Environment Impact Assessment of Development Projects: An Analysis of the existing law with special reference to Tribal Areas in India

INTERNATIONAL TREATIES FOR SUSTAINABLE DEVELOPMENT

The United Nations, through its conference on the Human environment held at Stockholm in 1972, realized the need to protect and improve the Human environment for the well-being of peoples, and economic development throughout the world.[1] It advised all the nations to adopt an integrated and coordinated approach to their development planning. This would ensure development is compatible with the need to protect, and improve the environment[2], for the benefit of their populations.[3] It also directed them to carefully devise appropriate planning and management of their natural resources for the benefit of their present and future generations.[4]More recently, the World Commission on Environment and Development[5], headed by Gro Horlem Brudtland, and the Rio Declaration on Human Declaration on Environment and Development,[6] have drawn the attention of the international community to the critical relationship between environment and development and have, in fact given a global perspective of environmentally compatible development.

The Rio Declaration contemplates a ‘sustainable development’[7]. It proclaims that the right to development must be equitable to the developmental and environmental needs of present and /future generations.[8] It insists that environmental protection must constitute an integral part of the development process.[9] It also appeals to all nations to conserve, protect and restore the health and integrity of the Earth’s ecosystem[10], and to reduce and eliminate unsustainable patterns of production and consumption to achieve sustainable development and a higher quality of life for all the people.[11] It like the Stockholm Declaration, directs all nations to enact effective environmental legislation;[12] to develop their national law regarding liability with compensation for the victims of environmental pollution and damage.[13] Moreover, the 80’s witnessed the continuing decline in the quality of the environment, together with the Bhopal gas tragedy which was a great disaster in the history of the world. Although no official count of casualties in Bhopal Gas Tragedy has ever been done, estimates based on hospital and rehabilitation records show that about 20,000 people died and about 5.7 lakh suffered bodily damage, making it by far the world's worst industrial disaster ever.[14]

This spurred the Central Government to adopt stronger environmental policies, to enact fresh legislation and to create, reorganize and expand administrative agencies. In 1981, the Air (Prevention and Control of pollution) Act was passed, and in 1986 as fallout of the Bhopal gas tragedy and Oleum gas tragedy, the Parliament passed the Environment Protection Act, 1986. This was an “umbrella” legislation designed to provide a framework for Central Government for coordination of activities of various central and state authorities established under previous laws such as Water Act[15] and Air Act[16].

EIA: - Introduction and its need

The modern technological state intensifies the conflict between environmental values and developmental needs.[17] Legal Strategies are necessary to reconcile the conflict, and to augment sustainable development.[18]Environmental Impact assessment is an instrument of reconciliation.

Environmental Impact Assessment is an effort to anticipate measure and weigh the socio-economic and bio-physical changes that may result from a proposed project.[19] It assists decision-makers in considering the proposed project’s environmental costs and benefits.[20]Where the benefits sufficiently exceed the costs, the project can be viewed as environmentally justified.[21]

It is essential that consequences of projects, plans or policies at different levels be assessed before they are executed. EIA examines these consequences and predicts future changes in the environment.[22]  It involves application of different types of knowledge and expertise. It is a multi-disciplinary process, resolving disputes among wide-ranging and conflicting interests in society. EIA has to encounter various stages of complex questions. First of all, a preliminary study is made to find out whether the project causes significant adverse effects. If the project causes such effects, EIA becomes necessary and vice-versa. Risk assessment has emerged as a major, if not dominant, analytical tool in supporting environmental decision-making within EPA. Risk assessment provides a means of presenting and evaluating scientific information and uncertainties, so that both decision-makers and the affected public can better understand the basis for environmental risk management decisions of EPA and other regulatory agencies are charged with making under existing environmental statutes.[23] The science supporting environmental regulatory decisions is complex and evolving rapidly, and many of the most important threats to human health and the environment are highly uncertain. Risk assessment can help in establishing a common basis of knowledge and uncertainty, so that EPA and other institutions can carry out the needed research, planning and decision making in a way that is consistent with both science and the public’s concern for environmental problems.

