This article is written by CS Divya Shetty, pursuing LLB from New Law College, Mumbai.

Introduction

Ever since the publication of the draft EIA (Environmental Impact Assessment) Notification 2020 in the public domain, it has received a huge dissent by the citizens, NGO’s and various environmentalists. The 83 pager notification will be replacing the earlier notification which was issued in 2006. Although the proposed changes in the EIA are meant to ease and expedite the process of environmental clearance, it can have some serious deleterious effects on the environment and society if left neglected. The changes were proposed during the times of COVID-19 pandemic and lockdown situations in March, where it was difficult or impossible for people to offer their views and suggestions in the stipulated time period of 60 days declared by the government. The Timeline now has been extended to 11th August 2020 for hearing public comments and objections. In this article, the purpose of issuing the draft notification, the proposed changes and its impact on the environment are discussed in detail. 

What is EIA and Draft EIA Notification 2020?

Briefly, EIA (Environmental Impact Assessment) is the process by which an impact analysis of a proposed project is done keeping in mind its socio-economic benefit at the same time ensuring environmental protection and sustainable development. Each project which wants to undertake the activities mentioned in the EIA laws has to mandatorily undergo the EIA process and obtain environmental clearance from the Government. 

The Ministry of Environment, Forest and Climate Change published the Draft ‘EIA Notification, 2020’ dated 23rd March 2020 on 11th April 2020 in the official gazette of India. This notification will be replacing the EIA notification which was issued in 2006. 

What is the purpose of issuing this notification?

Through this notification, the Central Government seeks to establish a transparent and expedient process for environmental clearance. This will be done by the implementation of online systems and standardization of various processes. Also, the government believes that there is a need to lay down a procedure to monitor and regulate the violation of projects that are being carried out without environmental clearance at an earlier stage rather than getting noticed in the future which can be detrimental to the environment.

In a meeting with the 15th Finance Commission, the Environment Minister, Prakash Javadekar had told that the ministry of environment will soon be coming out with an amendment to the Environmental Impact Assessment Notification with an aim to enhance the ease of doing business. Therefore, on reading the notification, one can observe that the timeline for the process of obtaining EC (Environmental Clearance), a public hearing has been reduced in order to facilitate a speedy mechanism for obtaining EC and setting up of industries.

What are the changes proposed in the draft notification that can have a possible harmful impact on the environment?

The Draft notification propounds various amendments in the EIA notification pertaining to a recategorization of projects and their stages of obtaining clearance, an exemption for certain industries from the public hearing, treatment of violating projects, Compliance requirements and so on. Some of the proposed changes which have created a matter of concern amongst various environmentalists and public at large are as below:

Limitation on Public Involvement

The earlier notification that provided a period of thirty days for the public to submit their responses to the government on the EIA Report of any project that wants to obtain environment clearance has now been reduced to twenty days. For any democratic country, engagement of the citizens of the country plays a very important role in formulating any policy. This can be a concerning issue where the public will not get sufficient time to read and give their suggestions, views or objections for any project which can have possible harmful effects on their surrounding and environment. By reducing the days in which public suggestions can be sought, the process of Public hearing will lose its significance altogether.

Post-facto clearance for violating projects 

Now, this proposed change is completely contradictory to the rule of the “Precautionary Principle” of Environmental Law. Any project that violates and operates the project without obtaining the environment clearance can now get environmental clearance by submitting remediation plan and natural and community resource augmentation plan corresponding to the 1.5/2 times the ecological damage assessed and economic benefit derived due to violation and by paying some amount of penalty as prescribed in the notification. This means a violating project can now continue with its operation by just submitting a remediation plan and payment of some penalty to the government. In March 2017, a notification was issued in this regard following which the violators were granted a one-time option or chance by providing a six-month window to regularise the operations that they started without obtaining the clearance by paying the penalty to the Government. This will now be made as a permanent option to the violators to regulate the operations. 

A question which arises here is will penalizing and submission of a plan would reverse the damage that the violating project may have caused to the environment and society? In the six- month window given by the 2017 notification, one of the Companies to opt the option was LG Polymers. In an affidavit submitted by LG Polymers in 2019 to the government, it had accepted that it was operating without obtaining any environmental clearance. The perilous Vizag gas leak in LG Polymers Visakhapatnam Unit which took a death toll of around 12 people and sickened 100 of them was operating without environment clearance. This is one of the instances where the government should reconsider giving clearances to environment violators keeping in mind the livelihood which is exposed to such danger. 

