DRAFT ENVIRONMENT IMPACT ASSESSMENT (EIA) 2020- AN ANALYSIS
Environmental law in India has gone through an enormous change over the years. Initially, India lacked a comprehensive environmental legislation to cover within its ambit the evolving issues related to the environment. The insufficiency of legislations in India insofar as the environment is concerned was realized only in 1984 in the wake of the infamous Bhopal Gas Tragedy which led to the death of thousands of people overnight owing to a gas leak from a pesticide plant in Bhopal, Madhya Pradesh. This realization led to the enactment of a comprehensive legislation called the Environment (Protection) Act (EP Act) in 1986.
A quintessential element of the EP Act, 1986 is that it empowers the Government to carry out Environment Impact Assessment (EIA). EIA is a process to evaluate the environmental, social, and economic impact of a proposed industrial or infrastructural project before such a project is commenced. The first EIA Notification in India was issued in 1994 by the Ministry Of Environment and Forests (MoEF). Thereafter, the second and current EIA Notification was issued by the Ministry in 2006. The 2006 Notification mandatorily requires all new as well as existing projects which cross the threshold limits after expansion and modernization as provided in the Notification, to receive prior environmental clearance (EC). These various projects include mining, development and production projects, thermal power plants, river valley projects, nuclear power projects, pesticide industries, infrastructure (road, highway, ports, harbors, and airports), etc.
Recently, in exercise of power granted under sections 3(1) and 3(2)(v) of the EP Act, 1986, the Central Government on 23rd March 2020 issued the Draft EIA, 2020. Section 3(1) empowers the Central Government 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. Section 3(2) (v) provides that restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards. The 2020 Notification was published in the Gazette of India on 11th April 2020 under Rule 5(3)(a) of the Environment (Protection) Rules 1986 which provides that whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the locations of an industry or the carrying on of processes and operations in an area, it may by notification in the Official Gazette and in such other manner as the Central Government may deem necessary from time to time, give notice of its intention to do so.
The Draft EIA 2020 has received widespread criticism and protests from people across the country including experts, activists, environmentalists and students as being regressive, non transparent and violative of precautionary principle and the doctrine of sustainable development. Discussed below is an analysis of the major shortcomings of the Draft EIA which has led to its disapproval from concerned citizens:
Ex post facto environmental clearance: Ex post facto EC has been served on a silver platter to projects without prior EC by virtue of Clause 22 of the Draft EIA 2020. The said Clause makes provision for cases of violation by a project proponent to be appraised by the Appraisal Committee to assess whether a project has been constructed and/or expanded in accordance with prevailing laws and environmental norms with adequate environmental safeguards, as the case may be. In case the finding of the Appraisal Committee is negative, closure of the project shall be recommended along with other actions under the law including directions for remediation. Hence, as a condition of Environment Clearance, the Appraisal Committee shall stipulate the implementation of an Environment Management Plan (EMP), comprising remediation plan and natural and community resource augmentation plan corresponding to 1.5 to 2 times the ecological damage assessed and economic benefit derived due to violation. The Ministry may also prescribe suitable guidelines or mechanisms through which the project proponent shall discharge the above obligation. This Clause is prejudicial as well as ambiguous since when the existing law specifically makes the requirement of prior EC, how does the question of ex post facto EC arise at all?
Reduction of notice period for public hearing: The minimum notice period provided to the public for furnishing their responses against an EIA Report has been reduced from 30 days to 20 days.
Exemption of additional projects from public consultation: “Public Consultation” refers to 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 with a view to taking into account all the material concerns in the project or activity design as appropriate. Public consultation is thus a vital component of the process of EIA for obvious reasons. Although various projects are exempted from public consultation under the present EIA 2006, the list of the exempted projects has been increased under the Draft EIA 2020 to include most importantly, linear projects like oil and gas pipelines, slurry pipelines, highways, expressways, or multi-modal corridors in Border Areas. Border Area has been defined under the Draft EIA 2020 as the area falling within 100 km aerial distance from the Line of Actual Control with bordering countries of India, which implies that it would cover substantially the rich and pristine areas of North Eastern states of India.
Exemption from public participation: The Draft EIA 2020 makes no provision for the general public/citizens to report violations. Cognizance of violation would be taken only upon suo moto application of the project proponent or reporting by any Government Authority or when a violation is found during the appraisal by the Appraisal Committee or during the processing of the application, if any, by the Regulatory Authority. This is a clear attempt by the Government to silence the voice of those people who would bear the immediate brunt of such violations.
Exemption of strategic projects from the public domain: Under the Draft EIA 2020, no information relating to projects concerning national defense and security or involving other strategic considerations will be placed in the public domain. The term “other strategic considerations” has not been defined or specified under the Draft EIA 2020. Under such circumstances, what project would be considered as involving strategic consideration is left open, undetermined, and vague. The Government can label any project as strategic and the public would be deprived of any information in connection with such a project.
A bare analysis of the Draft EIA 2020 justifies the concerns and outrage of Indian citizens. There are no two ways about the fact that the environment has been degraded to the extent that the damage caused is irretrievable. When the need of the hour is to prevent further degradation of the environment, lenient laws like the Draft EIA 2020 tend to look the other way round rather than address the crisis. Take for example a recent activity of Coal India Ltd. that would help us understand better. Coal India Ltd. after the expiry of its mining lease has without any environmental clearance been breaking up forest land for open cast mining on the peripheries of the Dehing Patkai National Park in Assam. Now if the 2020 Draft EIA becomes the environmental policy of the country in its current form, a gross violation of this nature may end up gaining shelter under the umbrella of this newly introduced concept of ex post facto EC. Another instance that is recent and also continuing is the massive oil blowout that took place on 27th May 2020 in Baghjan in Tinsukia district of Assam, just outside the Dibru Saikhowa National Park. The impact of this blowout on the environment and human lives is profound and continues till date. The locals have lost their livelihood and their houses, not to speak of the irreversible damage that has been caused to the soil, air, and water in the vicinity due to the unabated oil spill and inferno. This is however not the only instance and there have been many incidents of blowouts in the past. Yet the Draft EIA includes all onshore and offshore exploration of oil and gas in B2 category thereby diluting the stringency in the assessment and compromising with the environment for economic gains.
There are numerous industries and companies like Oil India Ltd. and Coal India Ltd. which are operating without requisite permissions and clearances. The Draft EIA 2020 does not instill the confidence to address these issues, more particularly when the public is forbidden from reporting such violations. How likely is it that a project proponent will report its own violation, or a Government Authority will report the violation by major PSUs like Oil India Ltd. or Coal India Ltd.? That voicing of grievances by even the locally affected people is done away with symbolizes abetted crippling of democracy and Constitutional rights like Freedom of Speech and Expression. No doubt industrial development has boosted the economy of the country, but development at the cost of the environment is an impracticable proposition. Article 48A of the Constitution of India casts a duty upon the State to protect and improve the environment and safeguard forests and wildlife, but the Government appears to be oblivious of its duties towards its people.
The need of the hour is to prioritize the doctrine of sustainable development, which encompasses the precautionary principle. The principles evolved in the Rio Declaration, 1992 shall be taken as model principles in matters of balancing environment and development. The Rio declaration states that in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. It also emphasizes on the precautionary principle for the protection of the environment. It states that in order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The declaration also stresses the necessity of participation of all concerned citizens for handling environmental issues.
It must always be borne in mind that protection, preservation, and conservation of the environment is easier, cheaper, more effective, and less dangerous than remedying the harm already caused to the environment.