Written by Nidhi Karki of Institute of Law, Jiwaji University.
Edited by Shantanu Nemani.
The environment plays a significant role in the existence of life on earth. Humanity’s entire life support depends on the well-being of all the environmental factors. The EIA Notification 2020 put an adverse impact on the environment and weakens the process and standards for environmental clearance for industries in India. The draft notification is not focusing on ensuring the protection of the environment and compromise with the orders of the National Green Tribunal which had ruled against post-facto approvals. The Draft Environment Impact Assessment (EIA) Notification, 2020 proposed by the Union Ministry of Environment, Forest and Climate Change on 23 March, 2020 with the intention of replacing the existing EIA Notification, 2006.
EIA is a process of study which aims to evaluate the adverse consequences on the environment due to any industrial/infrastructural development project, For example, the construction of a highway or dam. Every industry needs to get Environmental Clearance (EC) from the concerned regulatory authority to start any new project or activity. It is a process that invites public comment and consultation for granting final approval to any developmental project. This process provides an opportunity for the authority to analyze and evaluate the adverse impact on the environment proposed by any new project.
The Draft notification is proposed under the Environment (Protection) Act, 1986, that gives power to the Union government to take necessary measures for “Protecting and improving the quality of the environment”. The environmentalist said that the provisions and clauses of the Draft EIA 2020 dilute the EIA process and raise concerns over its lack of transparency and how it makes public participation unrealistic and unfeasible.
IMPORTANT PROVISIONS IN THE NEW DRAFT NOTIFICATION
· The new draft notification includes three categories of projects namely A, B1 and B2 founded on the social and economic impact and geographical extent of these projects.
· The draft notification introduced two kinds of approval- Prior environmental clearance (EC) which requires the approval of expert committees for starting any developmental project and environmental permission (EP) which do not require the approval of expert committees for starting any project or activity.
· It exempted almost 40 different projects such as solar thermal power plants, digging well or foundations of buildings, sand extraction, and common effluent treatment plants from prior Environmental Clearance (EC) or prior Environmental Permission (EP).
· The new draft EIA, 2020 exempted several B2 category projects from public consultation such as chemical fertilizers, irrigation, acid manufacturing, production of halogens, building construction, acid manufacturing, and area development, elevated roads, and flyovers.
ISSUES PERTAINING TO NEW DRAFT EIA NOTIFICATION 2020
The issues pertaining to EIA Notification 2020 are as under:
● Post-Facto Approval: The new draft allows for post-facto approval for any industrial/infrastructural development project. It implies that those projects can seek environmental clearances who have already been operating without the approvals from the appraisal committee or regulatory authority. Post-facto approval allows the project to apply for clearance that violates the Environment (Protection) Act, 1986 (EPA). It means that any project that causes environmental damage can seek a waiver by paying some fines for the violation.
This waiver clause raises questions on several existing projects that are running without EIA clearances and shows how negligence and violation of environment norms led to deadly disaster. Some examples are as follows:
⮚ The LG Polymer Plant in Visakhapatnam where the styrene gas leak happened, operating for over two decades without environmental clearance, killed 12 people and sickened hundreds of people on May 7.
⮚ A similar incident happened on May 27, the natural gas of Oil India Limited in eastern Assam’s Tinsukia district had a blowout and caught fire due to negligence of environment norms and regulations. The State Pollution Board, Assam, had reported that the oil plant that caused severe damage to the livelihoods of people had been operating for over 15 years without obtaining approvals from the board.
● Issues regarding the time allotted for public comment: The draft notification brings some issues about the timeline announced for the public to submit their comments and consultation during a public hearing for any application seeking environmental clearance. This new provision reduced the time period from 30 days to 20 days for the people to invite their comments and suggestions on any project. The public hearing would not be meaningful if the draft notification does not provide adequate time for the preparation of views, comments, and suggestions.
● Bypassing EIA Process: The EIA notification 2020 gives power to the Central government to declare any project as “Strategic”. Once a project is declared as strategic, the draft notification allows the Central government to not disclose any information related to such projects in the Public domain. This notification is against the Principles of natural justice. The draft notification is also added that any new construction projects up to 1,50,000 square meters(instead of the existing 20,000 square meters) do not need detailed studies by the Expert appraisal committee, nor do they need EIA studies and public consultation.
● Exemption of certain Projects from Public Consultation: The new draft notification exempts various projects from public consultation. For example, linear projects such as roads, national highway, inland waterways projects, and pipelines in border areas will not require any public consultation and suggestions. The ‘border area’ is defined as “area falling within 100 kilometers aerial distance from the Line of Actual Control with bordering countries of India”. The border areas cover much part of the northeast, which is popularly known as one of the country’s richest biodiversity.
GOING AGAINST ESTABLISHED PRINCIPLES
The changes brought by the new EIA notification are in direct contradiction to the concept of polluter pays principle, sustainable environment, and precautionary principles established by the court. India is a social welfare state as embodied in the Directive Principles of State Policy (DPSP) under the Indian Constitution. The notification goes against the environmental law principles well established by the judicial precedents. The environmental groups and biologists have claimed that the notification is against the environmental norms and violates the fundamental rights of citizens by exempting certain projects from public consultation. It is quite necessary to maintain the balance between economic development and the environment. The Supreme Court also said that economic development would not supersede environment protection. No rules and regulations should be against the public interest. India’s position rises in the World Bank’s global ranking on the ease of doing business but its position decreases on the Environmental Performance Index (EPI). India ranked 168th out of 180 countries in the 2020 Environmental Performance Index (EPI). According to the Global Climate Index 2020, India is the fifth largest vulnerable country to climate change.
The new EIA draft notification compromise with the environmental safeguards for being pro-industry and destroys all the environmental rules and systems which have been in place for the protection of the Indian environment. The draft EIA notification was introduced in the interest of economic development over the natural environment and it violates the Environmental Protection Act, 1986, which aims to protect and improve the environment and biodiversity. The Ministry needs to increase the time for public consultation and should focus on ensuring access to information as well as awareness about the role of a public hearing. The government should bring down the average delay of 238 days in granting environmental clearance for operating any developmental project that emanates from bureaucratic delays and complex laws to improve ease of doing business. With the EIA we need social impact assessment to achieve sustainable development in true sense. The draft EIA notification needs wide and deep deliberation before its implementation with finality. The provisions which are pro-development need to be tempered because it will collapse the natural infrastructure which will be suffered by generations to come.
- Draft EIA Notification, 2020
- https://www.hindustantimes.com/india-news/india-5th-most-vulnerable-to-climate-change- global-climate-risk-index-2020/story-W9WR8cquip39dVcC6IWmxH.html
Image Courtesy- The Sentinel Assam