By Harsh Vardhan Bhatt (PH, CSCLI) ~ Law College Dehradun, faculty of Uttaranchal University

The Environment Impact Assessment (EIA) was created under the Environment Protection Act, 1986 foreseeing the possibility that certain industries and businesses may cause irreparable environmental harm in their creation, development, functioning, or expansion and thus it must be stopped at its inception. The recent draft notification seems to ignore all the principles of environmental jurisprudence and poses to be draconian law amidst this global pandemic. We already have a fragile system when it comes to Environmental Impact Assessment but this draft further weakens an already fragile system. This article seeks to analyse the EIA Notification, 2020 discussing the problems and its effects on the environment and the citizens.

This draft  notification is against the statutory requirements of Section 3 (1) of the Environment (Protection) Act, 1986 which reads: “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.” This notification is also against the “Public Trust Doctrine” which is one of the most important aspects of Sustainable Development Goals. The state being the trustee of the resources is bound to take measures in a view of protecting and improving the environment but this notification seems to go in the exact opposite direction where even the aggrieved party does not have a locus standi to file a valid complaint. Environment Impact Assessment is an essential component of the Precautionary as we all Sustainable Development principles.  In the judicial pronouncement of Vellore Citizens Welfare Forum v UOI[1], the Court opined that sustainable development is the need of the hour. The court emphasized the fact that there should be a balance between economic growth and protection of the environment and one should not take place at the cost of another. The Court also referred to the Stockholm Declaration of 1972, Caring for Earth of 1991, the Earth Summit, and the Rio Declaration of 1992 and opined that the Precautionary Principle and the Polluter Pays Principle are indispensable features of Sustainable Development. In the case of M C Mehta v Kamal Nath[2], the Supreme Court reiterated the decision given in the Vellore Citizens Welfare Forum case stating that the Precautionary Principle is a part of the environment law in India. In the case of AP Pollution Control Board vs. Prof M V Nayudu[3], the Court stated that it is better to go wrong in taking caution and prevent environmental harm rather than waiting for the issue to materialize into an irreversible problem. But this new draft is riddled with problems and has even been criticized for dismantling the environmental safeguards but the government does not seem to care about the irreversible harm that would be caused to the environment in their aim to achieve the goal of “Ease of Doing Business”. The problems have been divided into four major categories:

  1. Post Facto Clearance
  2. Dilution of public participation
  3. Exclusion of many industries from EIA Process
  4. Monetization of Environmental Violations

Post Facto Clearance

The proposed notification opens up a window for securing post-facto clearances. Post-facto clearance, by and large, gives a free pass to industries who have begun carrying out their work without getting clearance and will be allowed to regularise their operations by paying a fine. The pass may be applied later if required by the government. In India, many industries have already been functioning this way by setting up potentially harmful industries without getting the necessary clearance. This post-facto clearance can lead to many disasters such as the ones India has already witnessed like the LG Polymer Vizag Gas Leakage case where the styrene gas leak happened on May 7, which allegedly did not procure the necessary clearances and was running for almost 2 decades. In the LG Polymers gas leak in Visakhapatnam, the Environment Ministry told the National Green Tribunal that the unit lacked environment clearance, exposing the low effectiveness of rules. A similar incident on May 27, where poor compliance of environment norms led to a huge fire due to blowout of the natural gas of Oil India Limited in Tinsukia district of Assam. This caused severe damage to the livelihood of people in the biodiversity-rich region. The State Pollution Board, Assam, reported that the oil plant had been operating for over 15 years without obtaining prior consent from the board.

This post-facto clearance clause is in contravention with the Supreme Court’s judgment in the case of Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors.[4] The Hon’ble Supreme Court bench comprising Justice D Y Chandrachud and Justice Ajay Rastogi was of the opinion that post-facto clearance is in derogation of environment jurisprudence. The Supreme Court followed the decision of the Case in Common Cause v. Union of India[5] which clearly held that post facto clearances are “unsustainable in law”. The court ruled that the “Allowing for a 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.” The SC also pointed out that since the retrospective clearance is a “purely administrative decision”, it “cannot override the Environment (Protection) Act of 1986” – which is the governing law. Let’s understand the logic behind the Environmental Impact Assessment (EIA) process and why environmental clearance is a prerequisite to the launching of a project/industry.

