Authored By: Ajitesh Arya
In rudimentary terms ‘Environment’ can be defined as the ambiance with which we share a symbiotic relationship, which contributes to the overall human development, without which our life may become unfathomable. Hence, there is a pressing need for a clean and wholesome environment, ergo the Supreme Court in a catena of judgments has regarded the right to clean environment as a fundamental right and a natural aspect flowing out of Article 21 as asserted in Charan Lal Sahu v. Union of India. The Environmental Impact Assessment (EIA’) is just another way to protect and preserve the environment along with the developmental project. EIA is the evaluation of the environmental impacts which are likely to occur as a consequence of a proposed plan, action, and policies done before a green signal is awarded to it. This can be understood with the help of an example. Suppose an industry is going to be set up in an area, so before giving clearance to such apparatus, the industry has to go through an EIA, in which the view of the environmentalists will be taken and answers of certain questions will be sought such as how the industry is going to affect the environment. Would it be environmentally propitious to have an industry in that area? Would it lead to the displacement of the local population? Is it desirable to have such an industry at the expense of environmental degradation? Also, the view of the local population will be taken into consideration. It is done to give the citizens or to be precise the civil society a share in the decision-making process as they are important stakeholders.
EIA traces its origin to the Environmental Protection Act, 1986 through which the Central government is bestowed with the power to issue the EIA norms. The first set of EIA norms were released in the year 1996 and the last one was in 2006 which is sought to be amended by the latest EIA draft 2020.
Environmentalists, lawyers, members of civil society are raising red flags insinuating the dilution of EIA norms. The 2020 draft puts the environment in dire straits and makes it easy for an industry to pollute the environment without obeying reasonable necessary directions. Concededly, it is a proven fact that industries and other similar kinds of apparatuses harm the environment; however, we cannot stop industries squarely, as it is necessary for the growth of our nation. We should rather go for a balanced approach, where both will be allowed to exist without causing any hindrance to each other. The amendment brought by the Ministry of Environment, Forest and Climate change seeks to amend 12 out of 14 clauses contravening international commitments.
As soon as the draft was unveiled, environmentalists, scholars, and human rights activists ceased upon the opportunity to flag the problematic and harmful aspects of the draft. An analysis of some key criticisms is as follows-
- Post Facto Approval– This is one of the features of the new EIA draft, which has been widely criticized. Post facto approval means that a project can start without following the due process or complying with the precautionary norms and later they may get approval. This in turn means that a project is allowed to run even without a green signal from the appraisal committee (committees constituted for scrutinizing the applications). Till then, they can pollute the environment. Interestingly enough, if they subsequently get a clearance, damage caused by them would be waived off. Fines may be imposed but that would not have any effect on the irreversible damage caused by such pollution. The point which they are trying to make is that EIA is all about precaution, which alludes to the fact that if a project poses a serious threat to the environment, it should be assessed beforehand and disallowed rather than letting it harm the environment. We are not unaware of the consequences of situations when the projects are run without clearances, Visakhapatnam gas leakbeing a recent example. This amendment is a death knell to the precautionary principle recognized by the Supreme Court of India in T.N Godavarman Thirummalpad v. UOI.
- Public Consultation Process– The basic purpose of EIA is to garner the opinion of the public affected by a new project as to what is their take on such momentous issues. This requirement is highly compromised by the new EIA draft. Clause 14(1)(c) of the draft gives discretion to the regulatory authority to conduct public consultations through any means without looking at the accessibility of such means. This lethally strikes the notion of participatory governance. Clause 16(1) of the draft further denies the public consultation for the modernization of already existing projects, if the modernization is less than 50%. This denial can potentially affect the lives and livelihood of thousands of people. Lastly, the draft reduces the time limit from 45 days to 40 days for the public to submit their responses. Such public hearing would become meaningless if less time is given to prepare and formulate cogent points. If we look at the communities usually impacted by a project, they are fishing, farming, and tribal communities. These people are poor and do not have ready access to information or mastery over English. They cannot form a cogent response within a short notice of 40 days. So there should be more time allotted.
- Circumventing Environment Impact Assessment- The new draft gives unbridled power to the central government to label a project as ‘strategic’ under clause 5(7) of the new draft. The consequences of this would be that once a project is categorized as ‘strategic’ the project needs not to go through the whole process of EIA. No public hearing, Nothing. Also, if there is any violation of environmental law, the same can only be reported suo motu by the government authorities, appraisal committee, and by the industries. The public is disentitled from bringing their grievances. This unfettered power of the State increases the probabilities of breaches like Essar Power Ltd. breachby other petroleum, power, and other polluting industries. Another criticism that is levelled is that the schedule attached to the draft provides that a land admeasuring 1,50,000 to 2,00,000 will neither require clearance from the expert committee nor public discussions or opinions will be entertained.
- Compliance Issues- The 2006 EIA norms under clause 10(ii) required the proponent of the project to send reports to the regulating authority, every 6 months, as to whether the project is working according to the terms and conditions set out in the grant or not. Surprisingly, clause 20(4)of the new draft extends it to 1 year. This heavily increases the chances of pollution or the harm going unnoticed. This may often happen in an area where there are a lot of projects going on. Fixating burden on an erring enterprise would become difficult, as the time limit of submitting the report has been increased to 1 year. Hence, as a result, it may cause an irreversible loss to the environment.
Conclusion and Suggestions
This high-handedness on the part of government is culpable. The government should focus on increasing the reach of information among the masses. Hence, the time limit to file the response should be either kept as mentioned in the EIA notification of 2006 or be increased to 60-120 days. In a bid to improve its ranking from the current 63rd rank in ease of doing business, the government is taking dangerous steps, jeopardizing the environment, rather it should focus on reducing the average delay required to obtain clearances due to bureaucratic delays and red-tapism . We need stricter laws in our system to protect and preserve our environment and to ensure that there is an equitable and sustainable use of natural resources so that even the poorest person of the society can successfully derive benefit from it. The most ignored sect of populations is Adivasis, who are dependent on such natural resources for their livelihood and proper conduct of their lives. It must be borne in mind that such catastrophic and immediate change in environmental impact assessment norms would have a direct and horrid impact on the living and working conditions of such vulnerable people. If the government is failing abysmally in doing its job that is to bring environment-friendly laws, then we must take it on ourselves and request the Parliamentary Standing Committee on environment and forest to look into the matter and do what is necessary. In these recent times, India has seen a lot of man-made disasters, be it Bhopal gas tragedy or Visakhapatnam gas leak. This new EIA draft will also be a man-made disaster if we do not nip it in the bud. The new EIA draft hits at the core of the environmental protection regime. Therefore, it is abundantly clear from the above-mentioned discussion and the policies of the government that issues relating to the environment or climate change lie low in the priority list of the government of India. The new EIA draft seeking to amend 12 out of the 14 clauses severely damaging the environment and hence it should be withdrawn.
The author is currently an Undergraduate student at NALSAR University of Law, Hyderabad.