EIA provisions prior to the Notification of 1994

Institutionalization of impact assessment in India took place in the early eighties[24]. Prior to January 1994, EIA in India was carried out under administrative guidelines which required the projects proponents of major irrigation projects, river valley projects, power stations, ports and harbours, etc., to secure a clearance from the Union ministry of Environment and Forests (MEF).[25] The procedure required the project authority to submit environmental information to the MEF by filling out questionnaires or checklists. The environmental appraisal was carried out by the Ministry’s environmental appraisal committees. These committees held discussions with the project authority and on the basis of these deliberations, either approved or rejected the site. When approved, the project clearance was generally made conditional on specified safeguards.

EIA Notification of 1994

On 27 Jan, 1994, the MEF notifies mandatory EIAs under rule 5 of the Environment (Protection) Rules of 1986 for designated projects. The notification made it obligatory to prepare and submit an EIA, an Environment Management Plan, and a Project Report to an Impact Assessment Agency for clearance.[26] The MEF was designated as the Impact Assessment Agency and was required to consult a multi-disciplinary committee of experts. Under the January 1994 notification any member of the public was to have access to a summary of the Project Report and the detailed EMPs. Public Hearing was mandatory. Public Participation is built-in as far as the EIA is concerned. Public Participation provided local people and unrepresented interests with an opportunity to be heard and to participate in the decision making of the project that affects their environment and livelihood.[27] This represented India’s first attempt at a comprehensive EIA scheme.

Certain amendments made in 1994

On May 1994, the MEF issued an amending notification substantially diluting the January 27 notification. The amendment was introduced furtively, without pre-publication of the draft. With these changes, the project proponent was no longer required to submit a ‘detailed Project Report and the previous requirement of preparing both an EIA and an EMP, was diluted to now require either of these documents to be submitted.[28] The pre-requisite of securing environmental clearance from the Central Government before taking any measures at the site was weakened by the introduction of the expression ‘construction’, thereby restricting the prohibition to building activity. As amended, the clause permits the project proponent to building to initiate land acquisition proceedings and fell trees even before the clearance is given. Perhaps more invidious than the formal amendment to the parent notification, was an administrative guideline styled as an ‘Explanatory Note’ which was issued simultaneously by the MEF. The Explanatory Note restricted the Public access to an ‘Executive Summary’ of the environmental impact documents and further narrowed access to bonafide residents located at or around the project site or site of displacement or alleged adverse environmental impact’. Moreover, the Note diluted the comprehensive EIA Report requirement (covering one year) to a single season report, termed as a rapid EIA report.[29]  

Some Amendments made in 1997

On 10 April, 1997 some of the regressive changes introduced in May 1994 were undone by fresh amendments to the parent notification. The 1997 provisions restore public hearings, to be conducted in the manner prescribed. On the same day, the MEF published a separate notification prescribing the EIA procedure for clearance of certain types of thermal power plants requiring environmental clearance from the concerned state government.[30] The procedure to be followed under this notification mirrors the amended procedure prescribed for the central clearances.

EIA Notification, 2006

The EIA Notification 1994 gave way to a notification in 2006. There is a fundamental change. Both the Central agency and the state agency are given power to make impact study for projects of separate types with threshold limits. Ministry of Environment and Forests and the State Environment Assessment are the regulatory authorities to render clearance at the center and the states respectively. The notification provides for prior environmental Clarence before undertaking projects and activities scheduled therein. Expansion or modernization of existing projects or activities requires clearance. Any change in product- mix in an existing manufacturing unit beyond the specified range also needs an impact study.

