Introduction
Environment Impact Assessment (EIA) happens to be the most important procedure in Environmental Law to assess the probable consequence or impact of profound projects and developments on the environment. This particular procedure asses both favorable and adverse socio-economic, cultural, and human impacts of the projects or development.[1]In between these unprecedented times when environment and development are of paramount importance, the EIA process plays a vital role in prioritizing protection in development which further helps to achieve sustainable development. In the light of achieving sustainable development,the Union government released the draft of EIA notification 2020.[2] Since the day it has been in the public domain, it has received severe criticism from environmentalists and experts for its unacceptable and contentious changes in rules.
This article aims to highlight the reasons for which the draft received severe criticism and opposition.
Draft: the controversy
The draft was issued under the Environment Protection Act, 1986,[3] and in replacement of existing 2006. This new draft had been the keeper of various controversies that were being raised. The controversy raised from the day it was put in the public domain; interestingly it was released a day before the nation-wide lockdown. According to Rule 5(3) of the Environment (Protection) Rules, 1986,[4]the public was granted 60 days to send their comments regarding the draft, but the nation wide lockdown has made it difficult for people to pass on their thoughts and comments. People were already stressed out due to the collapsing economy and health conditions and it was unethical for the government to put the people under pressure to make such life-altering decisions. Initially, the last date to send general comments, recommendations, and objections to the said draft was 11 June i.e. within sixty days from the publication, but this date could not have been sufficing the purpose as the nation was facing coronavirus crisis and the entire country was under complete lockdown. On 8th May,the date was extended further for sixty days but due to some typographical errors in the notification, it stated 30 June.[5]A writ petition in the Delhi High Court, was filed for the same through which Hon’ble Chief Justice Prateek Jalan clarified that the deadline is 11 August.Environmental activist and founder of Muse Foundation-Nishant Bangera stated that the draft is undemocratic. He substantiated that the draft released during the time of pandemic which takes away the right of public specifically tribal and indigenous communities to opine on development projects.[6]
Another controversy that arose after the publication of the draft was regarding the authority’s actions. The authorities were seen curbing the voice of various people by taking down the websites which were running digital campaigns regarding the draft. This sort of behaviour by the authorities indicates their stand on considering the voice of the masses. Gradually they are violating the right of freedom of speech and expression by using these methods of web censorship.[7]
Why environmentalists opposing it?
Apart from the above-mentioned controversies, there has been strong criticism from the side of environmentalists.The draft was opposed based on various points, yet the criticism can be viewed based on 3 main pointers.
- Pro-industry
Among various other reasons for opposition, the major one is the investor-friendly mechanism.According to the 2006 draft,[8] all the industrial projects were categorized in the Category A and B. Category B was further sub categorized into B1 and B2. All the projects except category B2 were bound to secure environmental clearance before stepping into the running phase.[9] In the recent draft of 2020 industries can receive post-facto clearance, i.e. they can receive their clearance even after they have started working or operating without securing environmental clearance.The draft also mentions that 40 different types of industries are automatically exempted from the need for prior environmental clearance, which will provide them to benefit from their violation. Further, the draft has also reduced the submission of compliance reports by industries from twice a year to once a year now. Due to this extension of time in submitting the report many irreversible consequences of the projects may go unnoticed, and this will grossly affect the spirit of EIA. The primary purpose of the process is to grant environmental clearance by assessing the future impact of the industrial project. As the 2020 draft exempts some of the industries from the need for clearance and also allowed post facto clearance, the purpose has been lost in the chain of amendments. Various environmentalists considered this as a pure delusion of the monitoring system. Author and biologist Neha Sinha in an interview stated that-
“The draft EIA notification tries to dismantle the core idea that an assessment should be done before a project starts. One of the provisions of the new draft is that projects that have come up illegally, that is, projects without environmental clearances can be legalized.”[10]
The inclusion of the term ‘strategic projects’ in the draft 2020 provides the Government with the exclusive right to consider any project under the ambit of the term ‘strategic’.The draft notification also stated that projects concerning national defense and security or “involving other strategic considerations as determined by the Central Government” would not be treated as category ‘A’[11] and hence will not be required to have environmental clearance. This particular amendment in the draft raised the question of transparency in the entire process, giving a clear exemption from the need of acquiring clearance would have an adverse effect on the local population. Concerning this amendment, Advocate Zaman Ali, who practices at the Bombay High Court stated that “such usage of vague words like projects of strategic consideration can bring any and every project of any threshold under its ambit and this will defeat the entire purpose knowing what the likely impact of this project on environment is going to be.”[12]
- Anti-social
The second criticism was regarding the anti-social amendments in the draft. One of such unacceptable clauses in the draft was regarding the reporting of the violations. The draft mention that violation can only be reported by the Government and not the public, which is the most biased amendment witnessed until now. Apart from this, following are the amendments that are against the public policy-
- Reduction in the time period from 30 to 20 days for the public to submit the responses during the public hearing for any application seeking environmental clearance.
- Public consultation requirement is exempted from various red and orange industries, like building construction, broadening highways, which are highly toxic to the environment.
- Public participation is held only once throughout the entire EIA process.
