This article is written by Nidhisha Garg, from National Law Institute University, Bhopal.

Introduction

On March 23, 2020, the Ministry of Environment, Forest and Climate Change released a draft Environment Impact Assessment (EIA) Notification for public consultation and invited comments by stakeholders on the same within 60 days. EIA is a process by which any new infrastructural development project for example, the construction of a highway or dam etc. needs to get Environmental Clearance (EC) from the concerned regulatory authority. The process affords an opportunity to the authority to assess the adverse impacts that the proposed new project would be having on our environment. EC is then either given or rejected based on doing a cost benefit analysis and weighing the benefits of the project against the requirement for sustainable development. This allows the State to maintain a harmonious balance between the two. If accepted and finalized, the notification will replace the EIA framework that is currently in place since 2006.

The current research work is an attempt at critically analyzing the features of draft EIA notification, 2020.

Salient features of new draft notification

The salient features of the notification are as under:

1. Replacement of the incumbent 4-Stage Process by a 6-Stage process

The 2006 framework provides for 4 stages in the process of EIA: (1) Screening, (2) Scoping, (3) Public Consultation and (4) Appraisal. The draft EIA Notification, 2020 proposes a 6 stage process: (1) Scoping, (2) Preparation of Draft EIA, (3) Public Consultation, (4) Final EIA, (5) Appraisal and (6) Grant or Rejection of EC/EP.

However, the change is mere in the nomenclature as these steps exist even under the current framework, the only difference being the 2006 notification does not term each step of the process as a different stage. However, there is one significant difference, and that is the “Screening” stage which exists under the 2006 notification is nowhere to be found under the draft notification. This is a stage where Category B projects are scrutinized by the State Level Expert Appraisal Committee (SEAC) to determine if the project requires further environmental studies for preparation of its EIA report. The Category B projects are further divided into Category B1 (projects which do require EIA report) and Category B2 projects (projects which do not require EIA report).

Lack of such a provision implies that Category B projects will no longer undergo this additional scrutiny. The further division of category B projects into Category B1 and B2 shall therefore, now depend on the spatial extent of potential impact on human health, natural and man-made resources.

2. Effective Increase in the Number of Categories of Projects

The current framework under the 2006 Notification consists of only 3 categories of projects- A, B1 and B2. However, the draft EIA Notification proposes an increase in the number of categories of projects to 5:

• A projects (require prior EC from the Ministry),
• B1 projects fulfilling General Conditions mentioned in Clause 3 (require prior EC from the Ministry),
• B1 projects not fulfilling General Conditions mentioned in Clause 3 (require prior EC from SEIAA or UTEIAA),
• B2 projects which are required to be placed before Appraisal Committee (require prior EC from SEIAA or UTEIAA), and
• B2 projects not required to be placed before the Appraisal Committee (require prior EP from SEIAA or UTEIAA).

3. Environment Permission

Under the current framework, Category B projects which do not fulfill the general conditions, do not require a prior Environmental Clearance. However, the new framework under the draft notification of 2020, proposes that Category B2 projects which are not required to be placed before the Appraisal Committee, although do not need a prior EC, however, they do need a prior Environment Permission, a concept which is alien to the existing framework. However, the draft notification does not further elaborate on how an EP will be different from an EC and therefore, it is recommended that some more clarity be provided on an EP before the final notification is released.

The other provisions with respect to scoping, public consultation, approval by appraisal committee, validity of EC for 10 years, transfer of EC, post-approval monitoring and circulation of information about the grant of EC etc. have more or less remained the same and any other significant change has been dealt with in the subsequent sections.

The draft EIA Notification, 2020 has brought several changes to the existing framework. While some of them are salutary and worthy of being retained, some might need reconsideration. The next two sections of this work deal respectively with such changes along reasons for why they should be kept or reconsidered or kept with some modifications. 

Salutary changes proposed under the draft Notification

• Comprehensive List of Definitions

The draft EIA Notification, 2020 has introduced a slew of definitions of all the major components and important aspects of the EIA process. Such an inclusive and comprehensive list of definitions was lacking in both the earlier notifications, that of 1994 as well as in 2006. This is a welcome change as the definition clause would assist the courts in construing the intention of the legislature while deciding disputes which arise under the notification. Guidance from the legislature results in faster and more efficient decision making as there remains less ambiguity with respect to the intention of the legislature.

