation. These projects include inland waterways, highway expansion, hydroelectric projects up to 25 MW, oil, paper, and gas industries, and irrigation projects from 2000 to 10,000 hectares. [5]The time period for the process of public consultancy and hearing has also been reduced to 40 days from the previous 45 days.

The next two changes that have been made have raised the maximum grievance and public outrage. The first being the self-reporting clause i.e the cognizance of the wrong shall be taken by the violators themselves or government authorities including the appraisal committee.

In the 2006 IEA guideline, the clause of ex-post facto approval was not contemplated for projects being set up or expanded without a prior environmental clearance i.e if the project starts or expands without an environmental clearance it amounts to a violation. However, in the 2020 draft, this has changed and has given rise to a number of questions. The change in the draft now allows projects to take a post-facto clearance i.e a clearance after setting up of the industry or commencement of the project. Projects will be able to apply for regularization post-facto subject to if they have remediation and resource augmentation plan equivalent to 1.5 to 2 times the damage assessed and economic benefit derived.

ISSUES WITH THE EIA DRAFT 2020

POST-FACTO CLEARANCE

The prime issue of the EIA draft 2020 is the post-facto clearance. This means that clearance for a project can be obtained even after the project has already commenced and the operations can be carried out without the required clearance.

It has been contended that the provision is “disastrous” as it promotes the projects that have been running already without a prior EIA being carried out. A very latest and vivid example of the same can be the styrene gas leak at the LG. Polymer Plant, Vishakhapatnam that took place on 7^th May 2020 and claimed 11 lives and resulted in 1000+ non-fatal injuries.[6] Post the accident it was revealed upon investigation that the plant had been running without clearance for over two decades. A very similar issue came into light on May 27, 2020, wherein natural gas from Oil India Limited’s oil field at Bhagjan in eastern Assam’s Tinsukia district had a blowout and caught fire. The incident took place owing to the poor adherence to environmental norms. The incident resulted in three deaths and severe damage to the livelihood in the region with a very rich bio-diversity. It was reported that even after five months of the incident the oil well at Bhagjan was still burning. The State Pollution Board, Assam, had reported that the oil plant had been operating for over 15 years without obtaining prior consent from the board. The aforementioned incidents can be seen as an example of how the industries that have already violated the norms and have caused damage can still be granted clearance under the veil of post-facto clearance. An article by livemint.com has said that the provision of post-facto clearance in the new draft runs afoul of a Supreme Court judgment delivered on 1^st April 2020 which said, “The concept of an ex post facto EC (environmental clearance) is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA notification dated 27 January 1994. It is, as the judgment in Common Cause holds, detrimental to the environment and could lead to irreparable degradation.”[7]

NEGATION OF INTERNATIONAL CONVENTIONS

India for a long time has been involved as a party in many treaties and agreements including the United Nations Framework Convention on Climate Change (UNFCCC) and Kyoto Protocol. Both these conventions emphasize on a strong and strict EIA to preserve the environment. After pledging its allegiance to these treaties and now on the contrary weakening its EIA at the domestic level by the new amendments that have been introduced, India is in a position of cognitive dissonance. Steps like these will surely weaken India’s position as a global leader in climate preservation and climate change politics. Apart from this, even the International Court of Justice has acknowledged the importance of a strong EIA. It was in the ‘Pulp Mills on River Uruguay’ judgment where ICJ recognized the EIA as an obligation of international law.

WEAKENED PUBLIC CONSULTATION PROCESS

Public consultation is an important aspect of impact assessment. In the latest draft, the MoEFCC proposes to expand the list of projects that do not need to seek public consultation before they seek environment clearance. The draft said that projects like inland waterways, expansion or widening of national highways, all projects concerning national defence and security or involving “other strategic considerations” are exempted from a public consultation. It is also held that projects that deal with national defence and security shall require prior clearance from the ministry but no information regarding the same would be put forth in the public domain. Also, a mining project can now get environmental clearance for a period of up to 50 years, in the beginning, itself which in the 2006 version was up to 30 years only. Sushmita Patel, a researcher working on environmental issues, told Mongabay-India that, “public consultation process under the EIA notification has been riddled with infrastructural disabilities, inefficiencies, and lack of access to information.”[8]

