Atisha Sisodiya, Assistant Manager (Legal-Regulatory) at BSE Limited
Anoushka Mehta, is a current fourth-year law student (B.A., LL.B) (Hons.) at Maharashtra National Law University, Mumbai.
Environmental Impact Assessment (EIA) is an internationally used regulatory tool to gauge the impact and risks of a proposed industrial / infrastructural project on the environment and includes elements of human and environmental rights. In India, each new project that requires environmental clearance must mandatorily go through a thorough screening and scoping process by the regulatory authorities, and then the proposed project is published for public consultation.
The Indian Ministry of Environment, Forests and Climate Change released a draft Environmental Impact Assessment Notification (hereinafter ‘the EIA Notification’) in March 2020 to replace and supersede the previous 2006 EIA Notification. While the stated objective of the EIA Notification is to “streamline” and “rationalize” processes and expedite the process for environmental clearance, a closer look reveals certain substantial changes which deviate from the legislative intent of the parent legislation – The Environment (Protection) Act, 1986 and are against the constitutional mandate to protect the environment. Further, the EIA Notification infringes on the following international commitments: UN Framework Convention on Climate Change (UNFCCC), 1992 to regulate greenhouse gas emissions; Montreal Protocol, 1987 to protect the Ozone Layer; Agenda 21 instituted in Earth Summit in 1992 to achieve sustainable development as well as the pledge made in the Paris Agreement 2015, to contribute in reducing global climate change by 2030.
The EIA Notification has received extreme public backlash and environmental rigor from activists, experts, and local communities all over the country who have demanded its withdrawal. Recently, the Government of India blocked websites that were raising public awareness and campaigning against the contentious notification. Such action not only eliminates civic participation but also violates rules of natural justice and essential elements of digital democracy. It is within this rubric, that this article seeks to delve into the legal and policy perspective of the EIA Notification and analyse the proposed changes.
Areas of Concern in the EIA Notification
An amendment always has the larger goal to fill the gap between the previous law and the ground reality but the EIA Notification circumvents the environmental protection secured by various Indian judicial pronouncements and neglects the balance between sustainable development and environment protection.
At the outset, the notification has been released at a time of catastrophe and massive economic slowdown. Not only does the notification fail to acknowledge the reality of the prevailing situation but also attempts to dilute public consultation and community involvement amongst the concerned stakeholders who would want to engage in meaningful deliberations to strategize and re-valuate on a cardinal, complex and comprehensive piece of legislation.
Ex-Post Facto Environmental Clearances
The major reason the EIA Notification has received flak is due to its ex-post facto clearance provision which allows commencement of projects before assessment and clearance. This is against the foundation of EIA which requires a comprehensive assessment before a project is given a go-ahead. The provision directly circumvents the law laid down by the Indian judiciary in a streak of decisions where such retrospective clearances have been held unconstitutional. The Supreme Court of India has held that an executive notification allowing such clearance goes against the parent legislation and is therefore illegal. The court also observed that such provisions defeat the very objective of the EIA process and are not aligned with the environmental jurisprudence. Such environmental clearance has also been held as a violation of the guaranteed fundamental right to life, also interpreted as Right to Life and Healthy environment, under Article 21 of the Constitution of India. Further, granting ex post facto approval goes against the Precautionary Principle enshrined as customary international law in a landmark Indian case of Vellore Citizens Welfare Forum v. Union of India.
Diluted Public Consultation
The concept of Public Consultation, as provided in the Rio Declaration aims to take into consideration the views of concerned stakeholders who are likely to be impacted by a project. The EIA Notification reduces the period for conducting a public hearing to 20 days from the previous 30-day period. The affected communities who are well-placed to understand and evaluate the actual implications of such changes and largely would hail from less economically developed areas hence would be incapable of submitting their concerns in such a short period.
“Moreover, far from stimulating post-Covid 19 economic recovery, not only does the EIA Notification reveal anti-environmental and anti-people attitude but also ignores certain basic environmental management principles.”
