THE DRAFT ENVIRONMENT IMPACT ASSESSMENT (EIA) NOTIFICATION, 2020: A CRITICAL ANALYSIS

AUTHORED BY:

Savi Phutela [GURU NANAK DEV UNIVERSITY, AMRITSAR]

Sanjana Mishra [NMIMS SCHOOL OF LAW]

Anila Krishna [PENDEKANTI LAW COLLEGE]

EDITOR:

Smaraki Nayak Amity Law School, Noida



INTRODUCTION:

EIA is the Environmental Impact Assessment which is a tool to identify the environmental, social and economic impacts of a project prior to decision-making in India. Over the years, EIA has gone through under several changes. The EIA document is a technical tool that recognizes, predicts and analyzes the effect and impact on the environment which include various impacts such as social, cultural and health impacts.

A Signatory to the Stockholm Declaration (1972) on environment, India enacted laws to control water and air pollution soon after the Bhopal gas leak tragedy that happened in 1984 that the country made an umbrella Act for environmental protection in 1986 under the Environment Protection Act 1986. India notified its first EIA norms in 1994 setting in place a legal framework for regulating activities that access and effect the natural resources like the pollutants. Every development project has been required to go through the EIA process for obtaining prior environmental clearance. The 1994 EIA notification was preplaced with the modified draft in 2006.

The Ministry of Environment, Forest and Climate Change published the Draft ‘EIA Notification, 2020’ dated 23rd March 2020 on 11th April 2020 in the official gazette of India. This notification will be replacing the EIA notification which was issued in 2006. With this notification, the Central Government is looking to establish a transparent and smooth process for environmental clearance. The government believes that there is a need to lay down a procedure to monitor and regulate the violation of projects that are being carried out without environmental clearance at an earlier stage rather than in the future which can be detrimental to the environment.

SUMMARY OF EIA REPORT:

Period of consultation: 40 days.

Monitoring period: Relaxed to once a year.

Environmental clearance:

  • The onus of providing environmental clearance for projects was divided between the central government and state government

  • Division into categories ‘A’ ‘B1’ and ‘B2’ based on the potential social and environmental impacts

Environment clearance process:

CATEGORIES ‘A’ AND ‘B1’:

  • Scoping

  • Preparing Draft of EIA Report

  • Public Consultation

  • Preparation of Final EIA Report

  • Appraisal

CATEGORY ‘B2’: which do not require appraisal would only have to follow last 2 steps.

Provision for appeal against environmental clearance: An appeal can be made to national green tribunal against prior environment clearance.

PUBLIC RESPONSE:[1]

Independent EIA Authority:

  • There is need for Sector wide EIAs.

  • Creation of a centralized baseline data bank.

  • Dissemination of all information related to projects from notification of clearance to local communities and the general public.

Applicability:

  • All projects need to go through the process of environmental clearance, without exception, which are likely to be significant alteration of ecosystems.

  • No industrial developmental activity should be permitted in ecologically sensitive areas.

Public hearing:

  • There should be adequate time for public hearing when it was released. This draft exempted some large industries from public hearing which includes irrigation, dam works, etc.

  • Many projects would only require an Environmental Permission (EP) without detailed assessments or public hearings.

  • The focus of EIA needs to shift from utilization and exploitation of natural resources to conservation of natural resources.

  • It is critical that the preparation of an EIA is completely independent of the project proponent.

Monitoring, compliance and institutional arrangements:

  • The draft sets severe limits on the quality of project appraisal.

  • The EIA notification needs to build within it an automatic withdrawal of clearance if the conditions of clearance are being violated and introduce more stringent punishment for noncompliance.

  • EIA provides for a standard term of reference for all project assessments, increasing the validity of the approval period. It gives exemptions to more sectors from public consultation, allowing lighter monitoring and compliance protocols for projects. These enhance the lowering of the standards of environment regulation of projects.

  • The composition of the NGT needs to be changed to include more judicial persons from the field of environment.

  • Citizen should be able to access the authority for redressal of all violation of the EIA notification as well as issues relating to non-compliance.

Grant of clearance:

  • There is issue with the post-facto clearance. Post-facto approval will waive off the environmental damages which is already caused by the project. Industries which are hazardous may use this loophole.