ULTRA VIRES TO DOMESTIC ENVIRONMENTAL LAWS

 Post Indira Gandhi’s visit to the Stockholm conference in 1972, the Indian environment jurisprudence saw a new age. Legislations like the Wildlife Protection Act, 1972, The Water (Prevention and Control of Pollution) Act, 1974, the Forest (Conservation) Act, 1980 to name a few. In addition to this Environment Protection Act of 1986 under Article 253 of the Constitution was enacted as a response to the tragic Bhopal Gas Tragedy.[9]

The Environmental Impact Assessment itself originates from Section 3 of this legislation. According to Section 3 of the Environment Protection Act- “ Subject to the provisions of this Act, the Central Government shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.”[10] With the changes proposed, the new draft EIA 2020 stands in contravention to Section 3 and the Act as a whole. The aforementioned statement can be supported by the fact that the EIA 2020 dilutes public participation, allows a post-facto clearance, and excludes a number of large-scale projects. The changes in the draft may result in a violation of Article 21 of the Constitution where the environment is defined as an integral part of the right to life and personal liberty.

STANDS AGAINST THE JUDICIAL PRECEDENTS

Since the draft is Ultra Virus in nature, it also violates several judicial precedents. As mentioned above in the article the Supreme Court in the case of Alembic Pharmaceuticals Ltd vs Rohit Prajapati[11] while refering to the Common Cause vs. Union of India judgment[12], condemnded and struck down the ex-post-facto clearance. The court went on to state that, “It is, as the judgment in Common Cause holds, detrimental to the environment and could lead to irreparable degradation.” 

In 2013 the Hon’ble Supreme Court in the case of Association for Environmental Protection vs the State of Kerala[13] held that commencement of any large-scale project without prior environmental clearance is a threat to Article 21 of the Constitution that talks about the right to life.

As it has been mentioned in the article above that the new draft has reduced public involvement in obtaining a clearance even though we can observe that the Supreme court in its judgment of Lafarge Umiam Mining Private Limited vs Union of India[14] held that public consultation is mandatory while obtaining an environmental clearance and also must have a grievance redressal forum so that the project does not cause disruption to the locals and the local eco-system. Similar reasoning was followed in the case of Samarth Trust and Anr. v. Union Of India and Anr.[15] in which the Delhi High Court held that a public hearing and consultation is a form of “participatory justice” that gives voice to the voiceless and gives people to raise grievances pertaining to the social and health impact due to the proposed project.

After discussing the above-mentioned cases and going through the judgment by the courts we can quite evidently see that the new proposed changes in the EIA 2020 draft are violative of various judicial precedents.

CONCLUSION

There have been certain changes already made in the 2006 regulation due to the COVID-19 Pandemic. The major concerns for the new draft have been the dissolution of thresh-holds for an environmental assessment which further whittled down the balances that determine a proper assessment and clearance. The provision of the ex-post-facto clearance is the most contentious. The draft not only is violative of Section 3 of the Environmental Protection Act but also of various precedents set by the courts of the country. It also lacks public involvement hence jeopardizing the safety and preservation of eco-systems. In a nutshell, it can be inferred that before implementing the draft the Ministry of Environment, Forest and Climate Change (MoEFCC) needs to reconsider the changes and promulgate a new draft accordingly.

REFERENCES

• Convention on Bio-diversity in their blog titled “What is impact assessment?” available at, https://www.cbd.int/impact/whatis.shtml

• Preetha M. in her article titled “EIA Explained” on Legal Bites available at, https://www.legalbites.in/environmental-impact-assessment/#:~:text=Environmental%20Impact%20Assessment%20is%20a,being%20sanctioned%20without%20proper%20supervision

• BTG Legal in their article on Mondaq titled “ Draft EIA 2020: Key Highlights” available at, https://www.mondaq.com/india/climate-change/1007950/draft-environmental-impact-assessment-notification-2020-key-highlights#:~:text=The%20Ministry%20of%20Environment%2C%20Forest,%2C%20on%20April%2011%2C%202020.

• BTG Legal in their article on Mondaq titled “ Draft EIA 2020: Key Highlights” available at, https://www.mondaq.com/india/climate-change/1007950/draft-environmental-impact-assessment-notification-2020-key-highlights#:~:text=The%20Ministry%20of%20Environment%2C%20Forest,%2C%20on%20April%2011%2C%202020.

