This article is written by Abhinav Rana, from University School of Law and Legal Studies, GGSIPU Dwarka. This article deals with the Environment Impact Assessment 2020. 

Environment Impact Assessment is an important process for assessing the potential environmental impact of a proposed project. Make a scientific estimate of the potential impacts of a project such as a mine, irrigation dam, industrial unit, or waste treatment plant. A process in which people’s views are taken into account to give final approval to any project or development activity. Basically, it is a decision-making tool for deciding whether the project will be approved or not.

According to the government, the new notification was submitted to make the process more transparent and modern through the implementation of an online system, greater authorization, streamlining and standardization of the process. However, the environmentalist said the draft would further dilute the Environment Impact Assessment process.

The roots of the Environment Impact Assessment concept are in the USA. Adopting neoliberal policies in the 1970s, the United States adopted environmental laws, including the scientific evaluation and public participation, when making important environmental decisions.

Introduction

In India, the Environment Impact Assessment process was established by the 1970 National Environmental Policy Act. Most of the countries in the world have implemented Environment Impact Assessments. On the one hand, it acts as a key to controlling the activities of private organizations. The government made changes in the regulations through temporary changes. An Environment Impact Assessment provides a scientific estimate of the potential impacts of a project such as a mine, irrigation dam, industrial unit, or waste treatment plant. In addition, there is a provision for public participation in the rules, including a public hearing where local people and interested parties can comment and object based on the draft Environment Impact Assessment report prepared by experts for the project.

In addition, the notice period for the public hearing was reduced from 30 to 20 days. This will make it more difficult to review the draft Environment Impact Assessment report; when it is not widely available or offered in this regional language.

Environment Impact Assessment  Notice 2020 excludes public reporting of violations and non-compliance. Instead, the government will only get the awareness of reports from the infringer, the government official, the Evaluation Committee or the Regulatory Authority. Such projects will then be evaluated and reported by the violator (and not an affiliated agency), including further ecological damage remediation, but can be approved on circumstances, although the Central Pollution Control Board guidelines should be used. In short, the new draft rules may appear to support the interests of the project owner by reducing public consultation, accepting flawed and erroneous Environment Impact Assessment reports due to external influences, and ignoring the non-renewable nature of resources. After Indira Gandhi’s return from the Stockholm Declaration in 1972, Indian environmental law saw a new era. Several new laws emerged, such as the Wildlife (Conservation) Act, 1972, the Water (Pollution Prevention and Control) Act, 1974, the Forest (Conservation) Act, 1980 and so on.

An important addition to this is the 42nd Constitutional Amendment introducing Articles 48A and 51A (g), both of which advocate for the protection and improvement of the environment. Following this, following the infamous Bhopal Gas Tragedy, the Environmental Protection Act of 1986 was enacted under Article 253 of the Constitution and became an umbrella law for environmental protection in India. Environment Impact Assessment regulations in India originate from Section 3 of this legislation. Section 3 empowers the Union government to take measures to protect and improve the environment. However, the new draft is absolutely against the essence of this chapter and the Law as a whole. This claim can be backed up by diluting the public engagement process, allowing ex-post-facto permits, removing many sectors from the Environment Impact Assessment process and, most importantly, allowing environmental violations to be monetized.

About

In the era of hyper industrialization, where countries are anxiously formulating development strategies, following the track of sustainable development has become next to impossible. To prevent industrialization at the cost of our environment, Environmental Impact Assessment (Environment Impact Assessment) was formulated to maintain harmony between environmental wellbeing and economic development. Environment Impact Assessment became a process to be mandatorily followed by all developmental activities under the Environment Protection Act 1986. Munn defined Environment Impact Assessment in 1979 as a tool “to identify and predict the impact on the environment and on man’s health and well-being of legislative proposals, policies, program, projects and operational procedures. This endeavour is an attempt to mitigate potential threats faced by mother nature due to ignorant development strategies. A nod is given to a proposed project in the form of ‘Environmental Clearance’ (EC) which is granted once the project is not regarded detrimental to the environment after following the due procedure of Environment Impact Assessment.

The draft Environment Impact Assessment notification released on 23rd March, in the official gazette on April 11, attempts to revamp the Environment Impact Assessment notification of 2006. The notification unravels its purpose in the opening paragraph as “imposing certain restrictions and prohibition” on development projects so that it “makes the process more transparent and expedient.” But on giving it a thorough reading, the notification has invited severe criticism as it has further diluted the provisions opening the doorway for violation of environmental laws and exploitation of the environment.

Public consultation is one of the most vital steps in the Environment Impact Assessment procedure through which the concerns of the people being possibly affected by such proposed development projects are given a voice. The reduction of the time period of public consultation from 30 days to 20 days within which the public can send their responses and concerns is unfair and inadequate as the document contains information requiring a legal understanding of issues which cannot be comprehended by the general public in a short span of time. The main purpose of Environment Impact Assessment is effective participation of the people potentially affected by the proposed project which will be hampered on the reduction of the time period.

The notice creates a separate space for “all projects concerning national defence and security or other strategic issues determined by the Central Government” and “no information about such projects can be made publicly available” by exempting them from the eyes of the general public. Where the 2006 notification excludes public consultation on matters concerning only national defence, security, or other strategic conditions, this ambiguous provision impedes the transparency of the entire procedure by giving the executive enormous power to interpret “strategic conditions” and projects at its own discretion.