• Introduction of Technical Expert Committee

Rule 9 of the draft EIA Notification, 2020 proposes the formation of a Technical Expert Committee which “shall undertake categorization or re-categorization of projects on scientific principles including any streamlining of procedures and other tasks assigned to the committee for the purpose of this notification.”^[i]

This is a salutary initiative as until now, the categorization of the projects was done only on the basis of the, “spatial extent of potential impacts on human health and natural and manmade resources.”^[ii]

Also, the regulatory authorities, agencies and committees that exist under the current notification may not be academically equipped or qualified to do a scientific classification into categories of various projects. The introduction of TEC implies that experts of the field can classify similarly placed projects likely to have similar kinds of impacts on the environment in one category. This seems to be a more logical approach.

• Provision for Amendment of Prior EC

Rule 18 of the draft EIA Notification, 2020 provides that as long as the change does not relate to a shift in the project site after the stage of public consultation, the project proponent may apply for amendment of his application for environmental permission or environmental clearance as the case may be. This makes the process smoother and hassle free for the applicant as under the currently existing framework, the project proponent has to make a fresh new application for every minor change, thus resulting in inordinate delays and restrictions. 

• Shift to Online Mode of Applications

The current framework does not provide for submission of applications via the online mode. However, the draft EIA Notification, 2020 mentions in a lot of places that project proponent may submit the form to the regulatory authority online. It also provides that the regulatory authority may notify the Terms of Reference for projects required to be placed before the Appraisal Committee via online method.

This is an advancement and especially in light of the circumstances that we find ourselves today, this change is not only far-sighted but was the need of the hour. 

• Reduction of timeline for grant of EC

Under Rule 17 of the draft EIA Notification, 2020, the final decision with respect to grant or rejection of Environmental Clearance or Environmental Permission as the case may be should be taken within ninety days of the submission of the final application and supporting documents. This is a reduction of fifteen days as compared to the existing framework as under the 2006 notification, the final grant or rejection must be decided within one hundred and five days from the submission of the EIA report by the project proponent.

This is a welcome step as it makes the process speedier, thus enabling the project proponent to begin with the project sooner than later.

• Appeal to National Green Tribunal

Under Rule 25 of the draft EIA Notification, 2020, a project proponent who is aggrieved by the decision of the regulatory authority with respect to grant of environmental clearance or permission as the case may be, may prefer an appeal to the National Green Tribunal within thirty days of the decision of the regulatory authority. This change is beneficial to the project proponents as it allows their project and its merits to be considered a second time before an appellate authority.

Such a provision for appeal will keep a check on the regulatory authority from exercising its powers arbitrarily and will thus ensure maintenance of Rule of Law.

Pitfalls of the draft notification

1. The draft notification defeats the purpose of public consultation

The draft notification provides that the members of the public and the interested stakeholders must submit their comments within 60 days of the publication of the notification. However, considering that during the entire time that was given to stakeholders for their suggestions, the country was under a very strict nationwide lockdown, it would have been very difficult for the public to send in their comments as most of the postal services were suspended during these unprecedented circumstances. The circulation of the draft therefore seems to be on the face of it, merely a formality as no effective review and representation can be made done by stakeholders in these circumstances of lockdown.

Moreover Principle 10 of the Rio Declaration clearly states that, “States shall facilitate and encourage public awareness and participation by making information widely available”. Unfortunately, that has not been done in the instant case. The draft notification has only be published by the Central Government’s Ministry of Environment, Forest and Climate Change, absent any efforts by the State governments to circulate it on their official websites, thus making it all the more difficult for a significant number of stakeholders from having the opportunity of reviewing and submitting their comments on the draft notification.

Therefore, it is suggested that either the time limit for submitting comments be extended or the draft be circulated, more widely this time, after the lifting of lockdown across the nation, so that effective public consultation can take place.

2. Reducing time period for written responses by public is a step backwards

Under Rule 3.1, the notification provides that the members of the public shall be afforded a time period of twenty days for submitting their written response to the public hearing as opposed to the current time period of thirty days under the 2006 notification.