• Ananthakrishnan G. in his article to The Hindu titled “ What are the key changes in the EIA 2020?” avalaible at, https://www.thehindu.com/sci-tech/energy-and-environment/the-hindu-explains-what-are-the-key-changes-in-the-environment-impact-assessment-notification-2020/article32249807.ece
• Mohantay A. in his article “ Why EIA 2020 needs a revaluation?” on DownToEarth available at, https://www.downtoearth.org.in/blog/environment/why-draft-eia-2020-needs-a-revaluation-72148#:~:text=In%20short%2C%20the%20new%20draft,environmental%20norms%20every%20six%20months.
• Bakshi A. in her article titled “EIA 2020: Violation of Environmental Laws” on livemint available at, https://www.livemint.com/mint-lounge/features/eia-draft-2020-violation-of-environmental-law-is-seen-as-development-11597593043757.html
• Agarwal A. in his article on Mongabay titled “ India’s proposed overhaul in environmental clearance could dilute existing regulation” available at, https://india.mongabay.com/2020/03/indias-proposed-overhaul-of-environment-clearance-rules-could-dilute-existing-regulations/
• Mishra A., Mohanbabu M. in their article on DownToEarth available at, https://www.downtoearth.org.in/blog/environment/draft-eia-2020-undercuts-india-s-biodiversity-and-climate-goals-73201#:~:text=The%20draft%20EIA%20notification%2C%202020,Environment%2C%20Forest%20and%20Climate%20Change.&text=It%20also%20stands%20to%20endanger,under%20the%20Right%20To%20Life.

• Section 3, Environment Protection Act, 1986.
• 2020 SCC OnLine SC 347
• ((2018) 5 SCC)
• (2013) 7 SCC 226
• (2011) 7 SCC 338
• P. (C) 9317 of 2009, Delhi High Court

[1].Convention on Bio diversity in their blog titled “What is impact assessment?” available at, https://www.cbd.int/impact/whatis.shtml

[2]Preetha M. in her article titled “EIA Explained” on Legal Bites available at, https://www.legalbites.in/environmental-impact-assessment/#:~:text=Environmental%20Impact%20Assessment%20is%20a,being%20sanctioned%20without%20proper%20supervision

[3] BTG Legal in their article on Mondaq titled “ Draft EIA 2020: Key Highlights” available at, https://www.mondaq.com/india/climate-change/1007950/draft-environmental-impact-assessment-notification-2020-key-highlights#:~:text=The%20Ministry%20of%20Environment%2C%20Forest,%2C%20on%20April%2011%2C%202020.

[4] BTG Legal in their article on Mondaq titled “ Draft EIA 2020: Key Highlights” available at, https://www.mondaq.com/india/climate-change/1007950/draft-environmental-impact-assessment-notification-2020-key-highlights#:~:text=The%20Ministry%20of%20Environment%2C%20Forest,%2C%20on%20April%2011%2C%202020.

[5] Ananthakrishnan G. in his article to The Hindu titled “ What are the key changes in the EIA 2020?” avalaible at, https://www.thehindu.com/sci-tech/energy-and-environment/the-hindu-explains-what-are-the-key-changes-in-the-environment-impact-assessment-notification-2020/article32249807.ece

[6] Mohantay A. in his article “ Why EIA 2020 needs a revaluation?” on DownToEarth available at, https://www.downtoearth.org.in/blog/environment/why-draft-eia-2020-needs-a-revaluation-72148#:~:text=In%20short%2C%20the%20new%20draft,environmental%20norms%20every%20six%20months.

[7] Bakshi A. in her article titled  “EIA 2020: Violation of Environmental Laws” on livemint available at, https://www.livemint.com/mint-lounge/features/eia-draft-2020-violation-of-environmental-law-is-seen-as-development-11597593043757.html

[8] Agarwal A. in his article on Mongabay titled “ India’s proposed overhaul in environmental clearance could dilute existing regulation” available at, https://india.mongabay.com/2020/03/indias-proposed-overhaul-of-environment-clearance-rules-could-dilute-existing-regulations/

[9] Mishra A., Mohanbabu M. in their article on DownToEarth available at, https://www.downtoearth.org.in/blog/environment/draft-eia-2020-undercuts-india-s-biodiversity-and-climate-goals-73201#:~:text=The%20draft%20EIA%20notification%2C%202020,Environment%2C%20Forest%20and%20Climate%20Change.&text=It%20also%20stands%20to%20endanger,under%20the%20Right%20To%20Life.

[10] Section 3, Environment Protection Act, 1986.

[11] 2020 SCC OnLine SC 347

[12]  ((2018) 5 SCC)

[13] (2013) 7 SCC 226

[14] (2011) 7 SCC 338

[15] W. P. (C) 9317 of 2009, Delhi High Court