Another major concern is that projects in the B2 category are exempted from public review. The 2006 notification classified B projects as B1 and B2 after being reviewed by the State Level Expert Review Committee (SEAC) to determine whether an Environmental Impact Assessment assessment is required for EC award. Those who needed an Environmental Impact Assessment came under B1 and the rest under B2. This vital process is known as scanning. However, the new draft frees projects in the B2 category from the entire Environmental Impact Assessment process, namely screening, scoping, public consultation and SEAC evaluation. Only building and construction projects specified in the schedule will be placed before the evaluation committee, and such projects only require an Environmental Management Plan to achieve the EC. However, other projects that are not mentioned in the program are completely exempted from the evaluation and public consultation process. Such drastic changes that dilute the procedure have the potential to have disastrous consequences for the environment. On the other hand, Category A projects will require EC and will be evaluated on the basis of Environmental Impact Assessment reports and public participation.

The alleged notification has also invited criticism for granting post facto approval to illegal industries which have been functioning without obtaining EC. This provision promotes industries to commence their activities without obtaining an EC and get away with paying certain fines. Granting post facto approval will only encourage violations, defeating the precautionary principle and is a huge blow on the principles of sustainable development. Levying fines from such industries is nothing but a fait accompli situation where the damage to the environment is already done and no amount of fine can reverse it. The Supreme Court has itself reiterated in a recent case of Alembic Pharmaceuticals Ltd. V. Rohit Prajapati & Ors on April 1, 2020, that the concept of ‘ex post facto’ Environment Clearance is against the fundamental principles of environmental jurisprudence and the grant of such clearance is against the Environment (Protection) Act, 1986, and hence illegal. The court held that as it is an administrative decision it is beyond the scope of Section 3.” This provision reduces the whole purpose of Environmental Clearance to a mere formality, promoting a casual approach towards the protection and preservation of our environment. It even gives way to negligence which is clearly seen in the most recent case of the Vizag gas leak on May 7, 2020, when the leak of styrene gas killed 11 people and left many injured on exposure. The LG Polymers Plant responsible for such an event was operating in violation of environmental regulations. The alleged plant was working without an EC and was not even appraised. Thus, by bringing in the provision of post-facto approval, the government is promoting a practice unconstitutional and unsustainable in law, ultra vires to the Environmental (Protection) Act, 1986.

In the event of non-compliance of the previously obtained Environmental Clearance, the 2006 notification authorized the regulatory authority to withdraw the EC or take criminal action under the Environmental (Protection) Act of 1986. However, the 2020 notification diluted this provision as well. Currently, in cases of non-compliance, “The Expert Committee will make categorical recommendations to the project owner for the time-based action plan to comply with previous EC requirements, and the compliance of the bank collateral amount deposited as collateral with the SPCB or UTPCC, as the case may be.” In the event of non-compliance, it means that an expert committee will make recommendations for such compliance in accordance with previous EC requirements and deposit the penalty amount for the industry or project in question as security. As noted. Also, the bank guarantee will only be released after the successful implementation of the recommendations. This provision once again contradicts the provisions of the Environment (Protection) Act of 1986, which provide for a wide range of stricter penalties for acts contrary to the provisions of it.

Conclusion 

The Constitution via Article 48A has imposed the duty on every State to “protect and improve the environment and to safeguard the forests and wildlife of the country”. In the case of Subhash Kumar v. the State of Bihar, the Supreme Court stated that Article 21 (Protection to Life and Personal Liberty) includes the right to the enjoyment of pollution-free water and air for full enjoyment of life. The alleged draft is attempting to dilute the existing provisions of the 2006 notification and once it comes into being, it will have the potential to give clearance to highly destructive projects without any careful consideration on human settlements as well as the environment. Thus, the very existence of this draft notification needs to be questioned. Environmental rule of law seeks to strike a balance between human development and the environment. Where Environment Impact Assessment promises to keep a check of preventing industrialization at the cost of our environment, this draft diluting Environment Impact Assessment is severely antithetical and threatens to open the doors to savagery, chipping away the Environmental Protection Laws in our country. Rather than drafting black and white legislation which facilitates the lawbreakers to walk away scot-free, the nation demands robust laws which are sternly implemented to preserve our Mother nature.

References

• https://www.youthkiawaaz.com/2020/05/environmental-impact-assessment-and-its-current-state-of-affairs-in-india/
• https://www.livelaw.in/environment/ex-post-facto-environmental-clearance-unsustainable-in-law-sc-154678
• https://lawsisto.com/legalnewsread/MzgyNw==/Ex-Post-Facto-Environmental-Clearance-Unsustainable-In-Law
• https://www.hindustantimes.com/india-news/vizag-polymer-unit-didn-t-have-environmental-nod/story-CSMrE8I36C3k5TTR2fVsDM.html
• https://www.latestlaws.com/articles/article-21-right-to-healthy-environment-an-interpretation-by-aayush-akar-and-hitesh-gangwani/
• https://www.theweek.in/news/biz-tech/2020/08/10/explained-what-is-Environment Impact Assessment -2020-how-does-it-water-down-the-existing-policy.html
• https://www.downtoearth.org.in/blog/environment/draft-Environment Impact Assessment -2020-undercuts-india-s-biodiversity-and-climate-goals-73201
• https://www.mondaq.com/india/climate-change/1007950/draft-environmental-impact-assessment-notification-2020-key-highlights
• https://www.downtoearth.org.in/blog/environment/draft-Environment Impact Assessment -notification-2020-is-it-contra-legem-to-international-conventions-judicial-verdicts-73858

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