Principle 10 of the Rio Declaration reads as: “Environmental issues are best handled with the participation of all concerned citizens”. ^[iii]

Even Brian Clark has emphasized that, “the input of the public reflects a better understanding of the choices involved than the vote of an elected official who does not have the time to study each issue in depth”.^[iv]

As enunciated in Principle 10 of the Rio Declaration as well as has been reiterated by many scholars, public participation forms an important cog in the wheel in the entire process for getting environmental clearance. Reducing the time limit given to the public for submitting their written responses is actually step backwards. Though the legislature must have introduced it with a noble intention, that of reducing the time limit for the entire process, public hearing is clearly not the appropriate avenue for reduction of timelines. Instead, the time can be reduced for some approvals or authorizations that are required from the side of the bureaucracy. But, putting the burden on the public to give swift and prompt responses is not a reasonable expectation. The public must be given sufficient time to formulate its opinion and submit it in the form of a written response. Ultimately, it is they who are going to get directly affected by the project and therefore they would have to bear the brunt of taking a hasty decision.

Therefore, before the new EIA framework is adopted, the Ministry of Environment, Forest and Climate Change must contemplate restoring the original time period of thirty days given to the public for submitting their written response.

3. The provision for Post-Facto Approvals is contrary to established principles of law

Rule 22 of the draft EIA Notification, 2020 provides that in case a case of violation is identified, the situation shall be analyzed by the Appraisal Committee. Further, if the response of the Appraisal Committee is positive, then the project may be green lighted by formulation of a remediation plan, assessment of resource damage and resource and community augmentation plan.^[v] Sub-rules 8 and 9 also provide for submission of late fee by the project proponent. This is in complete contradiction to the existing framework, under which cases of violation are dealt with stringent and there is no scope for rectification of the offence with remediation plan, or payment of late fee.

This is in effect a provision for post-facto approvals which is a blatant violation of the precautionary principle and defeats the very purpose of an EIA framework. Even the Working Group of experts constituted by the UNEP in 1987 has enunciated as one of their 13 principles that any framework for EIA must operate “prior” to the beginning of the project.^[vi]

On 1^st April, 2020, the Supreme Court in Alembic Pharmaceuticals Limited v. Rohit Prajapati & Ors.,^[vii] has clearly that no retrospective approvals can be given in matters of environmental clearance. In the instant case, the Ministry had issued a circular and extended the time limit for procuring EC for certain projects that had already begun construction.

“The concept of an ex-post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA notification dated 27 January, 1994. It is detrimental to the environment and could lead to irreparable degradation. The reason why an ex post facto EC 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.” ^[viii]

The court placed reliance on its previous ruling in the matter of Common Cause v. Union of India^[ix].

The effect of these recent rulings is that the previous trend in law in which the courts upheld ex-post facto environmental clearances^[x] merely for the reason that the industry had begun operations or massive construction work was already being undertaken and ordering the closure of such activity would be contrary to the ends of justice is now being overturned. 

In fact, of late, courts and tribunals at every stage of the hierarchy have with considerable amount of unanimity opined that post facto environmental clearances are against the spirit of environmental law.

For example, in Puducherry Environment Protection Association v. The Union of India the Petitioner challenged notification issued by government of India by which union of India had made provision for grant of ex post facto environmental clearance for project proponents, who have commenced, continued or completed projects without obtaining clearance under Act. The Madras High Court held that:

“There can be no doubt that the need to comply with the requirement to obtain environmental clearance is non-negotiable as it goes against the precautionary principle.

The question is whether an establishment contributing to the economy of the country and providing livelihood to hundreds of people should be closed down only because of failure to obtain prior environmental clearance, even though the establishment may not otherwise be violating pollution laws or the pollution, if any, can conveniently and effectively be checked. The answer necessarily has to be in the negative as ex post facto clearance takes away scoping and the resultant EIA.”

Even the National Green Tribunal had way back in 2014 held that, “The law does not visualize such examination post-commencement and upon completion of the project, in relation to the covered projects and activities. The importance of conducting an exhaustive EIA before any project is granted Environmental Clearance has been acknowledged internationally. If post facto approvals were to be allowed, even the most illegal and irregular projects, which are completely violating the Environmental norms, may have to be legalized and legitimized, which would be contrary to law, would even defeat the potential penal consequences prescribed under the Act of 1986 and thus, would be unable to prevent damage to environment and ecology.”^[xi]

Therefore, it is a well established principle that ex-post facto environmental clearances go against the spirit of environmental law in general and the EIA framework is particular. Since the ratio laid down by the Supreme Court is “law” under Article 142 of the Constitution of India, the draft EIA Notification, 2020 is contrary to law and thus liable to be struck down to that extent on account of being unconstitutional.

