Can The EIA Law In India Broaden Its Horizon?

There is little doubt that the Environment Impact Assessment (EIA) process, practice and law is core for the environmental legal regulation in India. EIA is a tool designed to identify and predict the impact of a project on the bio-geophysical environment and on man's well-being, to interpret and communicate information about the impact of a project, to analyse site and process alternatives and provide solutions to sift out, or abate the negative consequences on the environment.^[1]

In India, the EIA regime includes multiple stages of assessment including public consultation, thereby involving the participation of stakeholders. It enables the government to impose conditions and thresholds on the undertaking of some projects or expansion or modernization of such existing projects entailing capacity addition considering the environmental impacts of such projects. The present Draft Notification, 2020, as envisioned, seeks to make the process more transparent and expedient through implementation of online system, further delegations, rationalization, standardization of the process. It is set to supersede the erstwhile 2006 Notification with many amendments in place. Unsurprisingly, the Notification has come under criticism from several stakeholders and has also received stiff opposition for many changes that it proposes to bring about in the existing framework. The Notification also supports the constitutional bifurcation of powers and manifests a three-tier regime towards the conduct of EIA, while at the same time providing for a nexus of the control with the Ministry of Environment, Forests & Climate Change, Government of India. The Draft EIA Notification has introduced many sweeping changes posing concerns about environmental governance and has been criticised to be regressive for watering down norms of environmental law and management. Upon a cursory glance of the Notification, it depicts the reduction in scope and stringency of EIA process thereby weakening the existing environmental regulations and promote high-risk activities. In this Article, the author has made an attempt to understand the issues and come out with recommendations to ensure a balance between addressing the environmental concerns and economic development.

WHAT'S ALL THE FUSS ABOUT?

The first issue is about the Post-facto Environmental clearance which provides for the condonation of violations posing severe environmental risks. Even though the concept of ex post facto or retrospective Environmental Clearance (EC) is not completely alien to the environmental jurisprudence. The Ministry of Environment and Forest has issued a notification in March 2017, wherein 60 days was granted for projects, which had started work on site, expanded the production beyond the limits or changed the product mix, which were operating without EC, to seek the EC and fall in compliance of environmental regulations. In fact para 11 of the above notification states: 'And whereas, the Ministry of Environment, Forest and Climate Change (MoEF&CC) deems it necessary to bring such projects and activities in compliance with the environmental laws at the earliest point of time, rather than leaving them unregulated and unchecked, which will be more damaging to the environment and in furtherance of this objective, the Government of India deems it essential to establish a process for appraisal of such cases of violation for prescribing adequate environmental safeguards to entities…'.

The Courts, though inconsistently, have denounced the idea, as it strikes at the very root of the precautionary principle and works as antithesis to the anticipatory approach of managing environmental risks in prudent manner. Supreme Court of India in the case of Alembic Pharmaceuticals^[2], has observed that the concept of an ex-post facto EC is in derogation of the fundamental principles of environmental jurisprudence. Despite the concerns about the repercussion of post facto clearances, the provision has been strengthened. The process of Environmental Clearance and Environment Impact Assessment are integral part of the decision-making process. Therefore, the Notification should be renamed as the "Environmental Impact Assessment and Environmental Clearance Notification" (EC-EIA Notification) to reflect the clear lines of distinction between the two processes. In order to enhance transparency and to streamline the EIA and EC process into one robust framework, the change becomes necessary. Grant of EC being an administrative function some elementary principles have to be followed including the, Principles of natural justice, a reasoned Order, power to cancel/withdraw/renew and provision of appeals are to be expressly included in the Notification.

