By Vrinda Nargas and Parnika Goswami
The protection of environment is mandated by both international laws and conventions as well as the Indian Constitution and statutes. India, having signed and ratified the UN Framework Convention on Climate Change, is bound to follow the precautionary principle, which aims to anticipate, mitigate and prevent the irreversible damage that can be caused, especially in cases of scientific uncertainty.
The Indian Constitution casts a duty upon the state to protect the environment and safeguard forests and wildlife under Article 48-A. Similarly, under Article 51(g) citizens also have a fundamental duty to protect and improve the environment. The Supreme Court has also interpreted Article 21 to include the right to a healthy environment, in order to ensure preservation of the environment.
The Central Government has recently issued a Draft Notification in supersession of the Environmental Impact Assessment (EIA) Notification, 2006. It imposes certain conditions on new projects as well as project expansion and modernisation for the purpose of protection of environment. The Draft EIA notification provides a six-stage process, and has been placed in public domain for a certain time period, inviting objections and suggestions from the general public. The deadline had to be extended due to the pandemic and related delays in the notification appearing in the Gazette, and was set for June 30th, 2020 by the Ministry of Environment, Forest, Climate Change (“MoEFCC”). However, pursuant to widespread opposition by the public and a ruling by the Delhi High Court, this deadline was extended up to August 11th, 2020.
The EIA Draft Notification, 2020 “seeks to make the process more transparent and expedient through implementation of online system, further delegations, rationalization, standardization of the process, etc.”, however it suffers from the following shortcomings:
1. Dilution of public participation
Public participation is an important component of the procedural obligations under EIA. The EIA Notification, 2006 provided for a systematic, time bound and transparent procedure of public consultation which has been undermined under the new draft.
Under Clause 14 of the proposed draft, certain projects are exempted from public consultation which is a crucial step for getting an environmental clearance. These include inter alia, projects for modernization of irrigation projects, all category ‘B2’ projects and projects concerning national defence and security or involving other strategic considerations as determined by the government. ‘B2’ projects can be proceeded on the basis of “Prior Environment Permission” without undergoing the usual EIA process. Through this provision, the government wields wide powers to keep many projects, and the information related thereto, beyond the purview of public scrutiny. This is a move towards opacity, since the 2006 Notification does not contain such a blanket provision.
Earlier, where a public consultation through a public hearing was required, it was to take place in a physical space only. The new draft adds a provision for conducting a public hearing in “any other appropriate mode recommended by the Appraisal Committee”. Recently, Maharashtra Pollution Control Board conducted public hearings via a video-calling app for grant of environmental clearance for sand mining projects. Moreover, the notice period within which the public can submit their responses on an EIA report has been reduced from thirty days to twenty days in the name of making the process expedient.
2. Ex-post facto clearance to projects
The fundamental objective of conducting an EIA prior to the commencement of a project is to evaluate the likely impact of a proposed activity on the environment. However, the draft proposes an ‘ex-post facto’ clearance to be given to projects which implies that a project can begin its operations without getting an environmental clearance. Adding a provision like this, shows the inclination of the government more towards the interests of businesses and industries than the environment.
The decision to incorporate such a provision is in contravention with the Supreme Court’s decision in the case of Alembic Pharmaceuticals Ltd. v. Rohit Prajapati. In this case, the Supreme Court followed the decision of the Court in Common Cause v. Union of India and clearly held that ex-post facto clearances are unsustainable in law. The court ruled that the “Allowing for an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment.”
3. Centralisation of authority
Under the draft, there is ostensibly a clear delineation and distribution of power between the Centre and the states, with the MoEFCC having overarching powers. Moreover, it does not contain any clause which confers powers of regulation or appraisal to the district-level bodies. The Constitution grants inherent powers to local bodies such as municipalities and panchayats, however, by not devolving powers onto such bodies would only mean a failure to recognise the monumental role that they could play in the EIA process.
4. Assessment and complaint process
As per the draft, ‘B2’ category projects have been completely exempted from public consultation process, despite the fact they include inter alia large-scale projects related to irrigation, inland waterways, highways, expressways, multimodal corridors, ring roads, and aerial ropeways. The re-categorisation of such projects within the ‘B2’ category allows them to do away with the requirement of prior Environment Clearance (“EC”) and public scrutiny.
The draft also lays down that public hearing can be done away with if a “local situation” arises. This is tantamount to stifling the democratic process and taking away the right of the people to voice their concerns when they are important stakeholders.
It further discourages State Pollution Control Boards or Union Territories Pollution Control Committees from seeking additional studies from the project proponents once the Terms of Reference for the project have been prescribed, and during the appraisal stage of the process, restricting them only to inevitable situations.
The most draconian provisions in the draft pertain to the restriction on the persons who can raise complaints in case of non-compliance with EC conditions. Clauses 12(1) and 23(1) of the Draft Notification specify that only a limited category of person have the locus standi to raise complaints. Surprisingly, only project proponents or any government authority, the Expert Appraisal Committee or the Regulatory Authority can make cognisable complaints. This raises an important constitutional question, as it violates the fundamental right to life of ordinary citizens, as guaranteed by Article 21, which extends to the right to a healthy environment. Those living in the vicinity of such projects would undoubtedly be the first and most affected in case of any non-compliance, and depriving them of the right to make cognisable complaints is incorrect and in violation of constitutional principles.