4. Increase in land for projects which do not need EIA approval from 20,000 to 1,50,000 square meter a retrograde step

Entry 42 of the Schedule of the draft EIA Notification, 2020, which deals with “Building, Construction and Area Development Projects” has been proposed to be amended to increase the minimum threshold area for mandatory requirement of prior Environmental Clearance from the previously existing 20,000 square kilometers to 1,50,000 square kilometers. This means that building and construction projects which seek to cover an area of less than 1,50,000 square kilometers shall not require a prior environmental clearance and shall therefore be outside the purview of the notification.

This is also contrary to the aim of sustainable development as it seeks to exclude a larger number of new projects from the purview of the notification. However, with the increase in the number of new projects, the aim must be to bring more and more of them within the purview of the notification so that a comprehensive assessment of the adverse impact they would be having on the environment could be done.

5. Reducing the Number of Compliance Reports affects efficiency of EIA Framework

Rule 20 (4) of the draft EIA Notification, 2020 states that, “The yearly compliance report shall be submitted, each year, from the date of grant of prior-EC, till the project life, to the Regulatory Authority concerned.”

This is a change from the requirement under the existing framework to submit a compliance report after every six months, thus mandating two compliance reports every year.

6. Empowering the Central Government to declare certain projects as “Strategic” could have severe adverse implications

Rule 5 (7) of the draft EIA Notification, 2020 provides that when the Central Government declares any project as strategic, “no information relating to such projects shall be placed in public domain.”

Such projects are also exempted from the scope of public consultation. This, the author feels, is an instance of excessive and unguided delegation of power which must be done away with.

In Rojer Mathew v. South Indian Bank Ltd, the Supreme Court observed that excessive delegation of powers is not permitted by the legislature and gave the gave the reason that, “There being no guidelines, unfettered and unguided powers have been vested in the delegate and, therefore, in my opinion, there is excessive delegation. What can be delegated is only the task of subordinate legislation which is by its very nature ancillary to the statute which delegates the power to make it and which must be within the policy and framework of the guidance provided by the legislature.”^[xii]

In Anil Kumar Sharma vs. Indian Institute of Technology Roorkee, “Discretion’ should be exercised according to the rules of reason and justice, not according to private opinion: according to law and not humour. It should not be arbitrary, vague, and fanciful, but legal and regular.”^[xiii]

7. Legislature should not fear that increase in regulation would be viewed as green-tapism

One of the reasons why the government must have thought it fit to ease the regulatory norms, could have originated from its apprehension that if they do not take the necessary steps, corporates would scrutinize their actions as green-tapism. However, this fear is not well-placed. An increasing number of corporates today are in favour of environment regulation and are themselves focusing on reducing their carbon footprint. A lot of industries have themselves increasingly come to realize that the only way to go forward is to go green. For example, auto makers have described compliance with BS-VI norms as an opportunity to expand and grow.^[xiv] Similarly, the world’s leading steel and mining company, ArcelorMittal has pledged to reduce its carbon emissions by at least 30% till 2030 and to go carbon neutral by 2050.^[xv]

Moreover, even foreign investors like Facebook, Amazon and Domino’s, before investing in Indian companies like Reliance Industries, Tata Power and ONGC are now first demanding proof of compliance with EIA Regulations.^[xvi]

Therefore, even other industries should follow-suit and instead of being apprehensive of increased environmental regulations, should look at it as an opportunity for future growth. This is because, cutting down green-tapism may bring short-term profits, and it has inherent risks for the long term. Relaxation in EIA norms should also not be seen as a welcome step and therefore the corporates should themselves show their willingness to comply with such norms and even the legislature would therefore not believe that reducing compliance will enable them to gain support of the corporates.

Conclusion and suggestions

As is evident from the seven point critique done above, the draft EIA Notification, 2020 needs a complete overhaul before it can be implemented with finality. Some of the provisions are evidently a step in the backward direction, for example, reducing the time given to the public to submit their response, increasing the area threshold for construction projects so that more projects fall outside the purview of the notification, reducing the number of compliance reports. These measures are clearly in favour of the profit-minded multinational corporations who are only interested in the scale of their project and have little to do with environmental concerns.