- No information would be provided regarding strategic projects. Also, it gives the Government an exclusive right to consider any project under the ambit of the term strategic.
Considering all these bullet points many green activists argued that the draft lacks transparency and creditability. Joy Daniel Pradhan, a Delhi-based independent researcher, expressed that-“Weakening the EIA process means abating democracy. The draft EIA grossly neglects consultation with the affected communities. To limit public consultation means to silence voices that are barely heard otherwise.”[13]
- Against fundamental structure of environmental law
Environment Assessment Impact is based on the basic “precautionary principle” of environmental law. There is a famous saying that better be safe than sorry. The precautionary principle is based on a similar spirit. This principle is adopted in the Rio Declaration which stipulates that “threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”[14] It focuses to control those activities which may have a derogatory impact on the environment and human health. EIA process seeks to identify and reduce the negative impact on the environment. The clause of post-facto clearance in 2020 notification is the clear violation of this principle. The clause tilts towards prioritizing infrastructure over the environment and human health. It is also against the Supreme Court judgments, one of which is the case of Alembic Pharmaceuticals v. Rohit Prajapati[15] where the apex court stated that ex-post facto green clearance is against the sustainability and precautionary principle of environmental law.[16] Consequently in the case of Keystone Realtors Pvt. Ltd. v. Shri Anil V Tharthare & Ors., the court stated that-
“EIA imposes restrictions on the execution of new projects and the expansion of existing projects until their potential environmental impact has been assessed and approved by the grant of an EC.”[17]
Conclusion
Critically analyzing the points above mentioned, it can be concluded that the draft prosed is pro-industry, anti-social, and anti-environment law and needs to be relooked upon. The draft might lead to bigger developmental projects in India but such negligence by the Government can have a drastic impact on the environment.
In the recent past, there have been several degrading incidents concerning the environment. In May there was a deadly gas leak at LG polymer’s Vizag plant. After the investigation conducted by NGT, it was unfolded that the plant had been operating without environmental clearance. Such an incident reveals the deleterious results these developmental projects can inflict upon if the assessment process is not emphasized enough. Vizag would be just a tip of an iceberg if we continue to ignore the importance of the environment over developmental projects. The suffering will come to the end only if we realize that we are not ready for more man-made disasters; hence we need strong environmental laws.Ministry of Environment, Forests and Climate Change has received severe criticism concerning this draft of Environment Impact assessment. #SaveEIA banners have been in limelight showcasing the outrage against the draft proposed. Social media has also been flooded with the opposition of young activists and environment enthusiasts. Here, it pertinent to note that the Government needs to revaluate this draft from the perspective of the environment and human health else we might have to witness many severe consequences in the future.
By-
Ananya Bhargava,
Dharmashastra National Law University
[1] Pari Khurana, Environmental Impact Assessment: Everything important you should know about,(June 19, 2020), https://blog.ipleaders.in/environmental-impact-assessment-everything-important-you-should-know/.
[2] Ministry of Environment, Forest and Climate Change, S.O. 1223(E) (Notified on March 27, 2020).
[3] The Environment protection act, 1986, act no. 29 (1986).
[4] The Environment (Protection) Rules, 1986, § 5(3) (1986).
[5] Bibek Bhattacharya, EIA Draft 2020: All the ways it weakens an important environmental safeguard, Live Mint, (July 2, 2020), https://www.livemint.com/mint-lounge/features/eia-draft-2020-weakening-an-important-environmental-safeguard-11593611958824.html.
[6]Anurag Tiwari, Environmentalists raise concerns about draft EIA 2020 notification, demand its scraping, CNBC TV, (June 29, 2020), https://www.cnbctv18.com/politics/environmentalists-raise-concerns-about-draft-eia-2020-notification-demand-its-scraping-6227841.htm.
[7]Sonali Jain, Draft EIA Notification 2020: Whose interests does it secure?, The Leaflet, (July 24,2020), https://theleaflet.in/draft-eia-notification-2020-whose-interests-does-it-secure/.
[8] Ministry of Environment and Forests, the Environment Impact Assessment notification, S.O. 1533 (Notified on Sept. 14, 2006).
[10] Supra 3.
[11]Shoumojit Banerjee, Draft EIA notification fosters non-transparency, encourages environmental violations, The Hindu, (June 29, 2020),https://www.thehindu.com/news/states/draft-eia-notification-fosters-non-transparency-encourages-environmental-violations/article31941635.ece.
[12]Supra 4.
[13]Abhijit Mohanty, Why draft EIA 2020 needs a revaluation, Down To Earth, (July 6, 2020), https://www.downtoearth.org.in/blog/environment/why-draft-eia-2020-needs-a-revaluation-72148.
[14]Federico Cheever and Celia I. Campbell-Mohn, Environmental law,Encyclopædia Britannica, (Sept 19, 2016), https://www.britannica.com/topic/environmental-law.
[15] Civil Appeal No. 1526 of 2016.
[16]Draft EIA norms need a relook – here’s why, The Financial Express, (July 2, 2020), https://www.financialexpress.com/opinion/draft-eia-norms-need-a-relook-heres-why/2010582/
[17]Keystone Realtors Pvt. Ltd. v. Shri Anil V Tharthare&Ors., (2020) 2 SCC 66.
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