Another serious issue in the EIA is that it exempts public consultation for projects including modernization of irrigation projects, building, construction and area development projects, inland waterways, expansion or widening of national highways and all projects related to national defense and security or involving other strategic considerations as determined by the Central Government. Further, it also states that no information of such projects is to be placed in the public domain, thus reflecting non-transparency. The provision is thus, dampening, arbitrary, and suffers from excessive delegation, to say the least.
This consultation process then becomes exclusionary by nature, and can be read as violative of fair hearing principles of natural justice enshrined under Article 14 and 21 of the Indian Constitution.
Citizens cannot take cognizance of violations
Another ambiguity in the EIA Notification is that the authority to officially report environmental violations lies only with the project developers and government authorities. This means that the right of citizens, especially of local communities and other stakeholders cannot be used to raise concerns and take recourse against violations.
Inadequate reporting requirements
The 2006 EIA Notification required compliance reports to be submitted twice in a year. The troubling aspect of the EIA Notification 2020 is that it reduces such reports to be submitted from twice a year to once a year, thus making compliance and reporting mechanisms weaker. The draft also increases the validity of the approval period for crucial industries like mining from 30 to 50 years, irrigation, river valley, and nuclear power projects from 10 to 15 years and all other projects from 5 to 10 years.
Failure to abide by the International Legal Framework
Article 51(c) of the Indian Constitution mandates that the State shall foster respect for international law and the obligations under the treaties. This includes environmental obligations under international conventions.
The EIA Notification fails the principle of non-regression of environmental protection laws and the polluter pays principle that requires the polluter to bear the costs for the failure to prevent foreseeable damages to human and environmental health. The National Green Tribunal of India marked these principles as ‘indispensable’ discouraging the deregulation of environmental legislation at the expense of the environment. Additionally, the EIA Notification also deviates from one of the most important principles in international environmental law i.e. the Precautionary Principle. This principle has been adopted in various international environmental instruments and states that if there is a risk of severe damage to the environment, the absence of any scientific or conclusive proof is not to be given as a reason for the inaction. The judiciary of India has shown its support for the adoption of this principle in multiple instances and has opined that sustainable development is the need of the hour for which the importance of the application of this principle is paramount.
By introducing post facto environmental clearances, the EIA Notification not only diminishes the tireless efforts of the Indian judiciary in expanding the scope of sound environmental jurisprudence but also blatantly disobeys laws created by the legislature and various environmental obligations and principles recognized under various international conventions.
This draft serves to manifest at the lax regulatory framework and appears to be far out of tune with the required standard of state obligations vis-à-vis environmental and human rights. Such ease of regulations can only inspire the depletion of environmental resources at the hands of government discretion motivated by political and capitalist interests. The recent enviro-industrial hazards in the country like the Polymers gas leak in Vishakhapatnam (2020), Bhilai Steel Plant Pipeline Blast (2018), and Belur Chlorine Gas Leak (2017) are the reflections and consequences of the non-seriousness of the existing regulations. While these incidents should serve as an alarming reminder to have stronger regulations and mechanisms in place, they have had the opposite effect.
Moreover, far from stimulating post-Covid 19 economic recovery, not only does the EIA Notification reveal anti-environmental and anti-people attitude but also ignores certain basic environmental management principles. In such an existential crisis, when the environment is in most need of protection and there is a need for stringent and higher environmental standards, the EIA Notification seems to be utterly disregarding the domestic institutional and policy frameworks that integrate concerns of affected populations within environmental jurisprudence.
The notification is still at the stage of public comments and it is essential that its provisions be vigorously debated so that the dilution of norms that it envisages does not become official policy. Owing to the ambiguities in the Notification and far-reaching consequences of the EIA, the High Court of Delhi overruled the Ministry’s decision on the time limit for filing objections to the EIA Notification and extended it till August 11, 2020. Therefore, it becomes imperative that the government acknowledges the comments, objections and recommendations of the stakeholders who demand for an EIA law to be based on sound science, and robust and transparent decision-making processes. At a time when the global community is faced with climate emergency and increasingly intense natural disasters, environmental safeguards need to be should be strengthened and not diluted.