The second issue is about the Recategorization of the projects and public consultation. In the draft Notification, the Category-B2 projects have been excluded from the purview of Public Consultation. The watering down of high-risk projects from Category-A to Category-B2 has serious consequences. Categorization in the Draft Notification overlooks social and environmental impacts of projects. The phrase 'plausible stake' in the said draft Notification has scope for dilution of public consultation. This may lead to the industries by-passing the stringent scrutiny by the Expert Appraisal Committee. The Draft Notification has been loaded with scientific terms and technical jargons, which renders the whole process ineffective and affects the 'informed' decision making process. The Draft Notification also provides for blanket exemptions from Environmental Clearance. Public participation and consultation are fundamental processes in a democratic setup. As has been held by the Supreme Court in Hanuman Laxman Aroskar^[3] held that the Rule of law requires a regime which has effective, accountable and transparent institutions. Responsive, inclusive, participatory and representative decision making are key ingredients to the Rule of law and public access to information is fundamental to the preservation of the Rule of law. It guarantees legitimacy of actions, transparency in decision making process and accountability of project proponents. Public consultation is the only legal avenue through which affected parties, local communities, public spirited citizens and the general public may voice their concerns. Public consultation cannot be reduced to mere formality as it is intrinsic part of Constitutional values in the democratic system of governance. Article 51A(g) of the Constitution imposes a fundamental duty on every citizen to protect and improve the environment. It, therefore, becomes essential that this process be conducted with utmost diligence and with due regard to the interests of the stakeholders. Public hearing has been a part of several legislations including the Biological Diversity Act of 2002,^[4] Forest Rights Act of 2006,^[5] Land Acquisition Act 2013,^[6] Electricity Act 2003^[7] and such other laws. Hence, it is suggested that the EC-EIA notification, wherever necessary and possible, should organise public hearings with concerned stakeholders. A provision to the effect that defines explicitly what amounts to violation vis-à-vis public consultation has to be incorporated. This definition must include failure of the State Pollution Control Boards, Union Territory Pollution Control Committees and the Regulatory Authorities to conduct public consultations in the manner as provided in the Notification. This will save time, resources and will reduce the scope for frequent intervention by the Judiciary. Further, the exemptions granted should be based on sound Environmental Management Principles applicable on a case-to-case basis, and not by means of a blanket-exemption. It will also, to a large extent, help achieve sustainable development goals with human rights governance.

Appointments, Duties and Functions of Expert Appraisal Committee (EAC) requires some amendments. EAC, being an expert body, determines the specific Terms of Reference for projects and provides recommendation to the concerned regulatory authority for grant or rejection of EC. Independence of such a Committee, established at Central, State and District levels, is undeniably crucial as the decision-making process has to be objective. It is also further suggested that the provision about eligibility criteria is rather broad and smacks of environmental expertise. In order to achieve this, the eligibility criteria for the appointment of the chairpersons of the State level EACs, Union Territory level EACs and the District Level EACs has to include a person having knowledge and expertise in Environment, as a mandatory requirement. In the present form, EAC has a fixed tenure of Three-years for its members. Therefore, to ensure permanency, it is suggested that the EAC must be given a statutory status. Chairperson of EAC must be one from Pollution Control Boards, MoEF&CC Officers or from other environmental institutions rather than appointing bureaucrats. From the perspective of procedure, the Notification also lacks the provision on Conflict of Interest, wherein before conducting appraisal of any project, every member of the EAC must compulsorily disclose any conflict of interest with the project proponent or any related party. Such disclosure guarantees independence, freedom from bias or undue influence in the appraisal stage and EIA process as a whole. The process can be further strengthened by making declarations by swearing affidavit by the project proponent or the EIA Agency to the effect that the reporting was free from any bias and undue influence to the best of their knowledge. The Notification should also mandate that the EAC be bound by principles of environmental governance such as the precautionary principle, polluter pays principle, principles of sustainable development and intergenerational equity and doctrine of public trust.

Compliance and Monitoring, and handling of violations by the concerned authorities requires to be revised. Draft Notification also defines the term 'violation' under Clause 3(60)^[8]. It has been defined in context of securing Prior EP or EC. The violations as envisioned in the said provision refers to those illegal actions carried out in derogation of the duty of project proponents to avail prior-EC or prior-EP either for commencing a new project or expanding an already existing project that has been cleared with prior-EC/EP. The definition in no manner includes or makes a reference to any derogation or dereliction of duty in the process of conducting an environment impact assessment by the project proponent. In order to tackle the issue of deliberate violations for giving false, misleading information or preparation of false report or forged data must attract severe penalty to the extent of Rupees Five Lakhs along with barring the agency for a period of Two-Years to ensure accountability in the whole process. There must be a clear definition of what constitutes a 'violation' vis-à-vis the EIA process and 'violation' of EC norms. That apart, violations in the EIA process must be recognised explicitly and enumerated. These violations should take into account the following circumstances:

• Failure in conducting scientific study for assessment of a proposed project.
• Furnishing of false information by any member of the appraisal committee.
• Intentionally furnishing false reports or false data.
• Undue delay in conducting an assessment/appraisal or in production of reports.

