This century has witnessed a tremendous and mostly negative impact on the environment and as a result, various steps are being taken to answer these issues. In pursuance of this, The Ministry of Environment, Forest and Climate Change published the Draft Environment Impact Assessment (hereinafter, EIA) Notification 2020, with the intention of replacing the existing EIA Notification, 2006.
So, what is Environment Impact Assessment? As defined by UNEP, EIA is a tool used to identify the environmental, social and economic impacts of a project prior to decision-making. It aims to predict environmental impacts at an early stage in project planning and design, find ways and means to reduce adverse impacts, shape projects to suit the local environment and present the predictions and options to decision-makers. The definition suggests that an EIA has a broad underlying idea encompassing environmental, social and economic factors. In India, the EIAs are statutorily backed by the Environment (Protection) Act, 1986.
KEY HIGHLIGHTS OF THE DRAFT EIA, 2020:
As the notification mentions, the draft has been introduced to make the entire process transparent and expedient. The draft divides various projects under different categories and provides for the requirement of prior environment clearance or prior environment permission from the concerned authority (as depicted by Table A).
Some of the key highlights of the Draft EIA Notification, 2020 are –
The draft sets up a number of a committee consisting of experts from various fields. These committees are – 1) Expert Appraisal Committee; 2) State Level Environment Impact Assessment Authority or Union Territory Level Environment Impact Assessment Authority; 3) State or Union Territory or District Level Expert Appraisal Committee; 4) Technical Expert Committee. These are formed under the notification to carry on the purposes of EIA.
(TABLE A: Categorisation of Projects)
It also provides for various stages in the prior Environment Clearance or Environment Permission for different categories of projects. Various stages are depicted below-
(TABLE B: Stages of Clearance/Permission)
Scoping: As per sub-clause 49 of clause 3, scoping means the process of determining the Terms of Reference by the Regulatory Authority for the preparation of EIA Report, for the project, seeking prior-EC. The draft makes it mandatory for all the category A & category B1 projects to undertake scoping. However, the same is not required for category B2 projects.
Public consultation: The draft notification provides for public consultation and specifies that all Category ‘A’ and Category “B1” projects of new or expansion proposals or modernization with capacity increase more than 50 percent shall undertake Public Consultation. In addition to this, clause 14 also lists a number of projects exempting them from the requirement of public consultation.
In addition to the above-mentioned features, the draft also lays down detailed procedure for preparation of EIA report, appraisal, grant or rejection of EC or EP, any amendment in prior EC/EP etc.
Clause 20 of the notification talks about monitoring of post-project prior EC/EP. The provision makes it mandatory for the project proponent to submit one compliance report in a year with respect to the conditions stipulated in the prior EC/EP.
In addition to these, one of the peculiar features of the draft is that it introduces online mode at almost every stage. For instance, there is a requirement to apply via the online portal and the draft also specifies that any offline application will not be accepted. This caters to the need of the industries while making the entire process expedient.
CATEGORISATION OF INDUSTRIES:
The schedule to the draft categorizes as many as 43 projects under three different heads i.e. A, B1 & B2. The categorization is broadly done on the basis of a threshold limit provided in the schedule. The list of projects covers a wide range of industries including metallurgical industries, steel plants, sponge iron plants, nuclear power plants, cement plants, lead acid manufacturing companies, petroleum refining industry, asbestos milling industry, thermal power plants, irrigation, synthetic rubbers etc. It is also pertinent to note that the draft excludes all inland waterway and national highway projects which often act as a major source of pollution.
Now, it is notable that industries undertaking these projects at a small scale have generally been placed under Category B2, and hence, can escape the EIA process. For instance, the schedule also covers industries undertaking petroleum products and petrochemical based processing including the production of carbon black and electrode grade graphite. Also, as per the draft, all such industries located outside the notified industrial estates fall under Category A while those in the notified industrial estate fall under Category B1. On the other hand, if these activities are carried out by a medium enterprise at any place, it falls under the category B2. It is problematic as petrochemical based processing as well as production of carbon black and electrode grade graphite, even on a small scale, can cause irreversible damage to the environment. Hence, relieving such medium enterprises from any check whatsoever (by placing them under category B2) goes against the precautionary principle of environmental law jurisprudence. At this juncture, keeping the above-mentioned issue in mind, it can be said that there needs to be some screening mechanism over the industries dealing with B2 category projects.
(UN)BALANCING THE ENVIRONMENTAL CONCERNS:
Environment Impact Assessment in general has an underlying idea of striking a balance between environment concerns and industrial development. The present draft EIA deviates significantly from its predecessor i.e. EIA 2006 in terms of environment protection.
Some of the welcome provisions in the draft are –
Diversity in the composition of various committees: the draft chalks out the composition of various committees in detail. The members of these committees are required to be experts in different fields such as agriculture, horticulture, economics, technology, law etc. This can help these committees to ensure that the EIAs are prepared or granted/rejected keeping varied aspects in mind. Moreover, the draft also sets up a technical experts committee which shall undertake categorization or re-categorization of projects on scientific principles. Enhancing such diversity can help in achieving the objectives of this draft in a better manner.