The projects or activities are characterized as “A” and “B” in the schedule. The categorization is based on the spatial extent of potential impact and potential impact on human health and natural and manmade resources. Category ‘A’ projects and activities require clearance from MOEF on the recommendations of an expert appraisal committee constituted by central government. Category B projects and activities require prior clearance by SEIAA on the recommendation of state expert appraisal committee. These state authorities are constituted by central government. However in the absence of duly constituted SEIAA or SEAC category shall be regarded as Category ‘A’ requiring Clarence from central govt.   

CRITICAL ANALYSIS OF EIA NOTIFICATION, 2006

EIA Notification, 2006

· The process by which new notification came into existence is a serious concern.

The most critical concern about the new notification is the process by which it has come into existence. Consultations on the draft notification were held only by representatives of industry and central government agencies, as per the ministry’s own submission.[31] State government, Panchayats and municipalities, NGOs, trade Unions and local communities were partially kept out of the process. This inherent bias of the Ministry to negotiate with industry on what an environment regulation should be clearly carries through the text of the notification as well. Hence, the very foundation of this notification contains bias towards industries.

·EIA Notification, 2006 has done a categorization of projects which vests power to the State Government to grant clearance without any proper system of checks and counter-checks.

The EIA notification, 2006 has done a categorization of the projects i.e. Category ‘A’ projects and Category ‘B’ Projects. Notification clarifies that in case of Category ‘A’ projects, clearance has to be granted by MoEF whereas in Category ‘B’ projects, clearance is to be granted by State Environment Impact Assessment Authority (SEIAA).[32] The problem here is that the notification has granted the responsibility of granting clearance to the State government without any proper system of checks and counter-checks. Most of the times, the state government is directly involved in seeking investments. The State government always tries to ensure that they can get as much investment as they can and therefore there remains a possibility that most of the projects will get clearance. Hence, this is a clear flaw in the EIA Notification, 2006.

Construction Projects

The inclusion of construction projects in the Category ‘A’ of EIA notification, 2006 for getting environment clearance is a sham. The notification specifies that the Construction projects above 1, 50, 000 sq m come under Category A. The limit given here is so huge that in real there are no such projects of this huge size. The construction projects also need not to go through the stages of screening or scoping as they are exempted from doing EIA studies. They are also exempted from conducting public consultation process.

Hence, the inclusion of construction projects in the notification is only for the purpose of granting clearance by the SEIAA on the basis of application form.

· Inadequate Provisions regarding the issue of monitoring and compliance by the project proponent.

The new notification deals only with the process of grant of environment clearance which is divided into 4 stages i.e. Screening, Scoping, Public Consultation and Appraisal. It does not contain adequate provisions regarding the issue of monitoring and compliance. There is only a provision which mentions the submission of the six monthly compliance reports by the project proponent. The earlier notification of 1994 obligated the MoEF to maintain its independent monitoring Report which is absent in the new notification. Hence the responsibility of the government should not end up here. There should be adequate provisions regarding monitoring and compliance even after clearance is granted. The ground realities have shown that project proponents has often violated State and Central laws and for non-compliance of clearance conditions. The ministry’s report on the Teesta-V hydroelectric project in Sikkim itself lifts the curtain that there was a serious non-compliance by the project proponent and most of the times, it failed to take appropriate direction. Further, provisions regarding role of local community groups in the monitoring of projects should be established.

· Sole dependency on the information provided by the applicant: - whether to consider project as B1 or B2.

Screening:- There are two kinds of Category B projects i.e. B1 and B2 which are two be cleared by the SEIAA.[33]  If a project is falling under ‘B1’ category, EIA is required to be conducted which is not needed in case of projects of Category ‘B2’. The decision as to whether the project belongs to B1 or B2 category has to be done on the basis of the information provided by the applicant.

Hence, total dependency on the information given by the applicant in the application cannot be accepted. The appropriate authorities (SEIAA) should conduct some investigation in this regard rather than solely relying on the information provided by the applicant.

Also, there is no provision in the notification that restricts the SEIAA from transferring projects from Category B1 to Category B2 which will result in not requiring any EIA needs and public hearings.

