Top News

Sunday, Jul 05, 2020 12:30 [IST]

Last Update: Sunday, Jul 05, 2020 06:50 [IST]

Many problems with draft notification of EIA, 2020

The environment is one of the major components of sustainable development. The incidents happened one after another starting from Bhopal gas tragedy to recent boiler explosion in Cuddalore in Tamilnadu  clearly exposed that Environmental Impact Assessments (EIAs) were not practically devised to maintain environmental sustainability and to protect human health  through scientific assessments and proper public participation. On the contrary, if critically examined, all these  EIAs were outweighed by economic and political concerns leading to legal disputes and public contestations surrounding the project. Thereby sustainable development as promised by Government of India  has been endangered.  In India, most unfortunate  part is that   the procedure and processes being adopted to prepare EIA for environmental clearance has already eroded the trust of common people in regulatory agencies leading to loss of democratic accountability. Despite stipulating industry-specific standards and strong guidelines to carry out EIAs in accordance the EIA notification 2006 that was updated version of the 1994 EIA notification.
The government redrafted  2006 notification again to incorporate the amendments and relevant court orders issued since 2006, and to make the EIA “process more transparent and expedient”   so that the latest version of EIA procedures and processes  can address legal, technical, environmental and social issues, including social welfare, compensation, safeguards and corrective measures to ensure social, economic and environmental benefits to all, particularly local communities and fauna and flora. Despite this attempt  enforcement was poor, corruption was rampant, and the justice system was slow. But revelation of corruption or manipulation in EIA is tricky and difficult to prove because it is a practice inherently subtle, hidden or not evident though its existence seems certain. The manipulation depends on the interests at stake, and political or lobby pressures.
Numerous procedural and bureaucratic challenges, as well as powerful political leaders exert pressure to reform EIAs through streamlining and simplifying EIAs and environmental licensing processes. May be, in this view, Government of India  has felt necessary to put the draft Environment Impact Assessment (EIA) notification 2020 in the public domain by the Ministry of Environment, Forest and Climate Change (MOEF&CC) to replace the EIA notification 2006 proposing a new set of environment clearance rules which seem to be heavily loaded in favor of the industry. Critical appraisal of draft EIA 2020 clearly reveals that MOEF&CC legitimizes violations by those who start projects without environment clearance, weakens the public consultation process and gives a lot of discretionary powers to authorities. Though public consultation process was in practice but  these efforts frequently became mechanisms of co-optation, through which the projects of more powerful political and financial actors were projected and the logics of project success were promoted. Now  this draft proposes to bolster the government’s discretionary power so that there will be the political and bureaucratic stronghold on the EIA process, and thereby on industries while limiting public engagement in safeguarding the environment. As a result there will be little scope to address corruption, larger territorial transformations, and human rights violations.
The National Green Tribunal (NGT) has also consistently ruled against post-facto approvals but this  new 2020 notification simply ignore  this cardinal principle of prior environment clearance and permits post facto regularization of environment violations by paying fines so long as the project is permissible in the area but  a fine or punishment would not reverse the detrimental consequences on the environment. Post facto approval is the derogation of the fundamental principles of environmental jurisprudence and violation of the “precautionary principle,” which is a principle of environmental sustainability. Any shift from the ‘polluter-pays-principle’ to the ‘pollute-and-pay’ principle would cause severe environmental problems  On April 1, the Supreme Court clearly opined that environment law would not countenance the notion of an ex post facto clearance. Thereby the purpose of this notification is to legitimize illegalities done by industries. It seems to be emphasizing that an industrial project that has violated environmental rules will have a right to seek approval for it as long as that project is permissible in the area. It is practically a mockery of the law.
The new draft exempts a long list of projects from public consultation particularly linear projects such as roads and pipelines in border areas will not require any public hearing. The ‘border area’ is defined as “area falling within 100 km aerial distance from the Line of Actual Control with bordering countries of India.” That would cover much of the Northeast, the repository of the country’s richest biodiversity. Further all inland waterways projects and expansion/widening of national highways will be exempt from prior clearance. These include roads that cut through forests and dredging of major rivers those are the diverse ecosystem.
In this context it is pertinent to mention that PM Narendra Modi urged people to preserve and conserve the biodiversity of India describing it as a "unique treasure" for the entire humankind. This exemption is the clear indication of the government's  negligence in maintaining the natural ecosystem that is practically "ecocidal" that causes a million species at risk of being wiped out. The battle with the current pandemic has shown us how vulnerable and unstable our systems of production, distribution and supply are in the face of Nature. This new draft will obviously accelerate  the over exploitation of natural resources in the name of “so-called development” that cannot maintain equilibrium among economies, society and environment. Ultimately this will force the humanity to face severe consequences like diseases and bad weather.
