Rethinking EIA 2020

A signatory to the 'Stockholm Declaration (1972) on Environment', India enacted laws to control water (1974) and air (1981) pollution soon after. But it was only after the Bhopal gas leak disaster in 1984 that the country legislated an umbrella Act for environmental protection in 1986. Under this Act, India notified its first Environmental Impact Assessments (EIAs) norms in 1994, setting in place a legal framework for regulating activities that access, utilise, and affect (pollute) natural resources. Every development project has been required to go through the EIA process for obtaining prior environmental clearance ever since. The 1994 EIA notification was replaced with a modified draft in 2006. Further, the Government redrafted it 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.

Recently, the draft EIA 2020 to update the EIA notification 2006, was put in the public domain on March 12 and the Ministry of Environment, Forest and Climate change (MoEFCC) has sought views and comments from all stakeholders on it within the next 60 days. But a critical evaluation of this draft clearly revealed that the changes made in the draft EIA 2020 are contrary to the principles of environmental protection and sustainable development with reference to EIA notification 2006.

Though the EIA process has been established to safeguard the environment, the incidents already happened one after another starting from Bhopal gas tragedy to recent boiler explosion in Cuddalore in Tamil Nadu clearly exposed that 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 the Government of India has been endangered. In India, the 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. Because enforcement is poor, corruption is rampant, and the justice system is slow. But the revelation of corruption or manipulation in EIA is tricky and difficult to prove because it is a practice inherently subtle. 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. Maybe, in this view, Government of India has felt necessary to put the draft EIA 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 favour of the industry. Critical appraisal of draft EIA 2020 clearly reveals that MOEF&CC legitimises violations by those who start projects without environment clearance, weakens the public consultation process and gives a lot of discretionary powers to authorities. 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 draft 2020 simply ignores this cardinal principle of prior environment clearance and permits post facto regularisation of environment violations by paying fines so long as the project is permissible in the area. 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.

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 ecosystems.

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 a clear indication of the Government's negligence in maintaining the natural ecosystem that is practically 'ecocidal'. 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 overexploitation of natural resources in the name of so-called development that cannot maintain equilibrium among economies, society and environment.

While projects concerning national defence and security are naturally considered strategic but the government can designate any other projects as of strategic importance in name of energy security or any other, out of any public scrutiny and push the project.

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.

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 in monitoring mining areas, it may be mentioned that such long time clearances would increase the risk of irreversible environmental, social and health consequences.

This draft has reduced the time period from 30 days to 25 days for the public to submit their responses during a public hearing for any application seeking environmental clearance. The time 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 will be not adequate. Thereby, such public hearings would not be meaningful and the whole EIA process would lack transparency and credibility.

In the 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. The backbone of environment clearance rules is monitoring the conditions 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 that if the Government would throw caution completely to the wind to make good the GDP loss to the economy, then this will make a mockery of its commitment to the global community made in the United Nations Climate Change Conference 2019 (COP 25).

If this draft is legalised, people frustrated with the impassivity of authorities may turn agitational because in the 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 an emergent need to offer a new way to think about project licensing processes and how to avoid such flaws in future.

The writer is a former Senior Scientist, Central Pollution Control Board. Views expressed are personal