Draft Notification lacks clarity on the Procedural and Substantive violations, wherein there is failure in terms of non-compliance with the conditions of prior-EC or EP, no personal liability on project proponent has been imposed. At present, the only remedial action is ordering closure of project. However, considering the irreparable damage to environment, imposition of personal liability with higher penalties along with criminal liability, shall be an effective way of handling violations. In order to supplement this, a Bank Guarantee [the March 2017 MOEF notification mentions this] may be sought from Project proponent to ensure compliance. Another significant addition that has to be made is under Clause 22(1) wherein the cognizance of violations shall include 'disclosure made by any employee engaged in the gainful employment of the project proponent or any other person who may be likened to a whistle blower' and 'disclosure made by any public-spirited person'.

The Notification must also state in express terms the definition of 'Environmental Clearance', 'Forest Clearance' and 'Coastal Regulation Zone Clearance'. As the process of granting EC is in light of the Environment (Protection) Act, 1986, it is integral to specifically include the process and procedure involved in granting forest clearances under the Forest Conservation Act 1980, and the regulations made thereunder.

STRIKING BALANCE

In India, courts have time and again expounded environmental principles such as the precautionary principle, the polluter pays principle, principle of sustainable development, principle of inter-generational equity and the doctrine of public trust. For instance, in the case of Vellore Citizens' Welfare Forum v. Union of India,^[9] the Supreme court explicitly recognized the precautionary principle and principle of sustainable development as an essential part of the law of the land. The Court held that "Environmental measures by the central government and the statutory authorities must anticipate prevent and attack the causes of environmental degradation and where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation". Similarly, in the case T. N. Godavaraman Thirumulpad v. Union of India (UOI) and Ors.,^[10] the Supreme Court held that "adherence to the principle of Sustainable Development is a constitutional requirement, and that it is the duty of the State to devise and implement a coherent and coordinated programme to meet its obligation of sustainable development based on inter-generational equity." In the cases such as M.C. Mehta v. Union of India & Ors.^[11] (Taj Trapezium Case) and M.C. Mehta v. Union of India &Ors.^[12] (Ganga Pollution Case), the Supreme Court has recognised and applied the polluter pays principle in imposing liability on those responsible for environmental damage.

In the context of environmental impact assessment, Courts have also read in these principles as guiding norms that ought to be given utmost consideration. With regard to the current practice in granting of mining leases and quarry permits, courts have relied on the doctrine of public trust and have adamantly expressed that whenever the Government decides to grant quarry permit or renew such permits, it must always take into account the availability of natural resources and the ecological impact and other environmental factors.^[13] Furthermore, while considering the existence of public purpose the issues of environment degradation and damage to ecosystem have to be kept in mind, thus holding the governments and the regulatory authorities concerned duty bound to enforce the precautionary principle and public trust doctrine for protection of the environment.^[14] In the case Gram Panchayat Navlakh Umbre vs. Union of India and Ors, the High Court of Bombay has stressed on the relevance of the principle of sustainable development in granting of environmental clearances. The Court clearly states that "An intention to develop is not sufficient to sanction the destruction of local ecological resources. In applying the principle of sustainable development, there must be a balance between developmental needs which project proponents assert, and environmental damage and degradation, that communities seriously apprehend."^[15] The Supreme Court has also backed this line of thought in the case of Lafarge Umiam Mining Pvt Ltd v Union of India, where the Court reiterates that "It cannot be gainsaid that utilization of the environment and its natural resources has to be in a way that is consistent with principles of sustainable development and intergenerational equity." ^[16]

These cases depict the fundamental nature of such principles and demonstrate that legislative and executive action must be guided by these principles in matters concerning the environment. Furthermore, as a matter of conformity with the obligations under international environmental treaties and agreements, India is duty-bound to reflect these principles in its domestic action.^[17] Therefore, it is upon the Government, as the Trustee of all the natural resources to strike a balance between the development goals as against the environmental conservation.