While projects concerning national defence and security are naturally considered strategic, the government gets to decide on the “strategic” tag for other projects. According to the 2020 draft there may be apprehension that the government could keep any project out of any public scrutiny under the guise of other strategic considerations. CAG Report of 2016 had observed that the concerns of the local people as emerging from public hearings were not being included in the final EIA reports and the project proponents did not fulfil their commitments in a time-bound manner. Instead of addressing these issues, the new draft provides further leeway to these perpetrators.
The new law also proposes to declare some areas as ‘economically sensitive areas’, on the recommendation of MOEF&CC, which would then be taken outside the ambit of the mandatory environmental and other clearances. This could pose a serious threat to delicate and highly unstable ecosystems like sacred groves, remnant forest patches and those that sustain critically endangered fauna like the great Indian bustard, Asiatic lion and one-horned rhinoceros. Development of projects without proper development planning and environment management  may increase our ranking in the ‘ease of doing business’ index but might irrevocably damage our environment in the long run.
Further this  draft increases the validity of the environment clearances to 50 years for mining projects as against 30 years in the current law and 15 years for river valley projects as against 10 years.  Based on my experience on monitoring mining areas it may be mentioned that such long time clearances would increase  increasing the risk of irreversible environmental, social and health consequences.
The draft notification has reduced the time period from 30 days to 20 days for the public to submit their responses during a public hearing for any application seeking environmental clearance. Though 5 days reduction is not a big matter but often time is required  for the preparation of views, comments and suggestions  of the people  affected by the project particularly in those areas where information is not easily accessible. If adequate time is not provided , then such public hearings would not be meaningful. Unless a public hearing is meaningful, the whole EIA process would lack transparency and credibility.
In 2006 notification there is a provision to  submit a report every six months. But the new draft requires the promoter to submit a report only once every year. During this period, certain irreversible environmental, social or health consequences of the project could go unnoticed because of the extended reporting time. Many examples can be cited the necessity of short period compliance to avoid exposure of potentially hazardous to the nearby population and to prevent  contamination of  the air, water and soil nearby the project site.  The backbone of environment clearance rules is monitoring the conditions  of area on which projects are cleared and ensuring compliance. In this draft, the ministry will rely on self-certification by the industry that would be the major barrier to  ensure  compliance and monitoring of projects.
In reality, this 2020 draft is a regressive departure from the earlier version. Environmentalists as well as well-meaning economists has strongly advocated  if the government would throw caution completely to the wind to make good the GDP loss to the economy due to the prolonged lockdown and then this will make a mockery of its commitment to the global community made in the United Nations Climate Change Conference 2019 (COP 25). Thereby this new draft would come as a major embarrassment to the country in the international stage. It is also pertinent to note that India ranked a very lowly 177 out of 180 countries in the last released Environment Performance Index (EPI) 2018.  This draft, whatever reason it may, initiates  the process for industries to get a green signal for beginning, extending, and even continuing projects that would become easier under the new EIA draft.
If this draft is legalized, people frustrated with the impassivity of authorities may turn  agitational because in operation of projects without strong enforcement of EIA guidelines, many risks will remain in play.  Ignoring these factors at the start, and intentionally turning a blind eye to them despite the opportunity to incorporate them in the EIA study and address them at the initial stage is risky. Now there is emergent need  to offer a new way to think about project licensing processes and how to avoid such flaws in future. EIA processes could meaningfully inform more accurate economic indicators, as well as social and environmental points of concern, and could lead to decisions that avoid environmental harm, human rights violations, and costly work stoppages. Now It is most essential to make the EIA 2020 more participatory and democratic in nature.
With my best regards,

Debapriya Mukherjee
Name : Dr Debapriya Mukherjee                     
Former Senior Scientist
Central Pollution Control Board
Address : A-139, Survey Park, Santoshpur, Kolkata-700075
Mobile :  919432370163 & 916290099509

Sikkim at a Glance

  • Area: 7096 Sq Kms
  • Capital: Gangtok
  • Altitude: 5,840 ft
  • Population: 6.10 Lakhs
  • Topography: Hilly terrain elevation from 600 to over 28,509 ft above sea level
  • Climate:
  • Summer: Min- 13°C - Max 21°C
  • Winter: Min- 0.48°C - Max 13°C
  • Rainfall: 325 cms per annum
  • Language Spoken: Nepali, Bhutia, Lepcha, Tibetan, English, Hindi