Amidst the testing times of the ongoing COVID-19, on 12th March 2020 the Ministry of Environment, Forest and Climate Change (MoEFCC) released a new Environment Impact Assessment Draft (hereinafter, EIA Draft 2020) which is set to replace the 2006 EIA Policy currently in practice.
Environment Impact Assessment (EIA) means a thorough evaluation of a development or industry project which in its due course is bound to make irreversible changes to the environment and the people who form direct or indirect stakeholders. The procedure of EIA is a necessary mechanism to strike the correct balance between the development (economic) needs and the conservation of environment. An EIA study guarantees the credibility of the government’s actions and makes them accountable to their people, environment and the mandatory need to maintain a balance between the two conflicting needs thereof.
The EIA norms were accepted in India for the first time in 1994 and were thereafter succeeded by the 2006 Amendment. It has been accepted worldwide that the EIA norms differ for every country and thus, they must keep evolving with the pace of the particular nation. An upgrade in the 2006 version of the EIA norms were long due but the nation was appalled that in lieu of progression, we got regression in disguise of a newly proposed EIA Draft 2020 – which if turned into the permanently accepted version of the procedure would simply act as a “rubber stamp” for the clearance of projects that are detrimental to the environment and biodiversity of India.
To make the environmental administration matters worse in India, the new EIA Draft of 2020 has come bearing more problems and no solutions or improvements. It is fairly a good news for the big corporates, industries and factories but a death sentence for the people who will be displaced, environment that would be harmed and the setback that will follow because the Draft proposes the following alarming changes:
Diminishing the scope of EIA to support “ease of doing business”: The EIA 2020 under the garb of “aim to make norms more transparent and expedient” is the promotion of the “ease of doing business” at the cost of the environment and the stakeholders.
Exemption of projects labelled “strategic”: The most contentious new provision of all is the “strategic project” or “strategic considerations” clause as it provides no grounds or conditions to determine “strategic”, rather it gives the government an ambiguous and unchecked discretion to label any project they like as per their whims and fancies as “strategic” without ever having to justify their act or being accountable to the masses.
New system of PostFacto Approval of projects: The EIA Draft 2020 enlists Forty (40) different types of industries that shall be exempted from the requirement of prior environment clearance before they begin functioning and operating. The recent judgments of the Supreme Court in relation to the environmental matters have been reiterating the importance of the mandatory prior environment clearance before inception of the operations whereas this new shift from the prior environment clearance to allowance for a post-facto environment clearance is in violation of public trust doctrine and other well established environmental law policies and principles.
Reduction of Public Consultation from 30 days to 20 days: Public Consultations are the heart and soul of an EIA study whereas, the EIA Draft 2020 has turned it into some namesake formality sans any effective meaning left to it. The projects under the label of “strategic” projects, the linear projects (i.e. roads, tunnels, highways, etc.), border area (i.e. as per clause 3(2) 100 kilometers aerial distance from the Line of Actual Control with bordering countries of India) projects among enlisted under specific category division are exempt from the process of public consultation altogether.
EIA Compliance Reports that were filed biannually are now supposed to be filed annually: The 2016 Audit proved that even in the EIA norms 2006, it was a recurrent challenge to get the developers or project promoters to make submissions of the EIA Compliance Report timely; the additional leniency of allowing the submissions of the said report annually rather than bi-annually does not seem promising.
EIA Draft 2020 observed criticism immediately after its release from all its stakeholders. The concern of the stakeholders is that if EIA Draft 2020 becomes the new policy that guides the EIA Procedure then the consequences are going to be grave and they would primarily be:
Corruption and Red-Tapism: Even though the EIA Draft 2020 is wholly inclined towards the developers and industry people but even project proponents and developers had a valid opposition as they believe the new system may easily lead to excessive bureaucracy (i.e. Red-Tapism) and in turn add on to corrupt processes.
Easy escape from violations and no accountability: Going by the literal interpretation of the EIA Draft Notification 2020, all stakeholders have rightly deduced that the new notification is pro-industry and anti- environment as well as anti-people. This extreme stance gets substantiated by the new drastic shifts to post-facto environment clearance, leniency in reporting for audit, etc. – all of this proves that the new EIA notification is just the perfect nudge in the wrong direction and shall act as hand-holding technique for industries and giant businesses to breach the law and rather than making the system “more transparent” (as claimed), it will make it opaque, unjust and shall render actions not accounted for as the new norm in the environmental jurisprudence.