  • Instead of post-facto clearance, ex-ante regulation should be put in as suggested by the experts.

  • The notification needs to make it clear that the provision for site clearance does not imply any commitment on the part of the impact Assessment agency to grant full environmental clearance.

Capacity building:

§ NGOs, civil society groups and local communities need to build their capacities to use the EIA notification towards better decision making on projects.

CRITICAL ANALYSIS:

The Draft Environmental Assessment Impact (EIA) Notification, 2020 issued by the Ministry of Environment, Forest and Climate Change has attracted arguments and difference of opinion among various environmentalists and several sections of civil society after it was put forward for public consideration and suggestion or objections by the ministry. The 83-pager notification will be replacing the earlier notification which was issued in 2006. The change was proposed during the times of covid-19 pandemic and lockdown situations in March, where it was difficult for people to offer their opinions and suggestions in the given time period of 60 days declared by the government. However, the timeline has been extended to 11th August 2020 for hearing public opinions and exceptions.[2]

Few Positives:

The notification has clearly defined or sought to define all the major aspects and parts of EIA process providing legislative clarity on all the terms enhancing the process. The current framework does not provide for submission of applications via the online mode. However, the draft EIA Notification, 2020 mentions in a lot of places that project proponent may submit the form to the regulatory authority online. This is an advancement and especially in light of the circumstances that we find ourselves today is the need of the hour.

Under Rule 25 of the draft EIA Notification, 2020, a project proponent who is aggrieved by the decision of the regulatory authority with respect to grant of environmental clearance or permission may appeal to the National Green Tribunal within thirty days of the decision of the regulatory authority. This was not provided by the earlier notifications. The rule also makes sure that the regulatory authority comes under judicial purview and check powers of the same.

Plethora of Negatives:

The monitoring period has been relaxed from the previously set once in 6 month in both EIA 1994 and EIA 2006 to only once a year in EIA 2020, although this might have been done with ease the process of monitoring process but with reduced stringency in the matter as serious as environmental law may have various fallbacks.

The draft notification allows the members of the public and the interested stakeholders to submit their comments and suggestions within 60 days of the publication of the notification. However, considering that during the entire time that was given to stakeholders for their suggestions, the country was under a very strict nationwide lockdown, it must have been very difficult for the public to send in their comments as most of the postal services were suspended during these unprecedented circumstances. The circulation of the draft merely a formality as no effective review and representation can be made done by stakeholders in these circumstances of lockdown.

Moreover, Principle 10 of the Rio Declaration clearly states that, “States shall facilitate and encourage public awareness and participation by making information widely available”,[3] but that has not been done in this scenario. The draft notification has only been published by the Central Government’s Ministry of Environment, Forest and Climate Change, has not been publicized and circulated on other platforms or sites of state government making it more difficult for a significant number of stakeholders from submitting their comments on the draft notification.

The ex- post facto clearance route - Rule 22 of the draft EIA Notification, 2020 states that in case of any violation happening where a project didn’t apply for clearance or couldn’t get one while still went ahead with the constructions violating the rule the situation will now be analysed by the Appraisal Committee. And if the response of the Appraisal Committee is positive, then the project may be green lighted by formulation of a remediation plan, assessment of resource damage and resource and community augmentation plan[4] or maybe slapped with minor fines. The status of such construction before this rule was that they were deemed illegal by supreme court. Such leeway defeats the whole purpose of having and Environment Impact Assessment and affects the stringency of the already weak environmental laws of the country.

[1]Public response, Draft EIA Notification 2020, CIVIS (Mar, 2020) https://www.civis.vote/consultations/104/read [2] Diva Rai, Draft EIA Notification 2020 and its impact on the environment and society, IPLEADERS (JULY 07, 2020), https://blog.ipleaders.in/draft-eia-notification-2020-and-its-impact-on-the-environment-and-society/ [3] Rio Declaration on Environment and Development 1992 United Nations Conference on Environment and Development [4] Rule 22 (2), Public response, DRAFT EIA NOTIFICATION, 2020, https://www.civis.vote/consultations/104/read

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