· Exemptions from Public Consultation: -

The new notification mentions a list of activities which are exempted from the purview of public consultation. There are 6 sets of activities which are exempted from the process of public consultation which are as follows:-

 (a) Modernization of irrigation projects.

(b) All projects or activities located within industrial estates or parks approved by the concerned authorities, and which are not disallowed in such approvals.

(c) Expansion of Roads and Highways which do not involve any further acquisition of land.

(d) All Building /Construction projects/Area Development projects and Townships

(e) All Category ‘B2’ projects and activities.

(f) All projects or activities concerning national defence and security or involving other strategic considerations as determined by the Central Government.

There is no logic in giving exemption to the above mentioned projects from the process of EIA and public consultation as it substantially affects the local people. It is clear from this provisions that Ministry is not willing to address the concerns of the local affected people.

· Availability of Draft EIA report to the Public:-

 In the new EIA notification, the law only provides accessibility to the public of the draft of EIA report. It does not allow to the public to have access to the final EIA report which may result in several ill consequences. There are several examples in which the project proponents have tried to mislead the government about their projects. India has witnessed a series of misleading EIA reports which do not accurately disclose the necessary and complete information regarding and project and its consequences.

The notification mandates that the draft EIA report with the generic structure should be made available to the pubic before the Public hearing. However, it does not contain any provision that that the draft report should contain adequate information about the environmental impacts of the projects. Hence, if the draft report is less informative or does not contain adequate information about the project, public hearing will be just a formality.

Hence, it is necessary for the projects proponents to provide access to the Final EIA report on the basis of which they are granted clearance or even the draft report with some high degree of information about the project would work.

Also, there is no mention of anytime period in which the Draft report should be made available to the public before the public consultation which was present in the 1994 notification. A time limit of 30 days prior to the public hearing was given in the 1994 notification which is absent in the new notification.

A study by Sinclair and Diduck(1999) concluded that public hearing in India, 'as the main vehicle for public involvement' suffers from several deficiencies with respect to information, process of hearing, operational deficiencies and contextual constraints like lack of economic development and inadequate institutional capacity".[34]

· Cancellation of Public Hearing: - The new notification contains a clause which allows the applicant not to conduct public hearing or cancel the public hearing if the local conditions are not conducive. This clause is often misused by the project proponents and regulatory authorities to avoid the concerns of the local affected people.

There are several examples which India has witnessed in which concerns of local affected people were ignored and the public hearings were cancelled.

BCCL Cancelled Public Hearing at Dhanbad

Tribal people from 14 villages of Jharkhand’s Dhanbad district wore black ribbons around their foreheads for the public hearing of the proposed coal mining project of Bharat Coking Coal Limited at Karpuria block. Their loud protests led to the public hearing being cancelled within an hour of its start on Tuesday morning.[35] They were not informed about the hearing which was organized in officers’ club, far from Bharat Coking Coal Limited’s project site.

Hence, this clause needs to be struck off immediately.

· Composition of Screening, Scoping and Appraisal Committees: - The earlier EIA notification included social scientists, ecosystem experts or NGOs in the Screening, Scoping and Appraisal committees which led to a fair determination of the ill consequences of the project and which ultimately benefitted the local people who are going to be affected by the project. But the new notification does not mentions that social scientists, ecosystem experts or NGOs should be included in the Screening, Scoping and Appraisal Committees which is a major setback in this notification. This lacuna needs to be rectified as it substantially affects the concerns of the people.

· ILO Convention 169 regarding the Rights of Indigenous People

In its pursuit of universal social justice, the International Labour Organization has been concerned with the situation of indigenous and tribal peoples virtually since its inception. Its longstanding engagement in this area led to the adoption in 1957 of the first international instrument concerning indigenous and tribal peoples’ rights, the Indigenous and Tribal Populations Convention (Convention No. 107)[36] to which India is a signatory.