Introduction of technology: one of the glaring differences between the notification of 2006 and the current draft is the use of technology. The current draft introduces online system with an objective to make the entire process more transparent and expedient. This will practically influence the manner in which EIAs are applied or granted. For instance, clause 11 specifies that a project proponent shall apply for prior EC/EP only through the online portal. This can possibly help to speed up the process of application. Similarly, the standard Terms of Reference for scoping shall also be issued via online mode. An overall perusal of the draft shows that a mandatory use of online portal has been introduced at almost all the stages. This can help to speed up the entire process significantly.
Shortly after the introduction of this draft notification, it has become a center of debate as it suffers from a number of shortcomings. These shortcomings are discussed below-
Post-facto clearance: this is one of the most problematic aspects of the draft. Clause 22 essentially provides that the units which are operating in violation of the notification can apply for environment clearances afterwards too. The Hon’ble Supreme Court of India has stressed upon the need of adopting precautionary principle in matters related to environment[1]. The above-mentioned provision clearly goes against the spirit of precautionary principle, intergenerational equity and sustainable development as the damage done to environment in such matters would be irreversible and irreparable. In essence, the provision enables industries to take advantage of violations. This indicates towards the pro-industries approach taken in the 2020 notification.
Exemption of category B2 projects from the entire EIA process: this is another problematic aspect of the draft. As a result of the said exemption, a number of projects escape any check upon their functioning. This posits the problem of decreased stringency of environment protection measures upon a number of projects which have the potential to cause irreversible and irreparable harm to the environment.
Exclusion of projects from scoping: Under clause 12, it has been specifically provided that the projects falling under category B2 will not be required to undertake scoping. This provision essentially allows a number of projects to function without any check upon them. For instance, in the schedule to the draft, item 2 puts all projects related to exploration of offshore and onshore oil and gas (including CBM and shale gas) under category B2. It is notable that exploration involves processes such as drilling which can affect environment significantly. Exempting such activities from the purview of scoping as well as public consultation can prove to be disastrous for the environment at large.
Shrinks the space for public involvement: Clause 14 of the draft exempts a number of projects from the purview of public consultation. These exempted projects include modernization of irrigation projects, all B2 category projects, secondary metallurgical industries, soda-ash industry (located within notified industrial areas) etc. The nature of these exempted projects is such that it can affect the public at large. Moreover, the said exemption has been made without any rationale behind it. This posits the problem of reduced public engagement in those matters which have the potential to affect the public eventually.
Removal of screening process for category B2 projects: Under the 2006 notification, the projects listed under category B2 (as in the draft notification 2020) are required to undergo screening, after which it is decided whether there is a need to undertake scoping or not. On the contrary, the EIA draft 2020 completely removes the stage of screening and absolutely excludes the entire category from the purview of scoping. This is a regressive diversion from the 2006 notification as the new draft allows the B2 category projects to operate without any check whatsoever.
Dilution of the monitoring mechanism: Under its monitoring mechanism, the EIA notification of 2006 makes it mandatory to submit compliance report twice in a year. However, the draft of 2020 decreases this to one report in a year. This essentially dilutes the stringency of monitoring of these projects. In addition to this, sub-clause 1 of clause 22 of the draft provides that cognizance of violation shall be taken into account if it is reported by the project proponent, any government authority, appraisal committee or the regulatory authority. This provision excludes the general public from its ambit. As a result, if any project violates the notification and escapes from the eyes of these above-mentioned authorities, there will essentially be no check upon its functioning afterwards. This provides room for increased violation of the notification as well.
Does not take climate change considerations into account: the draft does not give a careful thought to the concerns related to climate change. The said concerns have been ignored in the 2006 notification as well, but the 2020 draft tends to exacerbate the issue. For instance, it is well-known that industries act as a leading source of carbon emissions. However, none of the forms in the draft take issues related to carbon emission into account. As a signatory to the Paris agreement, India has committed to reduce its greenhouse gas emission rate. The absence of climate change concerns in the draft clearly indicates ignorance towards the above-mentioned international commitment.
Concerns related to ‘strategic’ projects: sub-clause 2 of clause 14 of the draft lists a number of projects which are exempted from public consultation. In the said list, strategic projects (as declared by the central government) are also included. A bare reading of the provision suggests that the central government has the power to declare a project as ‘strategic’ and thus, it can escape public consultation under the draft. This clearly amounts to excessive delegation as an unguided discretion has been granted to the central government to declare any project as strategic. Such a delegation has been held to be invalid by the Supreme Court[2]. Furthermore, this also enables the government to declare any project as strategic without giving any explanation or reason.
Increase in discretionary powers of the bureaucracy: the draft proposes to increase the discretionary powers of the government, while limits public engagement at the same time. As a result of this, there are increased chances of opaqueness during the process. Further, the draft does not require the regulatory authority to give reasons for approval or rejection of any prior EC/EP. This is problematic in itself as it provides increased and unguided discretion to the regulatory body.
The above discussion clearly shows that the shortcomings of the draft clearly outweigh its positive features. It is a retrograde diversion from the 2006 notification. The provisions create room for environmental exploitation and reduce public involvement from environment related decision-making. The draft does not balance the environmental concerns, rather unbalances it. It heavily skews in the favor of industries and tends to ignore the environment at large.
[1] M C Mehta v. Union of India, AIR 1997 SC 734. [2] In Re, Delhi Laws Act, AIR 1951 SC 332. (This article is co-authored by: 1. Nimisha Srivastava, 5th year student of NLU, Orrisa, and 2. Ansh Kesarwani, 2nd Year student of Amity University, Chattisgarh, during their internship with S&D Legal Associates)
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