Updated: Jul 31, 2020
New Delhi: On 7 May 2020, a gas leak at a chemical plant in Visakhapatnam that killed 12 and hospitalised 585 people was traced to negligence of the company involved, LG Polymers Pvt. Ltd, which admitted to the State Environment Impact Assessment Authority (SEAA) that it did not have environment clearance. On 27 May 2020, an oil well, owned by Oil India Ltd (OIL) in Upper Assam caught fire, after leaking for about a fortnight in an area with multiple species of mammals, 300 bird species and various species of fish and flora.
These two incidents are all-too-real reminders of environmental and health damage from industrial operations (sometimes negligently, sometimes knowingly) in the absence of strong legal, preventive mechanisms, which the government now intends to dilute further, the latest in a two-decade history of weakening environmental-protection laws.
As a lockdown prompted by the Covid-19 pandemic began on 24 March 2020 environment ministry expert panels, which advise the government on potential environmental damage, cleared 182 projects that will destroy forests, including 49 in just the week ending 5 June, The Straits Times reported.
Over six years since July 2014, the government approved over 270 projects in and around its most protected areas, including biodiversity hotspots and national parks, prioritising business over the environment (read an IndiaSpend five-part investigative series hosted on Article 14 here).
In this climate of aggressive industrialization overriding environmental concerns, a draft Environment Impact Assessment (EIA) Notification was published on 23 March 2020 by the Ministry of Environment, Forests and Climate Change (MoEFCC), inviting comments from the public by 30 June.
There has been a rumble of protest. A number of websites protesting the draft EIA notification of March 2020 were blocked by the National Internet Exchange of India in early July, and the rush to push through the change in law has met judicial opposition.
The Delhi High Court, ruling on a public interest litigation (PIL) filed by environment conservationist Vikrant Tongad, directed the MoEFCC to extend the deadline for submission of comments to 11 August, and the draft notification to be translated in 22 languages to generate meaningful public debate. On 16 July, the Karnataka High Court said if it was “not satisfied that adequate publicity is not given in local languages and time is extended”, it would stay the new notification.
The notification is geared towards easing the process of industrial installation instead of strengthening environmental safeguard procedures. It does so thus:
Projects under schedule B2 (including “small thermal power plants” (5 to 15 megawatt), cement plants, and chemical fertilizer plants) shall not require “scoping” or an EIA report. Scoping is the most crucial stage of the EIA process. It identifies issues that require further investigation, the kind of EIA needed and how long the study will take. (clauses 12 and 13)
The notification extends the list of projects exempt from public participation in the EIA process. The time for public comments is down from 30 to 20 days and for the hearing, from 45 days to 40, reducing discussion and objections (clause 14).
Prior environmental clearance for “modernization” of existing projects will be granted. This means that expanded or modernized factories will not, as before, need a new EIA study. (clause 16)
Projects violating environmental law can seek post facto approval, while the previous 14-year-old notification allows violations to be reported to independent regulators, such as an Expert Appraisal Committee (EAC), which could take the violator to court (clause 22).
This notification, if and when passed, would replace the earlier EIA notification of 14 September 2006, which currently is the relevant law.
These notifications appear to be routine administrative procedures, but real-life examples, such as resistance from locals in hydropower projects in Arunachal Pradesh’s Dibang Valley, indicate how they are used.
Public hearings in the Dibang Valley were announced as then Prime Minister Manmohan Singh laid the foundation stone 400 km away and armed personnel and the threat of the Armed Forces Special Powers Act (AFSPA), 1958, were used to quell local opposition. This reveals how locals, often, find themselves in conflict with both project developers and government bodies in the seemingly routine administrative process of environment clearance.
The MoEFCC passes EIA notifications and related amendments using sections 3(1) and 2(v) of the Environment (Protection) Act, 1986. Section 3(1) empowers the government to take steps--the EIA notification is one--to “protect and improve” the environment. Regulation and prevention of environmental damage by industrial activity has been, thus far, governed in India by subordinate legislations, called notifications, as opposed to a law passed after parliamentary debate and scrutiny.
While the draft notification of 2020 has been criticised, in legal and scientific terms, we will explore the surrounding debate in the context of EIA law in India and beyond.