Article 12(1) of the ILO Convention No. 107 states that  the populations concerned shall not be removed without their free consent from their habitual territories except in accordance with national laws and regulations for reasons relating to national security, or in the interest of national economic development or of the health of the said populations. Further, Article 12(2) states that when in such cases removal of these populations is necessary as an exceptional measure, they shall be provided with lands of quality at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. In cases where chances of alternative employment exist and where the populations concerned prefer to have compensation in money or in kind, they shall be so compensated under appropriate guarantees.

Hence, it can be inferred the importance given to tribals from the provisions of this convention regarding their consent when it comes to removing them from their habitual territories. As per the provisions of this convention, they only can be removed from their land when it is essential for reason relating to national security, national economic development or for the health of the said population in accordance with national laws and regulations. However, in India, the scenario is a bit difference. Often tribals are thrown away from their habitual territories bypassing public consultation using cohesive measures and with no other alternative land rendering them unemployed and stretching away their means of livelihood. Since, India is a signatory to the above mentioned convention, it should consider the due process provided in the convention when acquiring the lands of tribals.

Vedanta Aluminium Ltd. Case:-

Niyamgiri Hills is one of the most important biodiversity hotspots in the eastern India. It is a home to the Dongria kund which is one of the India’s most isolated tribes. The Dongria Kund number around 8000 people and their economy is based on the gathering of forests produce in these hills.

In 2003, Sterlite now called as Vedanta Aluminium Ltd. signs a pact with Orissa Mining Corporation for bauxite mining in Niyamgiri Hills. In pursuance of this agreement, Vedanta Aluminium Ltd starts one million ton aluminium refinery at Lanjigarh, hoping to get bauxite from Niyamgiri. The Lanjigarh Refinery was producing millions of tons of caustic soda every year which resulted into damaging crop yields, killing livestock and causing pollution related diseases and thereby it affected the tribal communities that were dependent on it.

In October, 2007, Vedanta Aluminium seeks environmental clearance for 6 fold expansion of the refinery which was granted stay by the Supreme Court.

The findings of Amnesty International’s described clearly demonstrate that the refinery expansion and mining project was having serious implications for the human rights of local communities, including their rights to water, food, health, work and an adequate standard of living.[37] The report states that local communities had received little or no accurate information on the refinery, its proposed expansion or the mining project.[38] Further, the report finds out that the processes to assess the impact of the projects on local communities was wholly inadequate, and both the state and national governments have failed to respect and protect the human rights of communities as required under international human rights law. The companies involved in the mine and refinery projects had ignored community concerns, breached state and national regulatory frameworks and failed to adhere to accepted international standards and principles in relation to the human rights impact of business.[39]

In August 2008, Supreme Court cleared the mining project by Sterlite India-Orissa Mining Corporation with certain conditions on sustainable development of local communities, protection of environment and conservation of wildlife.

Thereafter, Orissa State Pollution Control Board (OSPCB) conducts Public Hearing on the refinery expansion and reports to the MoEF that the local communities favour the project, despite significant opposition, questioning and protests. Hence, the clearance was granted by MoEF based on the reports of OSPCB.

As no option was left to the people, they filed a petition in the National Environment Appellate Authority against the MoEF decision to grant environment clearance for the mining project. Thereafter in July, 2010, the Union Environment Ministry and Orissa Chief Secretary ordered separate probes into whether mining will impinge the rights of Dongria Kondh Tribals living in Niyamgiri. It was found out by the probes that Vedanta had violated forest and environment laws in collusion with state officials and thereby Union Environment Ministry rejects earlier clearance given to the joint venture. In April 2013, the Supreme Court ordered Gram Sabhas to be held in 12 villages in the area to determine the views of forest dwellers on mining.