In an order passed by the Supreme Court on 1st April 2020 in Alembic Pharmaceuticals Ltd. Vs Rohit Prajapati & Ors, it held that the Ex post facto clearances are contrary to the law. An “ecologically rational outlook” must be adopted towards development and given the “social and environmental impacts of industrial activity, environment compliance must not be seen as an obstacle to development but as a measure towards achieving sustainable development and intergenerational equity. Environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.

Monitoring of environmental clearance: Compliance report

As a part of the Post environment clearance monitoring process, it was mandatory for the project proponent to submit half-yearly compliance reports in respect of the stipulated prior environmental clearance terms and conditions. In the new notification, the submission has to be done only once in a year i.e. 30th June on the online portal. The regulatory authority can ask the report at any frequent intervals as it may deem fit. By reducing the compliance to only once a year, the monitoring of the projects will be replaced by a mere reporting compliance by the project proponents. Any possible damage by the project to the environment which could be assessed at an earlier stage will not be possible now.

Exemptions to certain activities from public hearing

Public consultation on EIA reports will be exempted for some activities like the modernization of irrigation projects, all projects concerning national defence and security or involving other strategic considerations as determined by the Central Government, all the off-shore projects located beyond the 12 Nautical Miles to name a few. Further, no information relating to projects concerning national defence and security or involving other strategic considerations which will be determined by the Central Government will be placed in the public domain. This means that there would be less transparency or secrecy in the process of EIA process of these projects and public participation will be restricted or will not exist.

Why should one be concerned about these changes and their possible impacts?

We are all aware of the tragedies in the past years that have taken so many lives and have had an irreversible impact on the environment. To name a few are – the Vizag gas leak by LG Polymers in Visakhapatnam, the massive fire in oil wells of Oil India limited located in Assam, the Bhilai Steel Plant Blast, the Bhopal Gas tragedy and many more. One of the major realisations after all these incidents should be a reconsideration of EC laws by making it more stringent and establishing such mechanisms for monitoring of hazardous industries at more frequent intervals. The recent Vizag gas leak is a live example of a project which violated the EC laws and opted for the option of the six-month window provided by the government. On the contrary, we can see that the new law which is drafted is making the clearance process more speedy by excluding public involvement and giving a ‘chance’ for the enemies of the environment who are violating the laws.

Mahatma Gandhi once said- “The earth, the air, the land and the water are not an inheritance from our forefathers but on loan from our children. So we have to hand over to them at least as it was handed over to us.” ‘Sustainable Development’ which is one of the principles of Environmental Law is slowly losing its importance. The new draft law which though encourages more investment, ease of doing business and economic development is also coming at a cost of loss of environmental resources, habitat and livelihood of thousands of people. Self-reliant India is being pressed in the recent times and many laws have been amended to make the procedures for starting business operations smoothly and in a hassle-free manner, however, making environment laws and compliance less stringent and ‘allowing’ the violators to continue with operations while the damaging environment will instead lead to the unsafe and life-threatening environmental situation in the coming future. 

What can the citizens do in order to prevent these changes from coming into effect?

The draft notification was open for public comments for a period of sixty days. The same was extended by the Government to June 30, 2020, on receiving representation from various stakeholders due to COVID-19 situation prevailing in the country. A Petition was filed in the Delhi High court Vikrant Tongad v. Union of India on hearing of which the court on June 30, 2020, extended the timeline for receiving public comments and suggestions on the draft notification till 11th August 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 [email protected].

Conclusion

The two main principles – “precautionary principle” and “Sustainable Development” which forms the basis of environmental laws will be seriously infringed if the proposed changes in the draft are brought into effect. Ease of doing business, self- reliant India are evidently of utmost importance in the current situation but this should not come at the cost of our environment and lives of people. The EIA law should not be seen as a hindrance but should rather be considered as a prerequisite check by the business so that they are carrying on the operations without causing harm to the natural habitat and the society. 

It has been rightly said by Richard Rogers – The only way forward, if we are going to improve the quality of the environment, is to get everybody involved. The Citizens of the country and the people in the vicinity areas who are most vulnerable to the project must be given a fair chance with adequate timelines for hearing. Therefore, it is the need of the hour that the government should reconsider the proposed changes in the draft and make the clearance process more pellucid by encouraging more public participation.

References

• http://egazette.nic.in/(S(5bgymtpyxiiqzcefwzcxjakm))/SearchMinistry.aspx
• https://economictimes.indiatimes.com/news/economy/policy/environment-ministry-to-amend-eia-norms-to-help-businesses/articleshow/76138522.cms?from=mdr
• https://indiankanoon.org/doc/135723482/
• https://indiankanoon.org/doc/170177749/

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