Public Participation and scrutiny

Reading time : 8 minutes  

INTRODUCTION

The doomsday clock, which reflects humanity’s perceived closeness to human-induced catastrophe, remains only 100 seconds from midnight, which is the closest it has been to emblematic doom since 1947. This clock serves as a “wake-up call” for humanity to abstain from various man-induced follies such as environmental degradation, climate change, resource pollution, nuclear war-fare, et cetera. At such a time when the government of all the nations should be striving hard to push the hands of the clock away from midnight, the draft Environmental Impact Assessment notification, 2020 can prove perilous. 

The Environmental Impact Assessment aims to work as a tool to predict impacts to the environment at an early stage in project planning and design, find routes and means to reduce adverse impacts and streamline projects to accommodate the local environment. The history of these aims in India can be dated back to 1994 when the first EIA notification statutorily backed by the Environmental Protection Act, 1986 was promulgated, by the Ministry of Environment, Forest and Climate Change.

The controversial draft threatens to set aside various essential provisions such as public consultation, the introduction of ex-post-facto clearance, exemption of projects from public scrutiny, and other such controversial changes. The draft EIA notification, 2020 falls short of the aims of EIA and will only back-track the progress we have made thus far. 

Public Participation and scrutiny

A four-step mechanism is generally followed under the EIA: screening, scoping, public participation, and appraisal. Public participation and consultation are considered very significant steps in the EIA process. The aims and objectives of including this step are evident: Raise awareness among the local population about a certain project, provide them with an opportunity to present their outlook and state their reservations, help mitigate any local impact after discussing it with the communities living there in close proximity. The draft EIA proposes to reduce the time frame for a public response from the existing 30 days to mere 20 days and excludes various projects from public scrutiny, thereby threatening to jeopardize the rights of tribals and local communities.

Whenever any project is granted clearance, the inhabitants of that area are the ones who are the most affected. Even the 30-day objection period was less considering that these people live in remote and technologically inaccessible areas. Their hardship is aggravated further, when the EIA reports, are not available in local languages or are full of technical terms. Also, additionally by classifying certain projects under ‘strategic considerations’ the developers can misuse the law by bypassing public scrutiny. The government has even exempted some projects from public transparency and accountability by classifying them into A, B1, and B2. Projects under category B2 do not require mandatory Environmental Clearance as opposed to category A and B1 projects. The projects in this category include on-shore and off-shore oil exploration, hydroelectric projects, irrigation projects, inland waterways, and highways, among others.

The importance of public participation in the EIA process has been upheld as an integral component by various court proceedings in India. The Delhi High Court, highlighted the importance of public participation in the Samarth Trust case, wherein it opined:

“A public hearing is a form of participatory justice giving a voice to the voiceless and a place and occasion to them to express their views with regard to a project. Such a public hearing gives an opportunity to the people to raise issues pertaining to the social impact and the health impact of a proposed project.”

A similar view was identified in the Lafarge Umiam Mining Private Limited vs Union of India case, by the Supreme Court, which held the public consultation to be a mandatory requirement of the environmental clearance process. 

To contain and limit the damage to the environment, we need meaningful public participation. This can only work well when locals are provided with the EIA summary reports in their local languages and with sufficient time in hand, to understand the implications of these industrial developments. One other drawback of the existing structure of EIA in India is that public consultation is welcomed only after the EIA report has been prepared and is ready for final submission. At such a later juncture, the chances of incorporating the changes made by the people are abysmally low. The State can strive to implement a model similar to the one existing in developed countries, where there are provisions for public engagement at various stages of the assessment process. This would ensure that communities are heard and measures are taken to mitigate the negative impacts of the project.

Post-Clearance Compliance

Post-Clearance Compliance means that once a project gets approved by the required authority it needs to maintain certain guidelines so that there is no environmental degradation in the future. The NGT has even imposed fines on non-compliance with these rules on various occasions. 

The project proponents have misused the approval by not obtaining permission for cutting trees from the competent authority, irregular use of groundwater, non-construction of rainwater harvesting, violation in handling hazardous waste, non-development of green belt, and even changed the scope of work after getting the Environmental Clearance. The draft EIA 2020 notifications, mandates the submission of the compliance reports annually as opposed to the prior bi-annual requirement. Environmentalists are of the view that when such non-adherence to guidelines occurred even when reports were to be submitted every six months, the longer period for the submission of compliance reports gives the industrialists opportunities to hide disastrous consequences. Continuous monitoring is required to capture vulnerable areas, as the ecosystem does not immediately respond to external changes. With the climate becoming more and more unpredictable, a single-season data is not accurately representative of environmental cycles, changes, and conditions.