·  Tata Steel Plant At Kalingar, Orissa

The deliberate mishandling of an environmental public hearing on 27th July, 2005 for the Tata Steel plant at Kalinganagar, Orissa was a turning point in the events that subsequently unfolded. Not only did the Government fail to appreciate the importance of involving the public in decision-making, but also proceeded to acquire land in active collusion with Tata Steel, (despite the widespread resentment against the manner in which the environmental public hearings had been held). Tensions continued to build over the months and finally resulted in the senseless killings on 2nd January, 2006 - where 1 policeman and 12 protesting tribals were killed, while 41 others were injured.[40] The protests that were brutally suppressed by the police hinged on the fact that land was acquired for the steel plant without any kind of consent from the local and affected populations.

CONCLUSION AND SUGGESTIONS

India to fulfill its international obligations has come with the present EIA notification to assess the impact on environment in case of any new project or activity which might affect the environment and then to decided whether that project or activity should be started or carried out or not. The present notification fails in its primary purpose as it suffered from serious flaws.

The foundations of this notification can be questioned as the consultations were held only by the representatives of industry and central government agencies. Hence, there surely lies a question of bias towards the industrialists. Further, the notification has granted the responsibility of granting clearance to the State government without any system of checks and counter checks. This is one of the biggest flaws in this notification as most of the time state governments will be an interested party if some investment comes in its state and will grant clearance without adhering to the norms.  A clear cut policy needs to be laid down by the Central Government on the basis of which State Government should grant clearance to a project. If the present law persists, State governments will continue to grant clearances to the industries neglecting the laws.

The Construction project limit given in the EIA notification, 2006 is 1, 50, 000 sq m which are required to go through the stages of screening or scoping. In practicality, there are no projects of such a huge size. Hence, the provision of including construction projects in this notification is a sham attempt.

The present law does not contain any provision regarding monitoring and compliance by the project proponent. The earlier notification of 1994 contained a provision which obligated MoEF to maintain its independent monitoring report which the new law abstains from. Hence, there should be some provisions to check if there is a violation of State and Central Laws.

The decision to be taken by SEIAA as to whether the project fall in category of ‘B1’ or ‘B2’ is to be done on the basis of information provided by the applicant.  This provision is illogical as any project proponent does not want his project to undergo the process of EIA and hence, he can skip giving some material information about the project which may result in putting of his project in B2 category which will result in exclusion of public hearings for that project. Therefore, this provision needs to be dealt with in detail and the approach of solely relying on the information provided by the project proponent should be immediately stopped. A separate agency should be formulated to enquire into the details of the proposed project and to decide upon the necessity of EIA process. Besides, the notification mandates the accessibility of a draft of EIA report to the public and also there are no standards set as to the degree of information which should be made available to the public. There are several instances in which the project proponents have provided misleading EIA reports to the public. Therefore, law should clearly define as the degree of information provided in the EIA Draft. Strict penalties should be brought into the picture in case a project proponent provides less information or conceals material information in the draft EIA report.

The most important issue in the new notification is related to the public consultation process. There are 6 sets of activities which are exempted from the process of public consultation. However, no logical deduction can be made as to why these activities are exempted from the public consultation process. India has witnessed several instances where people were forced to accept the project. Though we are a signatory to ILO Convention no. 107 which mandates consulting tribals when removing them from their habitual place, but violating all the laws and morals, State governments and industrialists throws away tribals from their place in the name of development. The primary purpose of doing ‘Public Consultation Process’ is to understand the need of the residents and then to decide upon the project. The Scenario in India is pathetic, tribals in Jharkhand, Orissa and Bengal etc are made to leave their habitual places by showing them the fear of gun. They are neither properly compensated nor are given any alternative land. Their screams with pain are lost somewhere and the government do nothing which is evident from the acquisitions took place in NOIDA from the farmers.

Therefore, strict laws should be formulated concerning the Public Consultation Process. State government should not be vested with the power of conducting Public Consultation instead a separate agency should be formed under MoEF to conduct Public Consultation. A State government is most likely to have an interest in the investment taking place in it. Therefore, a body under Central Government is likely to conduct ‘Public Consultation Process’ in a transparent manner as compared to the State agencies.