This article is written by Sonia Shrinivasan.
Table of Contents
The term Environmental Impact Assessment (EIA), in its most basic sense, can be broken down for the understanding of a layman, as the gauging or estimation of the ‘Impact’ any project, program, or policy may have on the surrounding ‘Environment,’ during or after its implementation. It is considered an effective tool to ensure sustainable developmental planning and minimize any irreversible or prolonged damage to the environment. While the aim of conducting such assessments remains uniform globally, the methods and practices might differ due to different environmental legislations prevailing in other parts of the world.
The International Association for Impact Assessment- an International Authority comprising of professionals involved with impact assessments- both socially and environmentally, defines EIA as “the process of identifying, predicting, evaluating and mitigating the biophysical, social, and other relevant effects of development proposals prior to major decisions being taken and commitments made.” The entire EIA procedure can be attributed as the outcome of the 1992 Rio Declaration, which emphasized the need for direct public participation in the decision-making process pertaining to environmental issues.
The origin of EIA can be traced to the highly recognized and well-established ‘Precautionary Principle of environmental jurisprudence in India as well as around the world. Since any harm done to the environment is mainly irreversible, it is always better to minimize it rather than remedy it. All environment-based legislations aim to balance sustainable development and environmental protection and recognize the importance of such large-scale projects.
Applicability in India
EIA was first introduced in 1978 with regard to the various river valley projects all over the country and later expanded to include various other developmental procedures in its scope. EIA is now mandatory for over 30 classes of projects.
The Environmental Protection Rules, 1986 warrant for the imposition of certain restrictions on the construction/ expansion/ modernization of specific projects without prior approval from the Central, State, or Union Territory level Environmental Impact Assessment Authority (EIAA) constituted under the Environment Protection Act, 1986.
Categorisation of projects
The rules categorize the projects into two categories- A and B on the basis of the magnitude of their scale and impact on the natural and artificial resources. The projects belonging to Category A require approval from the Ministry of Environment and Forests on behalf of the Central Government, on the advice of an Expert Appraisal Committee (EAC), constituted by the Central Government for this specific purpose; eg. Construction or Expansion of Ports, harbours, airports, nuclear power, and related projects, Primary metallurgical industries (iron, steel, copper, etc), individual projects, etc. Projects and Activities falling under Category B require the approval of a State EIAA, based on the advice of a State Expert Appraisal Committee (SEAC), constituted under the said notification.
The Appraisal Committees at the Central and the State levels are in charge of screening and determining the scope of the projects and work on the principle of ‘Collective Responsibility. While the EAC comprises professionals from varied disciplines along with experts in fields of Environment Quality, Project Management, Risk Assessment, Forestry, and Wildlife, among other fields, the SEAC is constituted by the Central Government on similar lines, in consultation with the State Government.
The Central Government is empowered to constitute a common SEAC for more than one state and Union Territories, with the prior concurrence of the concerned state/UTs to save administrative costs.
The EAC and SEACs are constituted for a term of three years each and are supposed to meet once every year.
Stages of obtaining the environmental clearance
The EIA Notification, 2006 provides for a 4-stage procedure for obtaining environmental clearances.
- SCREENING: Applicable for those classes of projects falling into Category B, the stage of Screening involves proper and methodological screening by the SEAC for determining whether a project requires further detailed study into the environmental factors, depending on its nature, location coupled with other aspects, before furnishing an EIA Report necessary for obtaining a clearance. Based on whether such an EIA Report is required for projects, they are further classified into two categories- B1 and B2, where the former mandatorily requires an EIA report, and the latter does not.
- Projects included in the B2 Category include offshore and onshore oil, gas and shale exploration, inland waterway projects, aerial ropeways in ecologically sensitive areas, small and medium mineral beneficiation units, specified building construction, and area development projects, to name a few.
