India EIA 2020 — A regressive departure from its predecessor

EIA Draft 2020–20 days to make a difference

Ministry of Environment, Forestry and Climate Change, India rolled out a notification for EIA draft 2020. The new draft is a regressive departure from its predecessor, and contains many questionable and outright objectionable clauses and amendments.

Released for public review in the middle of a pandemic, available only in two languages, and the lacking in clarity regarding deadline for suggestions, it has left the environmentalist community outraged. In the legal battle that ensued, deadline has been extended. So, here is my two cents on what exactly is wrong with the new draft EIA 2020.

Background

What is EIA? Environmental Impact Assessment is the assessment or evaluation of environmental consequences, both positive and negative of a program, policy, plan or an actual entity. This has to be ideally done prior to undertaking the project so as to have a clear idea of the repercussions. The widely accepted norm for EIA is the precautionary principle. Environmental damage once done, is irreparable. To give a little background on the environmental litigation in India –The Shore Nuisance (Bombay and Kolaba) Act, 1853 is the earliest act concerning environmental pollution in India. The progress from that has been at snail pace. As a signatory to the Stockholm Declaration (1972) on Environment, laws to control water and air pollution were enacted in 1974, and 1981 respectively. But it was only after the 1984 Bhopal gas tragedy that the country legislated an umbrella Act for environmental protection — The Environmental (Protection) Act 1986.

It was under this EPA 1986 that India legislated the first EIA 1994, to control activities that use and affect the natural environment and resources. This was further amended in 2006, and now the government has proposed a new draft in 2020, to make the “process more transparent and expedient”. Then why are environmental ideologues across India protesting against the new EIA draft 2020? To put it simply, because it is a regressive departure from its predecessor the EIA 2006.

So how does this process work?

The EIA process is cyclical with interaction between the various steps.

1. Screening: The project plan is screened for scale of investment, location and type of development and, if the project needs statutory clearance.

2. Scoping: The project’s potential impacts, zone of impacts, mitigation possibilities and need for monitoring.

3. Collection of baseline data: Baseline data is the environmental status of study area.

4. Impact prediction: Positive and negative, reversible and irreversible and, temporary and permanent impacts need to be predicted which presupposes a good understanding of the project by the assessment agency.

5. Mitigation measures and EIA report: The EIA report should include the actions and steps for preventing, minimizing or bypassing the impacts or else the level of compensation for probable environmental damage or loss.

6. Public hearing: On completion of the EIA report, public and environmental groups living close to project site may be informed and consulted.

7. Decision making: Impact Assessment Authority along with the experts consult the project-in-charge and a consultant to take the final decision, keeping in mind EIA and EMP (Environment Management Plan).

8. Monitoring and implementation of EMP: The various phases of implementation of the project are monitored.

9. Assessment of Alternatives, Delineation of Mitigation Measures and EIA Report:

a. For every project, possible alternatives should be identified, and environmental attributes compared. Alternatives should cover both project location and process technologies.

b. Once alternatives have been reviewed, a mitigation plan should be drawn up for the selected option and is supplemented with an EMP to guide the proponent towards environmental improvements.

10. Risk assessment: Inventory analysis, and hazard probability and index also form part of EIA procedures.

EIA 2020 — Contention

Activists and stakeholders have always had issues with the EIA process, major reasons being

1. The assessment process, which is the heart and soul of the whole process is often a shoddy / hastily compiled report, wherein the consultancies and agencies that undertook these studies are not held accountable.
2. There is no fixed and tangible set of guidelines to be followed while undertaking the EIA, giving consultancies a free reign
3. Lack of administrative infrastructure to ensure the long list of legal compliance

EIA 2020 was supposed to be an answer to all these concerns. Instead, EIA 2020 sharply deviates from the statutory foundation of EPA 1986 (altering 12 out of 14 clauses of EIA 2006) and actively deconstructs the paradigm of precaution and protection.

Instead of weakening the bureaucratic stronghold on the process, the new draft seems to call for a reduced public participation and an increment in governmental discretionary powers.

The notification removes what teeth the EIA 2006 had by reducing it’s scope by exempting a long list of projects from public hearings. One particularly disturbing aspect of this is the exemption of linear projects (roads, pipelines) in border areas, 100 km within LoC to be exact. This includes vast ecological hot-spots of the northeast. All inland waterways projects and expansion/widening of national highways will be exempt from prior clearance. These could potentially include roads that cut through forests and dredging of rivers. The 2020 draft also exempts most building construction projects of built-up area up to 1, 50,000 sq. m. It is interesting to note that the same had been proposed in a December 2016 notification by the MoEF and had been turned down by the National Green Tribunal in December 2017. The government did not receive an affirmative despite subsequently moving the Supreme Court.

The “strategic” tag — Under the new draft, the government can withhold information regarding “strategic” projects and the no information on “such projects shall be placed in the public domain”. This opens a window for clearance for any project deemed strategic by the administration without having to explain why. Keeping in mind, and accepting the importance of security infrastructure in the borders or elsewhere, one can still ponder on the evident increase in discretionary powers amidst unclear definition of “strategic”.

Perhaps the biggest step backwards is the new provision of ex post facto clearance — wherein an entity that has been constructed violating the guidelines can now get clearance after a meager fine, with very little hindrance. It should be noted that the courts in various prior cases had rescinded similar appeals by violators. As a country where guidelines violators has caused massive havoc like the Bhopal gas tragedy and the Visakhapatnam gas leak, the policy makers seem to have learnt nothing from our past.

Another daunting fact about the draft is that it does not allow for public complaint about such violations, instead it has to be reported by a government authority or the violators themselves.

The slackened monitoring requirements are also a matter of concern. The frequency of reporting requirements has been halved from every six months to once a year and the validity period for approvals in critical sectors such as mining has been extended.

The new draft, perhaps inadvertently seems to have become an instrument to silence the voices of affected communities, for whom a seismic shift in the environment can destroy livelihoods. The public consultation/ hearing was a referendum on this threat to existence. The very essence of democracy — providing voice to the otherwise unheard — is being curtailed here.

Public and EIA 2020

It is interesting that the new draft was rolled out for public scrutiny on 23rd March, a day before the nation-wide lock-down, perhaps counting on a global pandemic to suppress any questions that may be raised. There exists a 60 day period for the public to offer suggestions on the draft. Ensuing a legal battle between environmentalists and the Center (Vikrant Tongad vs Union of India), the Delhi High Court has decided to extend the deadline to August 9th 2020. Citizens and various stakeholders who have any suggestion and objections can write to the Secretary, Ministry of Environment, Forest and Climate Change, Indira Paryavaran Bhawan, Jor Bagh Road, Aliganj, New Delhi- 110 003 or can send an email at eia2020-moefcc@gov.in.

Takeaway

The new EIA draft is an infringement on “precautionary principle” and “sustainable development”, the two founding pillars of any environmental litigation. Silencing the voice of the people and bolstering bureaucratic powers, in order to pave way for “self — reliance and ease of doing business” is questioning democracy in itself. And development should not come at the cost of environment because honestly, there is no going back from there.