The Brand-new problem - The EIA Notification, 2020!

India boasts of a well explained and a categorised list of environmental acts and policies which not only create an image of a responsible State but also ensures India's conformity with international laws and standards regarding the environment.

But recently this mirage was shattered when the Ministry of Environment, Forest and Climate Change (MoEFCC) introduced the EIA Draft Notification, 2020.  The notification has brought into light the draconian measures the policymakers and those in power are trying to take against the environment and has uncovered the loopholes that existed before the 2020 notification. This step has caused a hue and cry among the Indian stakeholders and has surprisingly awakened the general masses.

What is the Environmental Impact Assessment (EIA) Notification?

Environmental Impact Assessment or EIA Notification is issued under Section 3 of the Environment Protection Act, 1986, to impose restrictions on setting up new projects, any type of expansion or modernisation of existing projects. Section enforces that such measures must benefit the environment. This makes the Environmental Clearance(EC) prior to any such industrial activity compulsory.

In other words, it is the process of evaluation of any project (mentioned above) for the environmental impact it would cost and how it would affect the local community. As per schedule 1 of the environmental protection act, 1986 'For the purpose of protecting and improving the quality of the environment and preventing and abating environmental pollution, the standards for emission or discharge of environmental pollutants from the industries, operations or processes shall be as specified in 2[Schedule I to IV]'

Keeping in mind the various international conventions, MoEF came out with the first Environmental ImpactAssessment in 1994 under the Environmental Protection Act, 1986. The ministry has released 3 EIA Notifications - In 1994, 2006 and the very recent in 2020, so far.

EIA Notification, 1994

The first EIA notification came on 27th January 1994. It made it compulsory to evaluate and submit an EIA study report to the Impact Assessment Agency. It stated various objectives including prediction of the environmental impact of various projects beforehand, finding ways to manage and tackle environmental problems, shape projects according to local conditions and involve local communities for their views on the projects.

Schedule 1 of the act categorised the industries in two. Category A industries the ones that  would require a clearance from the Central Government whereas Category B industries would require a clearance from the State Government wherein sub-projects- B1 would require an EIA clearance whereas  B2 wouldn't.

The notification also consisted of 4 schedules:

• Schedule I: the importance of approval,
• Schedule II: the procedure involved for an approval,
• Schedule III: the composition of expert committees and
• Schedule IV: mandated public hearings.

It stated the roles and functions as well as the powers of the members of the Expert Committees.

Public Consultation- All Category A and Category B1 projects or activities have to undertake public consultation except for 6 activities for which public consultation has been exempted. Some of the projects exempted include expansion of roads and highways, modernization of irrigation projects, etc. Some of these may have a potential social and environmental impact.

Thus, the 1994 EIA Notification laid grounds for assessing the cost of environmental impact of various industrial projects providing a proper categorization based on their activities. It was one of the first steps after the Narmada Bachao Andolan to stop such industrial projects and activities to cause massive damage to not just the environment but also the local communities. The EIA notification 1994 was amended 12 times in 11 years. While most of the amendments diluted the process of the environmental clearance process, there were some, which also strengthened the process.

EIA Notification, 2006

The Union Ministry of Environment and Forest (MoEF) notified the new EIA Notification in September 2006 after putting up the draft notification for public comment for a year.

The objective of EIA Notification 2006 was to address the limitations in the old EIA Notification (1994).

It introduced various modifications:

- The 2006 notification decentralises power to the State Government. Earlier all the projects under schedule 1 went to the Central Government for environmental clearance. However, as per the new notification, a significant number of projects will go to the state for clearance depending on its size/capacity/area.

- The proposed notification also talks about ‘Scoping’, which was completely missing earlier. The terms of reference (ToR) of the project will now be decided by the SEAC at the state-level and by Environment Appraisal Committees (EAC) at the Central level.

- The New Notification has tried bringing in more projects within the purview of the environmental clearance process. As a result, a revised list of projects and activities has been redrawn that requires prior environmental clearance. Most importantly, there is no categorisation of projects requiring EIA based on investment, rather the size or capacity of the project determines whether it is cleared by the central or state government

Major Drawbacks of the new notification

• As the new notification in 2006 came into light, the members of civil societies and NGOs seemed dissatisfied by the changes it sought to introduce.
• One of the major drawbacks of the 2006 notification was that the public consultation as was earlier done will still be conducted at the end of the environment clearance process where there is very little scope for the public to play an active role. Also, there is a provision in the new notification where a public consultation can totally be foregone if the authorities feel the situation is not conducive for holding a public hearing.
• The new notification has also failed to mention if there would be some sort of monitoring of state-level projects by the central government.
• Though there is clear mention of appraisal in the EIA process, there is no mention of post monitoring, a very important part of the entire EIA process.

