Analysis: Controversy Regarding Draft EIA Notification 2020

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In March 2020, the Ministry of Environment, Forest and Climate Change introduced a Draft Environmental Impact Assessment (EIA) Notification, 2020 to succeed the present notification which has been in place since 2006. This is initiated under Section 3(1) of the Environment (Protection) Act, 1986 which gives powers to the Central Government to take all such measures to “protect and improve the quality of the environment”.

The changes brought by the new notification will make the process more expedient and transparent by introducing an online system. This has drawn a lot of criticism from environmentalists, activists and other experts in the field, who claim that it will water down the existing provisions which are already weak.  

The latest development on the new draft Environment Impact Assessment (EIA) Notification 2020 is that the Central Government has been asked to consider the extension of time to file any objections pertaining to the notification. Presently, the last date for the submission of the objections was August 11th, 2020. The government has been warned that if the extension of the time limit is not complied with, then the Bench would possibly put a stay on the notification.

Facts of the Issue

The proposed draft notification seeks to replace the present rules.  It is important to note that the EIA is the process responsible for giving environmental approval and clearance to developmental and industrial projects.

This has drawn heavy criticism for the unnecessary dilution of the current process and for ensuring a smoother and swifter way for industries to secure environment clearances and violate rules.

After much pressure from activists and opposition, the date for public comments and changes was extended to August 11. Considering the ongoing COVID-19 pandemic, calls have also been made for further extension of three to four months keeping in mind the serious repercussions that the proposed notification would have on the environment.

Legal Provisions Involved

The legal question involved in this issue is Section 3 of the Environment (Protection) Act (EPA) of 1986. Under Section 3(1) of this Act, the Central Government is empowered to take measures “for the purpose of protecting and improving the quality of the environment, and preventing, abating and controlling environmental pollution.” 

In Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, the Apex Court noted that, “For an action of the Central Government to be treated as a measure referable to Section 3, it must satisfy the statutory requirement of being necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environment pollution”. Following this line of thought, the EIA 2020 draft notification is in contradiction to the powers vested to the Central Government.

Another problematic change in the proposed draft, is that it allows projects to receive post-facto clearances, which means that a project which is in violation with EPA provisions can later apply for clearance. In a recent April order, the Supreme Court has stated that, “ex post facto clearances are unsustainable is law and void. ” It also considered it to be against sustainability and the precautionary principle. Additionally, in the case of Common Cause v Union of India, the Supreme Court opined that “the concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence including EIA 1994 and EIA 2006.”

The procedure for public consultation for the new draft EIA has also been marked by controversy as mentioned earlier. It is pertinent to note that the requirement of an ex post facto public hearing was introduced by an amendment in 1997 to the 1994 EIA. The case of Lafarge Umiam Mining Pvt Ltd v Union of India upholds the legality of an ex post facto public hearing.

Critical Analysis

Environmental Impact Assessment (EIA) is a process of evaluating the possible beneficial or adverse environmental impacts of a proposed project or development. According to the UNEP, EIA is a tool used to identify the environmental, social and economic impacts of a project.

It is crucial to analyse the potential impact of the draft EIA to better understand the trade-off between the environment and development. While development does not necessarily come second to environmental concerns, the environment cannot be sacrificed in a relentless, indiscriminate pursuit of development. Ideally, the EIA notification rules should maintain a balance between these two pursuits.

Another alarming proposal is that it gives exemption to a long list of projects from the purview of EIA, which limits public involvement. This includes any venture which the Government deems as “strategic projects”. According to the draft, no information on “such projects shall be placed in the public domain”. This lists also covers all inland waterways and national highway projects. All construction projects up to 150,000 sq. m. shall also be relieved from the EIAs. This aspect obviously gives the Government vast discretionary powers on the matter.

Moreover, the draft notification also says that cognizance of a violation will only be considered through a report by only the Government or the project developer, or on a suo motu basis. It is difficult to understand how this is effective in the protection of the environment and interest of the communities

It is interesting to note that the EIA process was a result of the 1992 Rio Declaration on Environment and Development, which states that environmental issues are best handled through the participation of all concerned citizens and that States must provide an opportunity to citizens to participate in the decision-making processes. Similarly, in the Samarth Trust case, the Delhi High Court considered EIAs as “a part of participatory justice which gives voice to the voiceless”.

Lest we forget, Article 51A (g) of the Indian Constitution dictates that it is the fundamental duty of every citizen “to protect and improve the natural environment including forests, lakes, rivers, and wild life, and to have compassion for living creatures.” It is essential that a law on EIA must inculcate such values.

Another cause of distress is that the 2020 draft does not address any of the issues which have troubled the earlier EIAs. Such as:

  • the poor manner in which public hearings are conducted,
  • the lack of cumulative Environment Impact Assessments,
  • lack of transparency in the finalisation of the EIA Reports,
  • failure to assess, monitor lack of compliance or to hold violators accountable

It is feared that the proposed EIA notification will compound these issues and intensify the rate of ecological degradation in our country. India has slipped 36 places in the 2018 Environmental Performance Index, in the span of just 2 years, placed at 177 out of 180 countries. In 2020, it is placed at the 168th position.

Conclusion

Environmental regulation must balance damage to the environment with sustainable development and possible benefits, but the new notification focuses more on the benefits and needs some serious reconsideration.

The Ministry, instead of reducing the time for public consultation, should emphasize on ensuring access to information and awareness about the role of public hearing. The draft EIA notification needs wide and deep deliberation before it is finalised. The provisions which are pro-development need to be tempered, considering that the collapse of natural infrastructure will be suffered by generations to come. 

Author: Nikita Prakash from Symbiosis Law School, Pune.

Editor: Astha Garg, Junior Editor, Lexlife India.

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