5. Impact on local communities and ecologically sensitive areas
Another important component of the EIA assessment is to ensure that the projects do not cause irreparable harm to the ecosystems in the project area. In this regard, the draft limits the definition of “eco-sensitive areas/zones” to as notified by the MoEFCC. However, the definition should be extended to include floodplains, wetlands, sacred groves, watershed areas, and habitats notified under various other environment-related statutes such as the Indian Forest Act 1927, Wetland Conservation and Management Rules 2017, National Waterways Act, 2016, to name a few. These are currently not notified by the MoEFCC, despite these being eco-sensitive areas, and thus, their exclusion would only put them under further threat.
Another flaw in the draft is that it does not envisage study of the cumulative environmental impact of various projects in close proximity to/in an ecologically sensitive area. Rather than viewing a larger picture, the Draft Notification attempts to deal with various projects in a compartmentalised manner. It provides for cumulative impact assessment only for few projects, such as River Valley & Hydroelectric Projects, whereas not doing so for other projects can often prove detrimental.
Doing a cumulative impact assessment is critical for evaluating the impact of projects on the environment. Cumulating footprint of the environmental impact can be significantly larger and conducting EIA singularly for each project can be seriously misleading. The new notification has pushed a significant slab of threshold limits under category ‘B2’ projects and these projects are completely exempted from the EIA and public consultation process. This relaxation makes consultations for Cumulative Impact Assessments even more necessary.
The government seems to have turned a blind eye to the impact of eco-industrial hazards and is still contemplating giving a green light to similar projects such as the Gujarat limestone mining project, a uranium survey in Ambavad Tiger Reserve in Telangana, granting permission to drill boreholes in Sharavathi Sanctuary in Karnataka, construction of power lines and roads in Goa’s Mahavir Bhagwan Wildlife Sanctuary and Mollem National Park, and reducing 15% area from the eco-sensitive Western Ghats in Maharashtra, without undergoing any environmental clearance procedures.
If proposed projects related to highways and railway lines are approved and the forest cover is depleted, the fragile Western Ghats and other biodiversity hotspots may not be able to bear the brunt.
6. Measuring environmental harm in monetary terms
Another step in the way of debilitating the environmental protection regime is provided under Clause 22 of the draft notification. Under Clause 22(8), if a violation is reported by the project proponent himself, then a fee ranging from Rs. 1,000/- to Rs. 5,000/- per day (depending upon the category in which the project falls) shall be paid. Clause 22(9) states that if the violation is reported by the government authority or appraisal committee, then a fee ranging from Rs. 2,000/- to Rs. 10,000/- per day shall be paid. Moreover, it is mentioned that such amount will be calculated from the period of date of violation to the date of application. This implies that by paying paltry sums of money for harming the environment for a specific period of time, the project proponents get a free pass to continue with their activities even if they still continue to substantially damage the environment. In no way it is a practicable to equate irreversible environmental damage with money because payment of a certain amount of compensation would not reverse the environmental damage that has been caused.
Further, the Environment (Protection) Act, 1986 which is the parent statute for governing environmental protection in India, provides for criminal sanctions for failing to comply with any provisions of the Act or violating any other rule or direction issued for the protection of the environment. By laying down a provision for monetary compensation to be paid in case of a violation of the environmental law takes place, the draft is diluting the provision mentioned under the parent statute which entails punishment as well as fine for such violation.
The EIA Notification, 2020 should aim at overcoming the shortcomings of the EIA Notification, 2006 by providing stricter provisions and guidelines. Instead, the draft looks like an instrument which will weaken the existing environmental protection regime by giving clearance to projects in the name of development, which are harmful to the environment. The recent gas leakage from LG Polymers Plant in Vishakhapatnam and fire at Baghjan Oil field in Assam which were operating without requisite essential environmental clearance, should have made the government realise the repercussions of neglecting EIA procedures. However, the government seems adamant on enforcing the draft notification as soon as possible and without much resistance from the citizens.
The government recently banned three websites which were raising awareness on the draft, without giving any justification for their move.
It is important for achieving sustainable development that economic growth and environmental protection go hand in hand. Rather than focussing on the interests of businesses and industries for the sake of growth and development, the government needs to give equal importance, if not more, to the interests of the people directly affected by various projects and activities and the environment as a whole. It is time that the government realises that it cannot push for ease of doing business at the cost of the environment. There should be a greater attempt at information dissemination, rather than limiting it. Further, the government should enlarge the participatory role of the public, by allowing them to report violations to the authorities concerned, as those who are in violation will seldom bring themselves to book. The most concerning feature of the draft is that it dilutes the EIA process and introduces amnesty provisions that are skewed in favour of businesses. However, such an amnesty scheme should not become a permanent feature of the law.
The authors, Vrinda Nargas and Parnika Goswami, are currently law students at the National Law University, Jodhpur.
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