- SCOPING: The EAC and SEACs with regard to projects falling under categories A and B1 respectively, devise detailed Terms of Reference, addressing the environmental concerns for the formation of a detailed EIA Report; which are formulated after conducting site inspections and taking into account the details furnished by the applicants and shall be conveyed to the applicants within 60 days from the date of submitting the application. These Terms of Reference are to be displayed on the website of the Ministry of Environment and Forests (MoEF) and the concerned SEAC.
- PUBLIC CONSULTATION: As the name suggests, it involves addressing the concerns of those affected locally or who have a considerable stake in the environmental impact of the project or activity in question by conducting a public hearing (organized by the Pollution Control Boards of different states and Union Territories) and taking written responses from the concerned stakeholders. However, no such public consultation is required for the class of projects belonging to Category B2, and certain exceptions expressly provided under Clause 7(i) of the Notification, like the expansion of Roads and Highways, which do not involve any further acquisition of land.
- APPRAISAL: It refers to the detailed scrutiny by the EAC and SEACs of the application, EIA Report, Outcome of public consultations, and the public hearing proceedings within sixty days of the submission of the final EIA Report. After due deliberation, the concerned Appraisal Committee can either make recommendations to the regulatory authority for the grant or rejection of the environmental clearance sought, with reasons for the same.
In case of projects not involving obtaining EAI reports, Scoping, and Public Consultations, the appraisal is carried out on reports based on findings during the site visits, and the same shall be placed before the competent authority within 15 days for its perusal.
For projects seeking clearances for their expansion and modernization shall be considered by the concerned appraisal committee for granting/ rejection of the environmental clearance, in accordance with the same procedure mentioned above, within 60 days from the date of application.
Monitoring of environmental clearances
The MoEF and State level Impact Assessment Authorities are obligated to place the granted environmental clearances in the public domain on their respective government portals, and copies of the same need to be submitted to the heads of the concerned local bodies panchayats or municipal authorities.
It is mandatory for the proponents of the project to submit the compliance reports to the concerned regulatory authorities, after every six months, on 1st June and 1st December, every year.
EIA amendment, 2020
The draft of EIA 2020 (Amendment) was put up for public discussion and consideration by the government last year. The government proposed certain changes to the 2006 Notification in order to make the entire process transparent and applicant friendly, which were described to be ‘diluting’ the existing environmental regulations and shrink the scope of EIA, by environmentalists in and around the country.
The new draft provides for the definition of many terms related to EIA, reducing ambiguity in the existing law to a certain extent.
The new rules provide for an ‘ex post facto clearance’ route under which certain projects can go ahead with the construction without obtaining the necessary clearance, subject to the payment of fines in cases of violations, subsequently. Such clearances in past have been termed to be illegal by the courts in various decisions, most recently in April 2020, in the case of Alembic Pharmaceuticals Ltd v Rohit Prajapati, the Apex Court while condemning and striking down an ex post facto clearance, observed that it is in derogation of environmental jurisprudence and an ‘anathema’ to the EIA Notification, 1994. Referring to the judgment of Common Cause v Union of India, the court opined that such clearances could lead to irreparable degradation of the environment.
The period of time given to the public to file its concerns regarding the project has been reduced to 20 days, as against the 20 days provided by the 2006 notification. A new category of projects has been instituted under the head of ‘Projects Involving Strategic Considerations,’ which have been kept outside the purview of public consultations. Once a project is labeled to be strategic, no information regarding it shall be made public as a matter of right. Any violations taking place can only be reported suo moto by the appraisal/ regulatory authority, the government, or the proponents themselves.
Monitoring requirements of environmental clearances have been relaxed by allowing the submission of annual compliance reports instead of the previously mandated half-yearly ones, increasing the risk of any hazardous implication- health-wise, environmentally or socially, going unnoticed.
Understanding the application
While the entire process of obtaining the necessary environmental clearance can be too cumbersome and lengthy to understand all at once, let us try and do the same with certain illustrations.
