Draft EIA Notification 2020 : Areas Of Concern

The Environment Impact Assessment Notification of 2020 released for public comments on 23^rd March^[1], interestingly right before the day of nationwide lockdown, is one of the several amendments^[2] that the state is making to laws whose central objective is to protect and care for the environment in all its aspects. The Notification is set to replace the existing 2006 EIA, altering 12 out of its 14 clauses. Apart from deviating from the statutory foundation of the Environment (Protection) Act of 1986^[3] and the international commitments^[4] encoded therein, the proposed notification would actively destroy the paradigm of protection and care, irreversibly affecting our natural environment and exponentially increasing the hazards to all life and ecology.

Green Activists Demand Withdrawal Of Proposed EIA Notification 2020; Says 'It Encourages Violations To Continue Undeterred'

Environment Impact Assessment, although a fairly technical exercise, has to submit to the norms of due process. Any project requiring environmental clearance, first needs to undergo a thorough screening and scoping process by the regulatory authorities and, thereafter a draft EIA Report is sent for public consultation. Now, under the existing 2006 law, projects are categorised into Category A and B, where all projects in Category A need to undergo the process of EIA. Category B projects are further classified to B1 and B2 by the regulatory authority, on the basis of their scope and potential impact, and only the projects falling under B2 category are exempted from the cumbersome process. Under Clause 26 of the 2020 notification, however, 40 different types of industries would be automatically exempted from the need for a Prior Environmental Clearance. Meaning, thereby, that for a massive number of projects the entire process of EIA is diluted. The Notification also proposes to reduce the timeframe for conducting public hearing to 20 days, from the current 30 days under the EIA Notification of 2006. In the middle of several lockdowns, where people are being arrested for assembling, this process is bound to become unfair for local groups and communities who need to fully comprehend and respond to the EIA report. It accordingly fails to meet the norms and standards of basic environmental protections, such as the precautionary principle and due diligence.

One other, and rather grave, infringement by the notification would have to be the manner in which it frustrates the principle of participatory governance that centres people as the adjudicator and authority on environment matters. The notification provides a vague interpretation for Public Consultation under Clause 14(c), granting unreasonable discretion to the regulatory authority to undertake public consultations through any means, without even considering the viability of those means. The notification further allows project proponents (the industrialists proposing to undertake a project) to engage private consultants for preparing the EIA reports—propelling a situation where expertise and technicalities would be adopted to obscure the process and make it into an enigma—something that should have been open and comprehensible to the communities for the process to be remotely transparent. In propagation of this prodigious attempt, Clause 17(4) states that only restricted information may be made available to the public for consultation. For existing projects that may be merely looking to expand, the notification denies any need for a public consultation, if the modernization is less than fifty percent of the project capacity, facilitating and streamlining piecemeal expansion processes for all existing projects. The notification expedites incapacitating the procedure that ensures compliance of environmental norms, by restricting the right to report on compliances only to organizations, keeping the community completely out of the environment picture.

The ambiguity in character and language of the notification seems to intentionally and blatantly favour the private parties involved in the process, effectively leading to privatization of natural resources. Under clauses 14(9) and (10), all responses to the EIA are to be forwarded to the project proponent and not even a mention is made of community receiving any of those communications; a legal requirement is made for the project proponent to receive a copy of the public hearing and no such mandate is made for the community, which is actually conducting that hearing. Since the glory of the notification does not just end there, it further exempts all projects that are defined by national security or defence or require any kind of strategic planning (Clause 5(7)). Now, within our political organization, the state may be able to justify projects that are required for national security and defence, but how does one define 'strategic planning' and how does anyone keep planning, strategic or otherwise, out of the ambit of any real project that is being undertaken? Is the notification implying that all projects do not need to be properly planned?

If the exemptions and the dilutions and other frustrations seemed insufficient or an unnecessary cry of an overenthusiastic environmentalist, the notification goes just a tad further and equates actual irretrievable environmental damage with money. Clause 22 of the notification allows the project owners to pay compensation in cases where they pollute the environment and continue their operations as if nothing remains unchanged, as if their act of paying an amount of compensation could, in any possible way, retrieve the environmental damage that they have caused. While being in the nature of an executive instruction, it seeks to dilute the nature, definition and punishments for a range of criminal offences for environmental law violations, which are provided in the parent statute. In addition to being an encroachment on the domain of the legislature, these provisions are a cause for concern because they presage an explosion in violations by monetising environmental crimes, which are currently punishable with imprisonment. Project proponents would continue to violate the environmental laws with impunity, knowing that their being brought to task is a remote possibility, and even if they are, they can easily pay fines and obtain ex-post facto clearances. Capital may be powerful in the realms of our world, one which we have created and reiterated, but capital cannot, in any manner whatsoever, equal a replacement for the environment.

The manner in which this pandemic broke and spread, lays bare the realities of our socio-political structures hinting at the fact that its outbreak may have been a direct result of our capitalist and globalized tendencies. In times like these, when nature requires us to retrace our steps and understand how we reached a situation as dire as this, the Ministry of Environment, Forests and Climate Change has refused to contextualize, or even acknowledge the reality of our prevailing situation. There could've been a scope for demanding amendments to the draft if it had an ounce of legality, but since one cannot make changes in something and make it better if its very foundation is deplorable, the draft must be rejected in its entirety.

Views are personal only.

(Inputs from Khushboo Pareek, Advocate, and Pranav Menon)

(Astha Saxena is a doctoral fellow at NALSAR University of Law, Hyderabad and a research consultant with Legal Resource Centre, Delhi. She is also the author of 'Land Law in India' Routledge, 2019. Her primary work lies in the field of land reforms. She is exploring the relevance of legislative paradigms towards the realization of socio-economic rights)

Objections or suggestions to the Draft EIA 2020 Notification can be sent to: The Secretary, Ministry of Environment, Forest and Climate Change, Indira Paryavaran Bhawan, Jor Bagh Road, Aliganj, New Delhi-110 003 or at eia2020-moefcc@gov.in