Why the recent trend of doing away with public hearings in the Environment Clearance Process is a bigger problem than COVID-19

Barely a few days into the COVID-19 lockdown, people all over the country started sensing how the skies were bluer than before, the air purer, and the Ganges cleaner. The silver lining amidst the misery brought about by the decrease in economic activity and growth.

But is it really? Considering that the lockdown is temporary, the causation therefore is momentary and short term. Short term, I say, because environmental protection and sustainable development have never been on our priority list.

The COVID-19 pandemic has not only made us realize the importance of a sound public health system, the recuperating ecosystems have also made us realize the importance of the environment. We Indians have a history of reassessing what is meaningful and important to us and our nation only after the bad things happen. That is the most plausible justification I can attribute to the way we’ve been neglecting environmental conservation and letting the ruling dispensation normalize with apparent ease the dilutions, one after the other, in the environmental clearance process.

The conservationists and the intellectuals who follow environmental updates know of the dilutions, but sadly beyond those circles, others have failed to notice as to how since 2014, the most important part of the environment clearance process, the “public hearings” are given a go-by or reduced to a mere farce.

But of late, since all of us have been attempting to be sensitive towards our surroundings thanks to COVID-19, let us take this opportunity to understand the importance of “public hearing” in the Environment Clearance Process and have an informed opinion to prevent its dilution any further.

Environmental Impact Assessment

The United Nations Environment Programme (UNEP) defines Environmental Impact Assessment (EIA) as a tool used to identify the environmental, social and economic impacts of a project prior to decision-making.

The fundamental stages of EIA in India include screening, scoping, public consultation and appraisal. Public consultation includes within its scope the component of public hearing.

Judiciary’s response towards strengthening Public Hearings in Environmental Clearance process

Since 2014, the collusion between the industry and the regulator is so evident and the dilution at the behest of corporate interests so grave that it almost seems as if we’ve transitioned from a socialist economy to a capitalist economy where the corporate giants are the new “state” and where environment protection and public participation is seen as a threat to development.

Thus, prior to the year 2014, the public hearings were sought to be defeated by way of procedural lapses and irregularities and after 2014, they are sought to be defeated and eliminated by way of legislative/executive tools.

The “decentralized democratic space”, as our Supreme Court fondly addresses public hearings as, has been a subject matter of challenge on innumerable occasions on grounds of illegalities and irregularities in the method and manner of how they are conducted by the project proponent. The intervention of judicial and quasi judicial forums and the subsequent invalidation of grant of clearance on grounds of substantial irregularity in the public hearings can broadly be categorized into three grounds: procedural impropriety, adequate and authentic information, and place of hearing.

Procedural Impropriety

One of the foremost judicial interventions qua the issue of public hearing was by the High Court of Gujarat in Centre for Social Justice v. UOI. The High Court, while dealing with a case of procedural impropriety in the conduct of public hearing by the project proponent, filled up the lacunae left by the executive and laid down detailed guidelines with regard to each aspect of conducting of public hearing from issuance of notice to publication of final report which are to be mandatorily followed.

In another matter of Utkarsh Mandal v. Union of India;, the Delhi High Court held that the notice intimating about public hearing should be circulated at least thirty days prior in point of time and should be repeatedly circulated after a period of ten days so as to ensure maximum participation. These directions were subsequently translated into a Office Memorandum issued by the Ministry of Environment and Forests (MoEF).

Adequate and Authentic Information

In the litigation concerning construction of the Nirma Cement Plant at Mahuva in State of Gujarat, the public hearing was nothing less than an eye wash. In the EIA report, the project proponent did not disclose that the factory was to be set up on a water body. Moreover the advertisement for public hearing was given in two newspapers i.e., Indian Express and Jai Hind, which had completely insignificant circulation in that region so as to frustrate peoples’ participation. The objections raised during the public hearing were not incorporated in the minutes of the meeting and the written objections too were ignored. All of this because in the Vibrant Gujarat Summit, initiated by the then Chief Minister Narendra Modi, the government of Gujarat had, through an MoU, given commitment to provide the land for the project without taking into consideration the law.

Place of Hearing

In 2010, to frustrate people’s participation, public hearings of two different projects i.e., Adani’s Mundra SEZ and KPGL Power Plant, for environmental clearance were fixed on the same date at the same venue. There cannot be any time period fixed for completion of public hearing as everyone’s grievances ought to be heard and redressed. Hence neither can the time limit for the first public hearing be curtailed nor can the participants for the second hearing be made to wait all day. Either way, it would result in frustrating people’s participation. A petition was preferred by the affected villagers and after the intervention of the High Court of Gujarat, the public hearings were directed to be conducted on separate dates.

Another exemplar, is of an ongoing litigation wherein for expansion of M/s Nayara Energy Ltd.’s [erstwhile Essar Oil Ltd.] refinery capacity, the MoEF, while issuing Terms of Reference for expansion of the said petrochemical refinery, as a part of public consultation under EIA Notification, 2006 has only provided for public objections in writing without holding any public hearing which is on the face of it without jurisdiction, power and authority and is again illegal and invalid. However during the pendency of the petition before the High Court of Gujarat, the proponent has decided to conduct the public hearing which was subsequently kept in abeyance because of the COVID-19 lockdown and is yet to take place. However, this tendency of doing away with public hearing for expansion purposes has been gaining trend amongst project proponents’ post 2014 and the same is being actively accommodated by the regulatory body.

The trajectory of these instances show how the public hearings till 2014 suffered from irregularities which led to frustrating the objective of public hearing and people’s participation, to which the judiciary had to rise to the occasion every now and then.

However, pursuant to the year 2014, with the frenzy of state-led dilutions, the public hearing in itself is sought to be eliminated, thereby leaving no scope for any sort of intervention even for a constitutional court to come to rescue.

State agenda and the dilutions

Since 2014, the state agenda has shifted from welfare of the state, to being industry friendly. The project proponents are now extended more and more backing from the state authorities to render the stage of public hearing nugatory so as to “ease the doing of business”.

Over the years, several attempts have been made to do away with the need of public hearing. This has been especially true for projects concerning coal mining expansions. From 2012 to 2014, multiple notifications were issued to exempt coal mining expansion projects to a certain capacity, from the requirement of public hearing.

In the year 2017, with a view to further the ruling dispensation’s goal to increase coal production to 908 million tonnes by 2019-20, the expert body i.e., the Expert Appraisal Committee, held that for expansion of coal mining projects up to forty percent capacity will not require public hearing. This relief was extended on a proposal made by Coal India Limited.

Subsequently, in the same year, the MoEF issued a notification giving an opportunity to all projects which were running without environmental clearances to apply for EC. Basically it was a one-time scheme to turn illegal units into legal units like the state does with unauthorized constructions and tax evasions. However, this was worse because the units were permitted to be converted into legal units through a simplified clearance process which exempted public hearings.

The subsequent doom for community participation came with the introduction of the January 16, 2020 amendment of the EIA Notification, 2006. By way of amendment, the MoEF exempted hydrocarbon exploration activities from the requirement of EIA and public hearing. The amendment was brought about in response to the proposal by MNC giant Vedanta for a project to explore hydrocarbons in the Cauvery delta.

The public opposition to the project was so strong that had it been mandated for it to pass through the rigours of EIA and public hearing, the project probably would not have seen light of the day. Hence, our “industrial and investor friendly dispensation”, with a view to “ease the business”, brought into effect an amendment and straight away exempted the project/s from the requirement of EIA.

Moreover, if one studies the EIA reports which are prepared by the project proponents and start getting familiar with the concept and content of it, one cannot fail to notice that these reports are not even close to being called credible. Most of the times, they contain copy pasted content from other reports and the rest is just generic data with not much concern regarding the impact of the project at hand.

I may be sounding cynical, but in India, everything comes at a price and hence the regulatory bodies of the likes of State Environment Impact Assessment Authority (SEIAA) and Expert Appraisal Committee (EAC) of the MoEF are mostly manageable by the project proponents.

Draft EIA notification [March 2020]: The final nail in the coffin

After normalizing the exemption of public hearing over a period of time, the subsequent and the biggest blow to public consultation was seen in March 2020, when the MoEF released a new draft of the Environment Impact Assessment notification to replace the EIA Notification of 2006. The new draft notification seeks to incorporate and consolidate the several notifications and amendments issued from 2006 till date. However, environmental activists say that it is a lot more than that, and rather, the new draft EIA notification is a consolidation of environmental violations.

Clause 14(2) of the draft notification, which is still at the stage of public comments, exempts public consultation for projects including modernisation of irrigation projects, all building, construction and area development projects, inland waterways, expansion or widening of national highways, and all projects concerning national defence and security or involving “other strategic considerations” as determined by the Central government, among others. The notification further holds that

“All projects concerning national defence and security or involving other strategic considerations, as determined by the central government, shall require prior-environment clearance, from the ministry without any change in the category of the project” but “no information relating to such projects shall be placed in the public domain.”

The provision is dampening, arbitrary and suffers from excessive delegation, to say the least. In the name of “strategic importance”, the executive can now exempt any project from public consultation thereby frustrating the whole objective of EIA.

In December 2016, MoEF had brought into effect an amendment in the 2006 notification whereby, the building and construction projects covering 20,000 to 01,50,000 sq. Meters of built up area were permitted to proceed without environment clearance. Thus essentially, big realty was sought to be exempted from the need for environment clearance and public consultation. However, upon challenge before the National Green Tribunal, the amendment notification was set aside, the same being in violation of the provisions and spirit of the Environment Protection Act and the EIA Notification, 2006. Now, to invalidate the effect of the NGT’s judgment and to carry forward its agenda of “ease of doing business”, the new draft notification is sought to be introduced.

Moreover, the new draft notification also cuts down the time for the public hearing. The 2006 notification provided for a period of 30 days' notice period for the public to respond and required the public hearing to be wrapped up in 45 days. The new draft notification specifies a minimum period of only 20 days for notice period, and reduces the time for completion of public hearing to 40 days.

We have seen how the judicial forums have laid much stress on the 30-day notice time period for public hearings. Yet, ignoring the judicial wisdom and speeding up the process for the setting up of industries, the Executive has arbitrarily sought to dilute the provision.

Wake-up Call

One doesn’t need to go into the technicalities of environmental jurisprudence and scientific know-how to understand that the tweaking of the law is nothing but an attempt to facilitate corporate, mining companies, builders and the MNC giants to flourish. Most regulatory bodies in our country have always been manageable. What stood out in the process of EIA and what held its sanctity was the requirement for conducting a public hearing. And if that is eliminated, then nothing remains.

The environmental violations also reflect a lot on us, the middle class and the upper middle class residing in urban areas, because it is essentially the urban population that utilizes the maximum amount of resources while neglecting the environment, and the wrath of this is being faced by the rural people. The industries are mainly set up in and around rural areas. It is the rural local populace which gets affected because of coming into being of these industries, whereas the consumption is mainly by the people of the urban areas. If we don’t stand up when their collective rights are violated by the State by doing away with public hearings, we are just as culpable as the Executive.

Even amidst this deadly crisis and the pandemic, while we all were confined within the comforts of our home, the Union government was busy diluting the provisions, granting clearances, and accelerating its agenda of development.

The saddest and gravest of the trajectories is the Central Vista Project. The government has camouflaged the project as a routine building and construction project under Section 8(a) of the EIA Notification, 2006. Being a project classified under Category B2, it won’t have to undergo public consultation and there would be no Environment Impact Assessment. Camouflage, I say, because clearance is sought only for a small part of the project, being the new Parliament building while leaving apart the development/redevelopment of Parliament Building, Central Secretariat and Central Vista.

The project has been given the nod even as the Apex Court is seized of the challenge qua the project. At the same time, the Court has recently refused to stay the project, saying that during COVID-19, nobody is going to do anything and hence there is no urgency.

COVID-19 will soon be gone, with measures being taken against its spread, and with the anticipated invention of a vaccine. But this hammer blow to the environment and the ecosystem by conveniently eliminating the requirement of public hearings and the damage that it is going to exert, is a virus that is going to haunt us for longer than we can ever imagine.

The author is an advocate practicing in the High Court of Gujarat.