One of the most accepted principles of environmental jurisprudence in achieving the global aim of Sustainable Development is the precautionary principle which ensures whether or not all precautions have been taken in the setting up of industry to save the environment. Environment Impact Assessment forewarns the effect of a proposed industrial project on the environment and prevents the project from being approved which poses a threat to the environment. The Environment Impact Assessment process consists of the following steps: screening, scoping and consideration of alternatives, baseline data collection, impact prediction, assessment of alternatives, mitigation measures, environmental impact statements, public hearing, environment management plan, decision making, and monitoring the clearance conditions. All these steps help in scrutinizing the harms that may occur in the process of the creation, development, functioning, or expansion of the industries so that appropriate measures and precautions can be taken to reduce the potential damage to the extent possible. Thus, environment clearance has been put into place through the Environment Impact Assessment.

Exclusion of many industries from EIA Process

But the EIA 2020 draft notification sabotages this process by dispensing various types of projects from prior environment clearance, EIA studies, and public consultations all of which are key safeguards for local communities and the environment. All projects have been categorized into A, B1, and B2 on the basis of their potential social and environmental impact and spatial extent of these implications. B2 projects are completely out of EIA coverage and public consultations. They don’t even need environmental clearance, instead, they will get “environment permission” without assessment by the Expert Appraisal Committee. These projects include all inland waterways, expansion of national and express highways up to 100 km, up to 25 megawatts hydroelectric power, irrigation projects irrigating 2,000 to 10,000-hectare land, small and medium cement plants, MSMEs making bulk drugs, synthetic rubber, organic chemicals, paints and construction projects with build-up area up to 1.5 lakh sqm, etc. Under Clause 26 of the EIA draft, 40 different types of industries will be exempted from the need for prior environmental clearance. This includes projects declared as important for defense, security, and labeled as ‘strategic’ by the government. The draft also says that no information on “such projects shall be placed in the public domain”. The EIA Notification 2020, including its listed exemptions, doesn’t disclose the criteria for exemption and is against the basic tenets of administrative law, which requires exceptions to be culled out based on sound reasons. Further, no public consultation would be required for any oil, gas, and slurry (coal and other ores) pipelines “passing through national parks or national sanctuaries or coral reefs or ecologically sensitive areas” or in highways/expressways/ring roads/multimodal corridors in border areas.

Though these industries may be small the impact they can have when they run unchecked may be huge. The recent gas leakage from LG Polymers Plant in Visakhapatnam and fire at Baghjan Oil field in Assam which was operating without requisite essential environmental clearance should have made the government realize that it is very dangerous to leave the industries unchecked and it can cause a lot of damage if they are not checked time to time.

Dilution of public participation

One of the key democratic features of EIA Notification, 2006 is that it empowers people who are directly affected, to voice their opinion regarding new projects through mandatory public consultations. It also is a crucial step in ensuring accountability from polluting industries. The most stringent provisions in the draft are the restriction on the persons who have locus standi in case of violation with environment clearance conditions. Clauses 12(1) and 23(1) of the EIA 2020 Draft Notification specify that only a limited category of person has the locus standi to raise complaints. Only violator-promoter, government authority, Appraisal Committee, or Regulatory Authority can make cognizable complaints. It is indeed ironic that the violator has a locus standi whereas an aggrieved party does not. Also, the draft EIA notification, 2006 specified a “minimum of 30 days” for public consultation. The current notification gives a “minimum of 20 days” of the notice period. It also requires that the public-hearing process be wrapped up in 40 days, as opposed to the existing norm of 45 days. This raises a very serious issue of violation of the fundamental right to life of ordinary citizens, as guaranteed by Article 21 of the Constitution of India, which gives them the right to a safe and healthy environment as said by the SC in case of Subhash Kumar v. State of Bihar[6]. Those living in the locality of such projects would definitively be directly affected communities in case of any non-compliance, and depriving them of the right to register complaints is in violation of their right to life as it abridges their right to a safe & healthy environment. In the case of Lafarge Umiam Mining Private Limited v. Union of India[7], where it held that public consultation is a mandatory requirement of the environmental clearance process in providing an effective forum for any person aggrieved by any aspect of any project to register and seek redressal of their grievances. The reduction period is also against directions given by the Gujarat high court in the year 2000 in the case  Centre for Social Justice v. Union of India[8], which insisted on a minimum of 30 days for a public hearing. The public hearing must not be an eyewash.it should serve its purpose for which it has been incorporated in the first place. In the case of Adivasi Majdoor Kisan Ekta Sangathan v Union of India[9], the Supreme Court declared the faulty public hearing to be a nullity in the eye of law. Effective public consultation can be instrumental in upholding the legitimate concerns of the local communities and stakeholders affected by the project.