Global Inspiration For Indian Law
Industrial and infrastructural projects sanctioned by the government have to prove to regulatory bodies created under the EIA notification that they have taken measures to avoid environmental damage.
Over the years, various instruments of international law laid down the importance of EIA and its aspects for India.
The EIA process has five main steps: screening; scoping; public consultation; appraisal; and decision. India’s first EIA notification in 1994 honoured its obligations under the Rio Principles adopted under the 1992 Rio Declaration, which says in Principle 17:
‘Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority’.
The case of Canada’s EIA law is instructive for India.
Canada introduced formal EIA procedures in 1973, 14 years before United Nations Environment Programme (UNEP) guidelines of 1987, recognizing the urgency of streamlining developmental projects based on their environmental impacts.
After 20 years of enactment, the Canadian government replaced its EIA process with a new federal environmental assessment law called the Canadian Environmental Assessment Act, 2012. Critics said this law diluted existing provisions by reducing the scope of assessment for various proposed activities and undermining balanced industrial development.
The 2012 law also constricted public participation and slashed several forms of environmental assessment sanctioned by the previous law. Under the new law, federal officials were allowed unprecedented discretion to skip federal environmental assessments for provincial.
However, the New Federal Impact Assessment Act, 2019, introduced by Prime Minister Justin Trudeau's government, tried to resurrect legal provisions to address growing public concerns over loosening of environmental regulations. The new law also proved controversial, with experts arguing that while it improved public participation of indigenous tribes and expanded factors to be considered in an assessment, it arguably lessened federal oversight of impact assessment.
The concept of EIAs was first evident in 1968 in the US National Environmental Policy Act. Two decades later, we find a reference to a mandatory EIA process in the European Union Council Directive, 1985.
The European directive specified what an EIA must contain (article 3): studies of the impact on humans, flora and fauna, soil, air, climate, landscape, material assets, cultural heritage and the interaction of these factors.
It required the developer to provide a description of the project, comprising site information, design and size, measures to avoid or reduce damage and a non-technical summary for the public at large.
The Slow Dilution Of EIAs In India
In 1987, the UNEP provided model guidelines for conducting Environment Assessments (principle 4), which were broadly adopted across the world. In 1994, the first EIA Notification was released in India, and it specified a uniform way of getting clearances for projects.
As time progressed, the EIA notification was amended:
In April 1997, a public hearing was introduced in the process of obtaining environment clearance, and an Environmental Public Hearing Committee was set up.
In December 2000, all defence-related road projects were excluded from an EIA.
In August 2001, mining projects with lease area up to 25 hectares were excluded from public hearings.
In July 2005, an amendment relaxed the EIA process for mining projects under 5 hectares, and the government could grant two-year work clearances without environmental clearance.
These were some amendments that met major opposition, and a draft introduced in 2005 became a new notification in 2006. Here are some significant amendments over the years to the 2006 notification:
October 2009: A proper procedure for a public hearing was introduced.
March 2013: No fresh environment clearance needed for previous mining projects when renewing mining leases, which sounds like it makes sense, but is a way to save money and disregard the environment.
August 2013: Scoping removed for various categories. Scoping, as we have said, is an important part of the clearance process, identifying as it does key environmental concerns that might arise from a project and impact to its site. To skip such a step makes no sense, but the amendment was passed nevertheless.
April 2015: Scoping removed for certain highway projects. Another amendment in the same month increased the validity for clearances by two years, from five to seven.
These amendments and the notifications present a preference for development over sustainable development, which is not in line with India’s international commitments.
How The 2006 Notification Was Weakened
The Govindarajan Committee Report on Investment Reforms (November 2002), which studied India’s investment prospects, noted stringent environmental regulations as a factor discouraging potential investors. This influenced the EIA notification of 14 September 2006.
However, the notification became better known for introducing decentralisation under the Indian EIA framework. It classified developmental projects into category A, which went to the Expert Appraisal Committee (EAC) for approval; Category B, which would go to the State Level Environment Impact Assessment Authority (SEIAA) and State Level Expert Appraisal Committee (SEAC).
Category B projects were further divided into B1 (mandatorily requiring EIA and public consultation) B2 (projects that do not require EIA and public consultation). The State Pollution Control Boards were to organise public hearings.