- An industrialist wants to set up a factory dealing with leather and its processing. What steps should he take to obtain the mandatory Environmental Clearance before starting with the construction of this factory?
Answer: As per Schedule 1 of the EIA Notification, industries involved in Skin/hide processing, including the tanning industry, mandatorily require an Impact Assessment in order to obtain a clearance. Based on whether the factory is to be built in an industrialized area, the said project of establishing a leather factory will be categorized into A or B.
When the factory is to be built outside the limits of an industrialized area.
In this case, the said project will fall into Category A and would require approval from the Ministry of Environment and Forests on behalf of the Central Government, on the advice of an Expert Appraisal Committee (EAC), constituted by the Central Government.
In this scenario, since the approval is mandatory, there shall be no screening involved, and the project would be sent for immediate scoping.
When the factory is to be built in an industrial area.
In this case, the said project will fall into Category B and require the approval of a State EIAA, based on a State Expert Appraisal Committee (SEAC).
In this case, the project would be subject to the process of screening first to determine whether the project falls into Categories B1 or B2- depending on various ecological and environmental factors.
For the sake of understanding this illustration, let us assume that the project falls in the B1 Category, hence mandating approval from the SEAC to obtain a clearance.
With this, the project moves on to the subsequent stage of scoping.
Now, the subsequent stages shall remain the same for both- i) and ii).
The stage of scoping involves the concerned Assessment Authority forming a detailed EIA report based on the devised terms of reference, formulated based on on-site inspections and visits, consideration of the land in question, and the neighbouring surroundings.
The application for the environmental clearance shall be then subject to a public hearing organized by the local Pollution Control Board, wherein all the stakeholders- Affected people, Social or Environment activist groups, Interested public, etc. are given a platform to voice their concerns regarding the construction and operation of such a factory i.e., living conditions once after the factory starts running, discharge of the said effluents into the local water body and the impact on the area in general.
Taking into account all the details of this hearing, coupled with the observations of the Assessment Authority, the concerned Appraisal Committee makes the final call whether to grant or refuse the Environment Clearance sought by the industrialist. The Committee may or may not suggest changes in the proposed plan in order to grant the same.
In case the clearance is granted, the same shall be uploaded on the MoEF’s website, and the clearance along with other project-related documents shall be forwarded to the concerned Municipal Authority/ Local Body, and the industrialist is compulsorily obligated to submit compliance reports to the authorities annually, in furtherance of the conditions on which the clearance was granted.
Now, let us assume that in the same example, where the project built in an industrial area was categorized in Category B, after the stage of screening was put into Category B2 and as the Notification mandates, does not require an Assessment Report. Here, the stages of Scoping and Public Consultation do not come into the picture. The appraisal will be carried out on reports based on findings during the site visits, which will be placed before the competent authority within 15 days. The Appraisal Authority may or may not suggest changes while refusing or granting the said clearance.
As discussed earlier, in case the clearance is granted, the same shall be uploaded on the MoEF’s website, and the clearance along with other project-related documents shall be forwarded to the concerned Municipal Authority/ Local Body, and the industrialist is compulsorily obligated to submit compliance reports to the authorities annually, in furtherance of the conditions on which the clearance was granted.
The deadly gas leak at the LG Polymer Plant in Vizag in May last year, which took as many as twelve lives, along with harming hundreds, was found to be operating without environmental clearances for years; the already deteriorating and ecologically sensitive region of the Western Ghats has been bombarded with proposed projects which would lead to a significant loss of green cover, compromising the sustenance of River Cauvery in the region- are certain occasions which serve as reminders for the need strengthen the existing environmental regulations for the benefit of the public and preservation of the environment for future generations.
As has been the aim and intention of environmental legislation throughout the world and in India, to promote and uphold the balance between development and preservation of the environment, it becomes increasingly important to realize the importance of environmental impact assessment towards achieving the goal of achieving the goal sustainable development.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join: