Why India needs to unite against the Environment Impact Assessment Draft, 2020

An Environment Impact Assessment (EIA) is done to predict the effect of a proposed activity/project on the environment. It helps to identify possible environmental effects of the proposed project, and ways to mitigate such effects so as to lay the base for environmentally sound projects^[1]

An EIA is supposed to be done before industrial projects are given a go ahead so as to make sure they do not have any adverse effects on the environment, and it plays a vital role in maintaining the harmony between ‘development’ and mother nature.

What is ironic is that most of the times private expert consultants are hired by construction companies themselves for conducting EIA thereby creating a direct conflict of interest. What makes the EIA an absolute mockery in our country is that there is considerable evidence that these crucial EIA reports are often extremely inaccurate, are deliberately falsified, or both.^[2]

Many a times the reports are nothing more than a copy paste job. This is just a proof of how officials’ failure to detect such blatant falsification is emblematic of the broader absence of meaningful government oversight. The current laws on the Environment Impact Assessment needs to be strengthened in order to ensure a long term growth.

Why do we need to talk about EIA right now and how does it affect us?

As per Section 3 of the Environment (Protection) Act, 1986, the government has the power to take measures to protect and improve the environment. In March 2020, the government came out with a notification in exercise of the powers conferred by sub-section (1), and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986) for imposing certain restrictions and prohibition on the undertaking some projects or expansion or modernisation of such existing projects entailing capacity addition, in any part of India, in supersession of the Environment Impact Assessment.

Essentially, the government issued a notice of a draft for making certain (rather a lot!) changes in the Environment Impact assessment provisions and the Delhi HC recently extended the deadline for public objections or suggestions on the proposal contained in the draft notification till 11th August 2020.

Through this article, I want to bring out certain provisions in the above mentioned draft which are preposterous and why we need to raise our voice on these damaging provisions while we are given a chance. These provisions are:

1. The new draft allows post facto clearance of project that is a project can effectively go on without taking environmental clearance and all it has to do is pay a fine of Rs.1000 to Rs.5000 per day if they plan to report the violation themselves (Ironic how the draft depends upon the violators reporting themselves!)

2. Another provision in the draft says that “All projects concerning national defence and security or involving other strategic considerations, as determined by the Central Government, …Further, no information relating to such projects shall be placed in public domain.” This provision is particularly concerning because strategic considerations hold a wide connotation and nowhere is the term strategic defined. This opens the doors wide open for the government to arbitrarily determine whether a project is strategic and the public can seek absolutely no information about such a project.

3. The category of projects under the list ‘B2’ which is exempted from an elaborate EIA by the appraisal committee now includes a wide variety of projects including inland waterways and expansion of national highway projects. It must be noted that the no EIA would be done for projects in border areas.

Here, it is understandable that India most certainly needs to construct roads near the border areas to safeguard our territorial sovereignty given the increasing Chinese presence on the Border but what is problematic is that the definition of border areas area is defined as “falling within 100 kms aerial distance from the Line of Actual Control with bordering countries of India”.

Here the 100 kms of areal distance(not land) covers practically most of the north east India. This can have an everlasting detrimental effect on the North East India, the repository of country’s richest biodiversity.

4. Another important amendment is that earlier building of 20,000 sq.mtrs or above required an environmental clearance after detailed scrutiny by the appraisal committee but now according to the current draft the limit is increased to 1,50,000 square metres which is a huge increase. To put this in perspective, 28 football fields can be built without any environment clearance.

5. One of the most absurd clauses in the draft includes clamping down on public participation. If the current draft is made enforceable, the public participation would be nearly eliminated and the public would no longer be allowed to report any environmental violations. The only two entities that could now report violation would be the Government authorities or the violator himself can take suo-moto cognizance of the non-compliance.

6. The new draft also cuts down on public consultation from 30 days to 20 days. A project which takes a minimum of 5 years to be built granting just 30 days for public hearing was in itself insufficient and now it has been further reduced to 20 days by the current draft. The only thing that will be achieved by these 10 days would be less public participation.

I would like to bring to the attention that In 2009, the Delhi High Court in Utkarsh Mandal v/s Union of India upheld that it is the duty of the EACs to consider the merits of the objections raised at the public hearings. Not doing that would amount to “non-application of mind to relevant materials and therefore arbitrary.” But these public consultations are mostly seen by the project developers as a roadblock and as an inconvenience and this draft seems to be trying to remove these inconvenience of public participation in such projects.

7. Another thing that I would like to bring to the attention of the readers is that this draft has not been properly notified either. The Karnataka High Court recently cautioned the Environment Ministry that, if it does not widely publicise the controversial draft law for environment clearance in local languages and give people enough time to send their feedback, it will consider staying the proposed law.

In the current scenario where the world is busy tackling a pandemic, such a notification meddling with the environment to such a large extent seems like an aberration. Even after witnessing the Visakhapatnam gas leak at the LG Polymers chemical plant and the Assam gas and oil leak that happened in Oil India Limited's Baghjan Oilfield in the last few months due to non implementation of environmental norms it seems like the memory of the Bhopal Gas leak tragedy has faded away in the minds of the people.

We usually end up ranting on social media when the deed is done but I am sure we’ve all heard “Prevention is better than cure”. It’s time that we unite together for preventing a catastrophe waiting to happen if this draft is enforced.

We live in a democracy and as citizens we have the right to give our feedback on this draft till 11th August 2020. We can send an email to eia2020-moefcc@gov.in OR write to the Secretary, Ministry of Environment, Forest and Climate Change, Indira Paryavaran Bhawan, Jor Bagh Road, Aliganj, New Delhi- 110 003.

I agree with the government’s vision of development but here the bigger question is at what cost? In no way am I trying to convey that the development projects should bear the brunt but rather there needs to be an environmentally sound plan in place. Now, it might take a little more time but it is what will remain for years to come. T

here is a reason why our ‘modern’ highway and bridges collapse after a few years taking away the lives of many, while structures built a hundred years ago remain still intact. I think it’s high time we create harmony between our Environment and Development. The country not only needs such regressive laws to be pulled back but rather an overhaul of the EIA norms.

I would be more than happy to provide whoever is interested with a draft email. You can write to me at harshil_dureja@yahoo.co.in

^[1] https://www.cseindia.org/understanding-eia-383

^[2] https://www.hrw.org/report/2012/06/14/out-control/mining-regulatory-failure-and-human-rights-india#

(The author is a final year law student at Government Law College, Mumbai)