EIA Notification 2020

As the pandemic in India started to spread, the government imposed various restrictions on the movement of people. But before the people could come in terms with the pandemic, the draft EIA notification 2020 was released for public comments just before the day of the lockdown. This document created massive outrage among the environmentalists and civil rights activists more so because it asked for comments within 30 days of its release which was practically impossible because of the nationwide lockdown and the reach would have been limited keeping in mind the time frame.

But why was this document criticised?

As per the government, although there have been numerous amendments to the 2006 EIA draft, through implementing the directions of the Courts and National Green Tribunal, there is a need for 'more transparent, through the implementation of an online system, further delegations, rationalization, standardization of the process, etc.'

Thus the EIA Notification 2020 was released, but as many environmentalists argued, it seemed to look like fancy paperwork for a free pass to all the industries to exploit the environment without bounds and restrictions and massively dilute the rules and regulations mentioned.

The major follies that various stakeholders have pointed out are:

1.  The draft 2020, tends to change 14 out of 17 clauses mentioned in the previous EIA draft of 2006.
2.  Clause 26 of the draft exempts nearly 40 industries from the Prior ENVIRONMENTAL CLEARANCE process. For a massive number of projects, the idea of EIA stands diluted.
3. The time frame for public hearings has been reduced from 30 to 20 days without any justification or so. This brings to light the fact that the pandemic would completely restrict the public from attending hearings of projects and is a facade in the name of a provision like this.
4.  Clause 14(c) gives a vague definition of public consultation and gives an exemption to virtually every project, for example, the provision for relaxation given to companies for development in the area with 100km aerial distance from LAC covers almost all of the northeastern states which are rich in biodiversity and these provisions can cause serious damage to the environment. draft proposes to shorten public hearings and exempt some large industries from public hearings itself- includes irrigation, dam works, etc.
5. Clause 17(4) limits disclosure for public consultation by providing limited information to the public. For existing projects that may be merely looking to expand, the notification denies any need for public consultation, if the modernization is less than 50% of the project capacity, facilitating and streamlining piecemeal expansion processes for all existing projects. The Act further restricts the Right to report on compliances only to organisations, keeping the community out of the picture.
6. The draft introduces ex post facto environment clearance which allows the industries to violate the EIA norms first and seek clearance afterwards. Post facto approval will waive off the environmental damage which is already done by the project. It allows project owners to pay damages(very minuscule) and continue with the harmful project, diluting the punishment for offences and crimes against the environment.

Although the Supreme Court in a case of Ambelic Pharmaceuticals v. Rohit Prajapati and others passed a judgement saying, "Ex post facto Environmental Clearance is unsustainable in law."

Because of these changes, the draft has faced major criticism seen as a measure to dilute the entire idea of environmental protection under the garb of new rules and regulations to increase transparency.

People from a number of fields including environmentalists, lawyers, civil rights activists, policymakers and the general public at large have expressed their concerns on social media and have filed various petitions to revoke the draft suggesting some practical measures.

One of the major and popular petitions in the Delhi High Court by environmentalist Vikrant Tongad seeking an extension of the time to respond to the draft EIA 2020 till September has led the HC bench to order the Centre to publish the draft in 22 official languages and extend the deadline till August 11.

Another major judgement came after petitioners Advocate Prince Issac and Advocate Bhavya AC appearing on behalf of United Conservation Movement argued in the Karnataka High Court that such notifications should be given wider publicity which did not happen with the EIA notification depriving a large general [public of their legitimate right to file suggestions and objections. The Court said that the notification cannot be just limited to the official gazette and website and asked the Centre to give wide publicity to the EIA notification.

Recently, the Assam Gas leak famously known as the Baghjan gas leak is a petroleum and oil gas leak in OIL's Baghjan oilfield caused massive damage to life forms and livelihood in a region rich with biodiversity was functioning for over 15 years without prior consent to do so, said the State Pollution Control Board or the LG Polymers gas leak in Visakhapatnam that claimed lives of 12 people and injured many was operating for over two decades without environmental clearance.

Thus, these examples are an eye-opener to take strict precautionary measures to avoid such incidents in the future which is only possible if pre and post scrutiny and assessment is allowed in the EIA draft of 2020 among other suggestions. Also, looking at a scenario of a prevailing pandemic, instead of shortening the time frame of public hearings, it should be extended to a minimum of 45 days because even if virtual means have come into usage, people in remote areas cannot access it which makes them vulnerable to such changes without being able to voice their opinions.

References

• https://www.cseindia.org/eia-legislation-402
• http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf
• https://india.mongabay.com/2020/06/video-how-does-the-new-draft-eia-affect-the-environment-and-me/