Secondly, the draft EIA Notification, 2020, the author believes is an excessive delegation insofar as it empowers the Central Government to declare certain projects as “strategic” without having to give any reasons with the result that certain projects shall fall outside the purview of the notification. Additionally, the public shall not have access to any information on such projects. This gives mammoth powers to the Central Government to abuse its discretion. It is an established principle of administrative law that all executive decisions must be reasoned and especially so if they adversely affect the fundamental rights of citizens. Right to a clean and healthy environment is clearly a fundamental right under Article 21. Resultantly, the provision for empowering the Central Government with such excessive powers is unconstitutional and the author believes will not stand the test of judicial scrutiny if challenged before the court. 

Lastly, and most importantly, the notification is in direct contradiction to environmental law principles well established by judicial precedents, for example, the principle that post facto environmental clearances do not resonate with the scheme of EIA as they defeat the basic purpose of the same.

It seems that the intention of the authorities to have circulated this framework for public comments during the time of lockdown is a sly attempt at getting a heads up from the public for this notification with such objectionable provisions, considering that there’s not much resistance that could have come from the public in these unprecedented times of uncertainty.

Though the above is true, there are indeed some provisions in the suggested provisions worthy of being retained. These include the detailed definition of every term, introduction of the Technical Expert Committees, introduction of Accredited EIA Consultant Organisation (ACO), introduction of online mode of submissions, reducing the time-period for grant or rejection of  EC, introduction for provision for appeal etc.

In addition to these provisions, some additional provisions which are currently lacking under the draft EIA Notification 2020 and may be considered to be added before final imposition are as under:

• Strict Timelines for Getting EC and Penalty provisions in case of delay- Delay in getting EC unnecessarily stalls projects and more often than not, there is a delay in granting the approval. Therefore, the legislature may consider incorporating a provision for deemed approval, in that the applicant may consider the approval to have been given in case the authorities delay the same beyond a certain time limit. Such deemed approvals were part of the very first EIA framework in 1994, but were done away with later. Alternatively, penalty provisions could be incorporated which mandate that the authority pay compensation to the applicant for every day that the delay is caused beyond a pre-fixed reasonable time period. Bureaucratic delay in granting environmental clearance must be brought down. This would ensure timely disposal on applications for environmental clearance.
• Mandate on States for wider circulation of the Notification- Currently, the draft EIA lacks any provision which obliges the State governments to publicize the same within their territories. This is a blatant violation of Principle 10 of the Rio Declaration which stresses on the need for as wide public circulation as possible. In order to achieve, the final notification, could include a provision mandating the States that they must circulate the notification in their territories within a week from the date the Central Government publishes it in the official gazette.
• More Clarity on New Concepts- The draft EIA Notification proposes to introduce several new concepts which are alien to the current framework, for example, an Environment Permission, community resource augmentation plan, Accredited EIA Consultant Organisation etc. It is therefore suggested that before the final notification, the Ministry provide some further clarity.

References

^[i] Rule 9 (2), Draft EIA Notification, 2020.

^[ii] Rule 4 (i), EIA Notification, 2006.

^[iii] Principle 10, Rio Declaration on Environment and Development, 2020.

^[iv] Brian D. Clark, Improving Public Participation in Environmental Impact Assessment, 20 (4), Built Environment 294, 307, (1994).

^[v] Rule 22 (2), Draft EIA Notification, 2020.

^[vi] Supra, 1.

^[vii]Alembic Pharmaceuticals Limited v. Rohit Prajapati & Ors., MANU/SC/0353/2020.

^[viii] Id.

^[ix] Common Cause v. Union of India, (2017) 9 SCC 499.

^[x] Lafarge Umiam Mining Private Limited v. Union of India, AIR 2011 SC 2781.

^[xi] S.P. Muthuraman v. Union of India, MANU/GT/0116/2015.

^[xii] Rojer Mathew v. South Indian Bank Ltd., 2019 (15) SCALE 615.

^[xiii] Anil Kumar Sharma v. Indian Institute of Technology Roorkee, MANU/UC/0357/2019.

^[xiv] Hormazd Sorabjee, BS-VI Regulations in India Will Give Us  Huge Advantage, The Hindustan Times, February 24, 2016. (July 4, 2020, 8:37 PM) https://www.hindustantimes.com/business/bs-vi-regulations-in-india-will-give-us-huge-advantage/story-FmYSx1vKgDtNIJHqwmgiZN.html.

^[xv] Climate Change, ArcelorMittal (July 5, 2020, 11:32 AM) https://corporate.arcelormittal.com/sustainability/approach/climate-change.

^[xvi] Urmi Goswani, Investors are now asking Big Companies to Disclose Environmental Impact Report, The Economic Times, June 11, 2020.

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