The Ministry of Environment, Forest and Climate Change, empowered by section 3 of the Environment (Protection) Act, 1986 has recently notified draft Environment Impact Assessment Notification, 2020 (EIA Notification) in March 2020. The ministry has invited public comment on the draft notification till 30 June 2020. Once officially notified by the MoEF&CC, it will supersede the present Environmental Impact Assessment Notification, 2006.

What is EIA Notification?

Environmental Impact Assessment is a process of evaluating the likely environmental impacts of a proposed project or development, taking into account inter-related socio-economic, cultural and human-health impacts, both beneficial and adverse. These regulations are promulgated to ‘regulate’ and to provide the ‘environment clearance’ by the government for projects such as dams, mining, thermal power plants, infrastructure projects like highways, ports, airport and big construction projects.

What will change?

According to a report from Live Law the key takeaways from the current draft are:

  • The draft neglects public consultation for projects.
  • Draft exempts public hearing for more than 35 highly polluting chemical industries in notified industrial estates such as manufacturing of acids, paints, dyes, fertilisers, pesticides and pharmaceuticals, amongst others. This can cause havoc in rural areas that depend entirely on ground water and riverine water for domestic and agricultural use.
  • Industries are now allowed to only give an annual environmental compliance report rather than half yearly reports. Past experiences show that industries have continued to provide data that are false and inaccurate. Seeking an annual report provides incentives to industries to further downplay any socio-environmental issues arising in their projects. This compliance needs to be made more stringent by seeking quarterly reports.
  • If an industry is found with non-compliance of any environmental condition, no provision to suspend or cancel the Environment Clearance (EC). The polluter can merely pay some fine and continue merrily. There will be no deterrence effect.
  • Current draft increases the validity of the environment clearances to 50 years for mining projects as against 30 years in the current law and 15 years for river valley projects as against 10 years, thus increasing the risk of irreversible environmental, social and health consequences on account of the project remaining unnoticed for long.

What’s the issue?

While the government claims that this will further promote the objectives of the ease of doing business in India, the draft EIA 2020 has come under criticism from many environmentalists, activists and civil societies around. They are claiming that the new notification is going to jeopardise and dilute the whole foundation of environment clearance.

Responses

Commenting on the said notification, Forum for Policy Dialogue on Water Conflicts in India has submitted, “the EIA notification cannot include in it any provision (like the para 22 in the draft EIA 2020 notification) that has already been struck down as being unconstitutional by the Supreme Court of India. The para 22 in the draft EIA 2020 notification deals with provisions to enable a post facto Environmental Clearance (EC) to projects that have been carried out by the project proponent without acquiring prior EC as provided by the provisions of the EIA Notification.”

To support their argument, Forum has further referred to a judgment dated April 1, 2020 delivered by the Supreme Court by Justice Chandrachur in Alembic Pharmaceutical Ltd Case in which it was held, “the concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence.”

The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision-making and public consultation process has been completed.

Manthan Adhyayan Kendra, a Pune based centre to research, analyse and monitor water and energy issues has said: “the draft 2020 must incorporate this provision, and also provide for proper involvement of local communities in the preparation of the EIA, as local communities have immense knowledge of the local environment. Today, the only say local communities have is at the so-called public consultation, which is carried out at the far end of the impact assessment process, when the EIA is ready. The public hearing procedure and actual experiences are riddled with problems, which have been extensively documented by others. The point we want to bring in here is that the public involvement must come much earlier in the project appraisal cycle.”

They have further suggested in this regard that the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Social Impact Assessment and Consent) Rules, 2014 provide an excellent model for the entire EIA procedure and should be adopted by MoEFCC also.

Healthy Energy Initiative India, commenting on the Environment vs Economic development aspect has said,“this draft seems to be appeasing the business and economic interests over environmental interests. This is evident from the fact that the draft proposes an 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. 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 the developmental activity, he has the scope of either hiding data about the detrimental consequences of the activity or downplaying its impact.”

Stalin D, Director of Vanashakti, a Mumbai based environmental NGO in his letter to the ministry has objected to the para 25 which provides time duration for any appeal to NGT and has written that “the time given for an appeal before the NGT is 30 days, we request that it should be made 60 days since 30 days is too less to take any cognizance or gather data for citizens to challenge the anomalies in the project. Even RTI applications are not answered in 30 days so it does not give the concerned citizen any chance to collect data needed.” He further writes, “considering the lack of effectiveness of the proposed legislation, we call upon you to scrap this draft notification and publish a new one if and only if needed.”

Vindhyan Ecology and Natural History Foundation in its 41 paged report has provided a detailed and clause by clause suggestions and recommendations relating to public consultation, EC for modernization projects, perpetual validity of EC during the operational phase, grant of post facto EC and projects exempted from the requirement of prior EC.

The world famous and academically reputed development journal, The Economic and Political Weekly (EPW) in an editorial has said, “the draft EIA Notification 2020 must be put on hold. Not only is this not the time to seek public comments, but it has to be deferred because such a notification has to be widely discussed and can be considered only after due democratic deliberation.” Centre for Policy Research, New Delhi, has also requested the environment ministry to immediately, withdraw the proposed amendments of the draft EIA notification 2020.

(By: Gautam Kumar)

 

Campaign Notes & Newsletters – Reporting beats on forests, water, waste, tourism and urbanization. An initiative by Editorial Team at Himalayan Watch. Write to us at contactsdcuk@gmail.com