Setting up legislation like “Air Act”, “Water Act” and other provisions of the EPA 1986 for failure: EIA Procedures form a part of the EPA 1986 – rather the practical and administrative part which forms the regulatory mechanism of the country to ensure the balance in this field. Altering the EIA Procedure to this extent shall harm the effect and efficiency of all other Environmental Acts and legislations as the law in theory are no good without the proper implementation of the law in theory. The EIA Draft 2020 has to power to topple all the efforts and progress made in the environmental jurisprudence so far.
India has been a founding signatory of all landmark and significant multilateral environmental agreements (MEAs) and treaties like Stockholm Declaration (1972) and Rio Declaration on Environment and Development (1992) among others. Even the World Bank’s opinion on the environmental agenda was primarily “do no harm” which then molded into “promotion of environmental sustainability” which directly implies the solution i.e. “sustainable development”. The International Environmental jurisprudence has assisted India in molding its own environmental jurisprudence. India released the Water (Prevention and Control of Pollution) Act, 1974; Air (Prevention and Control of Pollution) Act, 1981 till it ultimately uncurtained the Environmental Protection Act (EPA) in 1986. Since the inception of the development in the environmental jurisprudence of India, the principles like “Environmental Impact Assessment (EIA)” and significant corollary principles like “Principle of Public Participation”, “Precautionary Principle”, “Polluter Pays Principle (PPP)” and “Public Trust Doctrine” thereunder have been recognized in theory and the practicality of the environmental matters in India. Such customary international environmental law principles formed the basic structure of the Indian Environmental Jurisprudence and thus, formed the rationale that led to justice in various famous cases of the legendary Shri. M.C. Mehta and others. Specifically, the Environmental Impact Assessment (EIA) became popular after the Rio Declaration (Principle 17) that India inculcated in its own environmental law regime the norms for EIA Policy in 1994 under the ambit of the umbrella legislation of EPA 1986. The EIA Policy of 1994 was then substituted by the EIA Policy of 2006 which is now set to be replaced by EIA Draft of 2020.
Fortunately, or unfortunately, the EIA Draft Notification of 2020 came at time of Viz Gas Leak and Baghjan Oil Well Disaster – the two most recent examples that highlighted precisely everything that can go wrong without proper EIA. Thus, the people of India are more aware of the environmental implications that a poor and loose EIA process is capable of – its ramifications will spare none. EIA Draft 2020 has received humongous criticism from the masses, and rightly so there have been NGOs, civil society people, lawyers, activists and experts who have led the ‘tweetathons’ and campaigns on social media with the now infamous #WithdrawEIA2020, #SaveEIA, #EIAforGreenIndia, among other hashtags floating around to bring to light the anti-environment and anti-public welfare EIA Draft of 2020. The Union Environment Ministry has revealed that their department has received approximately 17 lakh objections to EIA Draft 2020 notification which had a deadline upto 11th August 2020 for the submission of objections by the public. The setting of such a towering level of criticism record, the Indian masses have spoken volumes of their opposition to this EIA Draft of 2020 which is now considered anti-democratic as well. The blocking of the 3 websites namely: Let India Breathe, Fridays for Future, and There is No Earth B which were blocked on 29th June 2020 – this ban on these three forerunners thereafter acted as a catalyst to the strengthening of the citizen’s or people’s movement in India. This movement saw various student unions coming forward to write to the MoEFCC, National Fishworkers Forum (NFF) condemned the newly proposed EIA policy, along with many former bureaucrats concerting to write to the Prime Minister and the Ministry concerned (i.e. the MoEFCC).
The stakeholders, activists and the people of India have expressly shown discontent over the new EIA Draft Notification 2020 as it shall prove to be lethal for the environmental justice in India. It is cardinal for the legal and regulatory mechanisms of a successful EIA to be executed fairly, consistently and efficiently. The perception of the experts has been that EIA must deliver effectively on the promises of fair democratic political commitment (i.e. considering the interest of the tribal, environment, indigenous populations, biodiversity and other natural resources); prompt regulatory capacity (which includes institutional as well as legal regulations including the scope for advancement in technical capacity, research, data and information); and public participation (i.e. by involving the affected people’s and stakeholders genuine opinions without the malpractices of suppression of the same by muscle power or money).
Observing both sides of the coin’s debate over the EIA Draft Notification 2020, it is safe to conclude that this new notification is geared up to jeopardize the entire evolution and progression of the Indian Environmental Jurisprudence over the decades by setting it back to square one, where it all began. Hopes of all stakeholders and citizens are peaking while they await a satisfactory and progressive alteration to the EIA Draft Notification 2020 – so that, India can avoid any prospective disasters of the magnitude of “Viz Gas Leak”, “Oleum Gas Leak” or the “Bhopal Gas Tragedy” – and set a remarkable example of a smart 20th century developing country maintaining the correct balance between ecology and economy.