by Amol Verma
The aftermath of the Bhopal Gas Disaster made the Indian Government realize that the existing environmental laws in India are Inadequate. In order to avert such disasters from happening in the future, stronger and more proactive legislations were needed. In order to meet the above requirements, the Indian government came up with The Environment (Protection) Act, 1986 (hereinafter referred to as ‘EPA’). The legislation brought forth a new process, namely, the Environmental Impact Assessment (hereinafter referred to as ‘EIA’) which is applicable to all the developmental projects in India.
The Ministry of Environment, Forest and Climate Change (hereinafter referred to as the ‘MoEFCC’) is bestowed with the responsibility to ensure that all the infrastructure and development projects are undertaken without compromising environmental safety and without causing irreversible damages to the natural resources. The MOEFCC thus acts as a safety net for the environment. In accordance with its responsibility it mandates that to start a new project, the project proponent has to undertake an Environmental Impact Assessment. The author through this article analyses the existing EIA process and how its has failed in its effective implementation, the recent draft EIA notification and its detrimental effects on the environment, and suggests the adoption of a balanced approach in achieving economic development along with environmental protection.
The Existing EIA Process and Related Concerns
The Environment Impact Assessment (EIA) notification, 2006 regulates the process of environment clearance for new industrial and infrastructural projects or expansion. EIA covers projects such as mining of coal or other minerals, infrastructure development, thermal, nuclear and hydropower projects, real estate, and other industrial projects. The projects are assessed on the basis of their potential impact on the environment. Based on the assessments, they are granted or denied environment clearance by a panel of experts.
As per the existing norms, the EIA needs to be conducted before a project begins to evaluate the environmental impacts of the project. Only if, the expert committee of the MOEFCC is of the view that there are no adverse environmental impacts does it grant an environmental clearance. This process is extremely important because it is the only mechanism that prioritizes environmental safety over economic gains. Furthermore, a prior free and informed consent of people is sought. People have been given the right to ask about the need of the project and in this process, the project can be rejected on precautionary grounds. Therefore, the values that are fundamental to the EIA process are sustainability, equity, environmental justice, transparency, and accountability.
However, the existing EIA process faces a series of impediments in realizing the above-mentioned values. The current EIA mechanism itself has several issues. For example in cases of large hydroelectric and irrigation projects severe irregularities have been reported such as poor quality baseline data, inadequate or no impact assessment, violations that have gone unreported, etc. In fact, the MOEFCC has itself admitted that it has practically no capacity to monitor the projects, leave aside achieving compliance.
One Step Forward and Two Steps Back: The Many Problems with The Recent Draft EIA Notification
In March 2020, India’s environment ministry proposed changes to the environment clearance rules through a draft notification which seems to be leaning in favour of the industry. While prima facie the new draft notification states that its purpose is to impose certain prohibitions and restrictions on new developmental projects so as to make the process more transparent, it proposes a mechanism to legitimize some actions currently listed as violations, such as projects starting construction without a valid clearance.
Under the recent draft, the project categories have been altered so that a significant number of new developmental projects will completely escape the environmental clearance process. Furthermore, cumulative impact assessment has been proposed to be made non-mandatory. Accordingly, all projects will be assessed individually. This is a major problem as individual projects tend to have a small footprint which could be misleading. A large number of such individual projects in the same region could have a much larger impact and yet cumulative assessment is sought to be made non-mandatory.
As per the existing practice, the expert appraisal committee is authorized to ask for additional studies to understand the nuances of the environmental impact of the projects. In contrast to the norms, the procurement of such additional studies has been explicitly discouraged. Another problem with the draft notification is that it has reduced the already short duration of public hearings from 30 to 20 days. This limitation implies silencing the voices that were barely heard otherwise.
Most importantly, as per the notification, the Public Consultations/Hearing Process can be cancelled owing to the ‘local situation’. The term local situation is ambiguous and is open to be exploited by the project proponents. For Illustration: If people of a particular region protest against the developmental project that can very well be used as a ground to cancel the public consultations. Moreover, public consultations are altogether exempted for all projects concerning national defense and security or projects involving “other strategic considerations” to be decided by the central government. The above clause is arbitrary and vests broad powers with the central government to an extent that the provision may be exploited by exempting any project from public hearings in the name of ‘strategic consideration’. This goes against one of the basic principles of natural justice .i.e., audi alteram partem.
Compliance and monitoring have been further weakened. According to the draft, once an environmental clearance (hereinafter referred to as ‘EC’) is granted it shall exist for the entire lifetime of the project without any review. Thus, if the project is found to be damaging the environment after being operational, the EC cannot be revoked.
The proposed EIA framework dilutes rules by expanding the list of projects exempted from the public consultation, a crucial part of EIA, among many other dilutions. To top it all the MOEFCC is willing to give ex post facto clearance in the ‘interest of the environment’. The courts in India have time and again expressed disapproval of the idea of granting ex post facto clearances.
In Rohit Prajapati v. Jiya Pathan the National Green Tribunal rejected the plea to grant ex post clearance to the industrial units and struck down the amendment granting ex post EC which the government had inserted to the EIA Notification, 2006. However, the Madras High Court in Puducherry Environment Protection Association v. Union of India took a contrary view and upheld the notification of the government granting ex post fact clearances. Recently, In Alembic Pharmaceuticals Ltd. v. Rohit Prajapati the Supreme Court held that ex post facto approval is in violation of the principles of environmental jurisprudence and if granted could cause irreparable damage to the environment.
We as a nation have been ignoring the damaging impacts on the environment while we pursue economic growth. In times like these, it becomes all the more important to strike a balance between environmental protection and economic growth. The objectives behind the EIA process sounds all great, but in reality, its implementation is not that effective. As has been observed and analyzed by the author, there are a lot of shortcomings in the law and it has been grossly misused. This is exactly why disasters such as the Vishakapatnam Gas Leak, Assam Oil Spill, etc happen in the nation. There remains no doubt about the fact that the law needs to be made stronger and its implementation needs to be strengthened further instead of allowing the project proponents to exploit it.
The EIA goes against the recent observations of the Supreme Court wherein it pointed out that ex post facto EC is against the fundamental principles of environmental jurisprudence and can result in irreversible damages to the environment.
Economic growth is important but so are our natural resources. Hence, environmental Regulations must aim for sustainable development by making mutual concessions between the damage to the environment and economic growth.
Views are personal.
Image credits: Green Living
ABOUT THE AUTHOR
Amol Verma is currently pursuing law from Chanakya National Law University, Patna.