Another aspect of these compliance reports is that they will be prepared by the project patrons themselves, as without any surveillance there are changes of biases and misuse of this provision. The compliance reports will be marred with anomalies and mistakes, without any expert’s overview and involvement. Moreover, the government will only take cognizance of any violation, breach, or non-compliance of the post-clearance guidelines from the violator-promoter, government authority, appraisal committee, or regulatory authority. The deliberate exemption of the general public and locals from this is a recipe for disaster, as these regulations would promote industrialists to operate without bothering about clearance and get regularized by paying penalties.

 For the EIA to be multi-faceted and more representative of the environmental impacts, the government must include more individuals with specific knowledge about environmental laws and the effects of non-compliance of rules on the ecosystem.

Post-Facto Clearance

The new EIA rules allow post-facto clearance. This means that even if a project or an industry has come up without any safeguard to the environment or without getting environmental clearance, it would still be allowed to continue its operations or even apply for clearance under the new regulations. Even though firms found violating the terms of their establishment would be penalized via penalty, the cost of such fines would always be lesser compared to the approval to carry on its operation and trade.

The incident of the styrene gas leak from the LG Polymer Plant in Vishakhapatnam, which could have been the next Bhopal gas tragedy is still fresh in memory. After the accident, it was revealed that the company was running without any clearance for two decades. There are many such projects which can be catastrophic and claim lives, if not obligated by the EIA clearances.

A similar incident occurred in Assam, where Oil India Limited’s natural gas site caught fire. A string of such similar incidents will continue to claim human lives, disrupt the ecological balance and undercut India’s biodiversity if there is such poor adherence to environmental norms by the industries. 

After the disruption of normal lives and livelihood post the Covid-19 pandemic, the focus on industries is a welcome step, but by allowing such industries to come back and then take environmental clearance, the government is fundamentally sanctioning illegitimate projects. Evidently, this help to industries is tipping the scale in favor of doing business, however, India’s score on the Environmental Performance Index has steadily declined. The harmonious balance between ecology and economy should be well protected.

Union’s Upper hand

The new EIA regulation, strengthens the Government, while it weakens the public. It bolsters the government’s unrestricted powers and provides no recourse from political or bureaucratic control over the clearance process. There are a lot of communities like peasants, fishermen, Adivasis, tribals, who are dependent on a healthy environment. The decentralization of decision-making and power-sharing to local bodies can provide the sustainable coexistence of biodiversity in human settlements. This ‘bottom-to-up’ approach will allow the conservation of native biodiversity as these indigenous groups can take prompter and a more holistic action towards cases of environmental nuisance. 

The proposed changes to EIA also give the central government complete power to appoint the State Environmental Impact Assessment Authority, thereby weakening India’s federal structure. A parliamentary standing committee must shoulder the task of streamlining the power and scope under the said act and also acknowledge the need to make it people-friendly. After making the desired changes, the notification should be given more authority to bring favorable results and should not merely remain a ‘toothless-tiger’.

Conclusion

We should think beyond fostering development at the cost of our environment, as the long-term impacts of a deteriorating natural ecosystem can only worsen our economic woes. These domestic laws can prove disadvantageous to India’s image as a party to global climate agreements. India’s recent initiative of the International Solar Alliance, along with its ambitious environment and climate change goals in international platforms will appear insincere and hypocritical. Moreover, this law goes against India’s constitutional obligation of providing a clean environment under the Right to Life article. They should infuse more transparency and accountability in the process by including people’s voices in every crucial step of the EIA process. It is only when the government starts recognizing the most vulnerable stakeholders: people, there is a chance at redemption. The draft EIA prioritizes business over the environment and is therefore defiant to the essence of environmental jurisprudence of India.

 The Covid-19 pandemic, Vizag gas leak, and Baghjan oil spill incident should make us look past the ephemeral nature of industry and trade. These incidents have served us continuous reminders that any damage to the environment comes with more detrimental effects on the people. The Earth existed even before the creation of humankind, and it will exist even after it. Humans should therefore not do anything, which pushes the hands of the doomsday clock closer to strike midnight.

Author: Palak Sharma, Government Law College, Mumbai

Editor: Kanishka VaishSenior Editor, LexLife India

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