Delhi High Court in the case of Samarth Trust And Another vs Union Of India And Others[10]. A public hearing is a form of participatory justice giving a voice to the voiceless (particularly to those who have no immediate access to courts) and a place and occasion to them to express their views with regard to a project. Participatory justice is in the nature of a Jan Sunwai where the community is the jury. Such a public hearing gives an opportunity to the people to raise issues pertaining to the social impact and the health impact of a proposed project. From the terms of the Notification dated 14th September 2006 it seems, prima facie, that so far as a public hearing is concerned, its scope is limited and confined to those locally affected persons residing in the close proximity of the project site. However, in the Court’s opinion, the Notification does not preclude or prohibit persons not living in the close proximity of the project site from participating in the public hearing; they too are permitted to participate and express their views for or against the project.

Monetization of Environmental Violations

It seems as if the Polluter Pays Principle has been interpreted out of the box to earn revenue from the violators and then let them get away with the wrong they have committed. In cases of a violation reported by a government authority or by the regulatory authority processing an application under this notification 2020, the violator under the Environmental Management Plan process shall be only liable for remediation and resource augmentation equivalent to 1.5 to 2 times of the ecological damage and the economic benefit derived from the violation. As for late applicants of environmental clearance, a fee of Rs 2,000-10,000 per day shall be paid by the project developer for the period of delay. It means that industries with annual turnovers in crores have to pay just Rs 36 lakhs per annum to keep on doing the harmful activities they are carrying out. This practice is very harmful to the generations to come. The policy seems to care more about the revenue that would be generated rather than the irredeemable damage caused by them. This notification does not fulfill the purpose of environmental protection rather it makes it an outlet to generate revenue.

The text of the notification had only been translated into three languages instead of 22 mentioned in the Eighth Schedule of the Constitution. The Delhi High Court on June 30 decreed that the draft be translated into “at least the languages mentioned in the Eighth Schedule of the Constitution” within 10 days.

EIA remains the only viable mechanism to ensure the disclosure of the details of the project, understand the impacts, and to ensure that projects adhere to legal safeguards for affected communities. The significance of public participation has been elevated by the judiciary in Orissa Mining Corporation Ltd. v. MOEF (Vedanta case)[11] when it ruled that the gram sabha would have to be considered before the MOEF grants environmental approvals for developmental projects involving rights of individuals and communities in scheduled areas. But as we can see the new draft notification by the government makes it easier for industries to escape environmental accountability and has rendered the environmental clearance process “non-transparent, undemocratic, unjust and unaccountable”.

Rather than making new laws what must be done is the strict implementation of notification, 2006 and thus making this a better place to live rather than barring it for materialist benefits.

Citations

  • [1] AIR 1996 SC 2715
  • [2] (1997) 1 SCC 388
  • [3]1994 (3) SCC 1
  • [4]2020 SCC OnLine SC 347
  • [5] (2017) 9 SCC 499
  • [6]1991 AIR 420.
  • [7] 2011 AIR 2781.
  • [8] AIR 2001 Guj 71.
  • [9]Appeal no. 3/2011 (T) NEAA no. 26 of 2009.
  • [10]Writ petition no. 9317 0f 2009.
  • [11] (2013) 6 SCC 476.

The Enigma of Draft EIA Notification, 2020

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