The 2006 notification revealed the government’s inclination to further commercial objectives by subverting already enfeebled environmental regulations. The United Progressive Alliance (UPA) administration, which governed India between 2004 and 2014, faced criticism for not implementing an effective and participatory consultative process while formulating the draft and lack of transparency when it solicited suggestions.
The 2006 notification was rife with unrectified flaws, and, in many cases, further withered the purpose of the EIA.
The framework deliberately excluded certain projects with negative environmental impacts, such as minor minerals (included later by a Supreme Court order in 2012) and river sand-mining, from seeking clearance. It was ignored that even under small scales of operation, these industries could cause significant damage. The lack of an independent agency, coupled with significant funding of the EIA study by project proponents, cast doubts on the impartiality of EIAs.
The discovery of fraudulent reports, prepared by project proponents with the help of consultants, was common. In 2008, the Ratnagiri case of an EIA report being plagiarised from a Russian bauxite mine got some publicity. Earlier in 2000 (under the 1994 notification), Ernst & Young, a reputed consultancy, and the research organization Tata Energy and Resources Institute(TERI) were involved in plagiarism and shoddy research in the EIA for the Dandeli dam in Karnataka, as the Environment Support Group, an advocacy organization, revealed.
The 2006 notification also failed to provide for extensive public consultation procedures, with hearings limited to the end of the environment clearance process. Even limited participation of stakeholders in hearings was marred by unconducive ambience and procedural irregularities.
The 2006 notification contains a post-clearance monitoring scenario requiring a compliance report by project proponents every six months. This does not, however, address the issue of consequences for vulnerable communities that depend upon natural resources for subsistence.
Even after the promulgation of the 2006 notification, central governments repeatedly sought to dilute existing regulations to improve India’s rank on the global Ease of Doing Business Index.
“Today, every project, irrespective of its impact, can be granted clearance,” said this 2007 assessment. The draft 2020 notification reflects the culmination of these efforts, spanning two decades, to dilute the law, which is often kept alive by the higher judiciary.
Indian Courts Have Backed The Laws
India’s higher judiciary has, in many instances, upheld the democratic aspects of a strong EIA process.
In the case of Centre for Social Justice vs State of Gujarat, 2001, the petitioners, an activist organization in Gujarat, alleged before the Gujarat High Court that the public hearing in an EIA for a thermal power project was not effective.
Their main grounds: the public hearing was not near those likely to be affected by the project, and many could not afford to travel so far; the public hearing was not advertised in widely read Gujarati newspapers, so many did not know of it and could not attend; and the right of appeal could not be exercised because those affected did not know that the government had granted environment clearance.
The State of Gujarat argued that this petition was asking the court to go beyond the limits of judicial review and act in a legislative capacity (that was beyond its jurisdiction), the EIA notification of 1994 and amendments.
The Court rejected the State’s argument and likened environmental concerns to human-rights issues and could be read into the right to life under Article 21 of the constitution. The court laid down various guidelines describing an effective public hearing.
In the case of Utkarsh Mandal vs Union of India, 2009, the validity of a public hearing was disputed because the executive summary of a mining project in Goa was provided only nine days before a public hearing, the chairperson of the expert appraisal committee (mines) was a director in four mining companies, and the clearance order did not provide clear reasons or account for objections raised at the public hearing.
Its validity was challenged according to principles of procedural fairness in administrative law.
The Delhi High Court accepted these arguments and said a public hearing under the EIA notification of 2006 would be reduced to a farce, if the court upheld the order of the National Environment Appellate Authority, which said the environment clearance was valid.
The EIA law and policy form the most important safeguard in environmental jurisprudence against environmental damage by industries. The environment is not a resource package.
The EIA law in India, however, has steadily moved towards turning the environment into a resource package for the ease of access by industry. The proposed 2020 notification is only the latest stop in a long journey.
(Atreyee Majumder teaches sociology/anthropology at the O P Jindal Global University. Sourabh Balwani studies law at the National Law University, Nagpur. Siddhant Parikh studies law at O P Jindal Global University. The authors are with the Delhi-based citizens’ group, Volunteer’s Collective.)