Puja Das & Siddharth Sapra
Amity Law School Delhi, Guru Gobind Singh Indraprastha University
In the words of John Paul II – “Earth will not continue to offer its harvest, except with faithful stewardship. We cannot say we love the land and then take steps to destroy it for use by future generations.”
The environment needs protection from all human endangering activities. In the name of development, we always forget to sustain what we have and move towards future development which belongs to none. Recently, in March 2020 a revised notification for EIA was proposed which seems to be more regressive than the 2006 notification. This 2020 EIA notification, if allowed, will have an unprecedented harmful impact on the environment and its ecology.
What is EIA?
Environmental impact assessment is a process of evaluating the risk factors on socio-economic developments and impact on health due to different proposed projects and plants. This assessment identifies the adverse effect on the environment of the proposed project and tries to mitigate these factors at the early stage of project planning, what Benthamism would refer to as ‘minimum harm and maximum benefit.’
EIA, first originated in the US in the early 1970s and then spread across many other countries. Currently, more than 100 countries have an EIA process in place. In India, the first Environment impact assessment notification was issued in 1994 under the Environment Protection Act 1986 and later it was modified and issued in 2006.
EIA gave strong support to the environmental laws and negated the projects from going forward in case of any potential harmful impact on the environment. The process includes several steps and procedures like screening, scoping, data collection, risk factor evaluations, public hearing etc. Environment clearances are required to move further with the project. These environment clearances are to be accorded by the Central level environment impact assessment authority or State level environment impact assessment authority or District level environment impact assessment authority, as the case may be, as per the procedure given under EIA notification.
The notification makes it mandatory for the projects of thermal powers, river valley, highways, mining projects, airports, etc. to get clearance for such activities.
Comparison between EIA 2006 and Draft of EIA 2020:
The draft of EIA 2020 has been very shrewdly drafted only to ease the problems faced by industrialists in running their businesses and the core idea of protection and care of the environment has been pushed aside to a corner. The basic standards of environmental laws are mainly based on precautionary principle i. e. to assess and avoid the harm to the environment as much possible, but EIA 2020 seems to be heedless in this regard.
a.) Exemptions granted to certain categories— Earlier, under the 2006 law, the projects were categorized in Categories A and B, and B was further divided into B1 and B2. This was done on the basis of the scope and impact of the projects. Any project, falling under Category A or B1, which needed environmental clearance had to go through a process of screening, scoping, and thereafter the EIA report had to be submitted for public consultation. Only the projects falling under category B2 were exempted from the process. However, the draft of EIA 2020, under section 26 gives a list of 40 different types of industries that are exempted from the process of Prior-Environmental Clearance or Prior-Environmental Permission. Such a wide window can be easily misused for the benefits of the industrialists.
b.) Validity of clearances and permissions— The draft of 2020 also increased the validity periods of the Prior-Environmental Clearances and Prior-Environmental Permissions. The validity of River valley projects which was 10 years in the 2006 law is now increased to 15 years, validity of mining projects which was project life or a maximum period of 30 years is now extended to 50 years andvalidityof all other projects has been increased from a period of 5 years to a period of 10 years. This is a clear sign of ‘ease of doing business’ strategy supported by the government.
c.) Retrospective effect of legality— Other formidable challenges that the 2020 draft has put include that it tries to knock down the idea that a project must be assessed before it starts. One of the provisions of the draft gives an opportunity to the projects which came up illegally to get themselves legalized. This means that they can be upheld as legal projects in the eyes of law even when the very foundation of the project if illegal. On 1st April, 2020, in the case of Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & others, the Supreme Court ordered and clarified that such type of ex post facto clearance is in derogation of the fundamental principles of environmental laws and hence it should not be granted.
d.) Power of people plucked off— The draft has also snatched away the power from an individual to complain against any violations. According to the new draft, the violations can be complained of only by a government authority or by a suo moto application of the project proponent (the individual or entity that has ultimate control over the affairs of the project).
e.) Unreasonable discretion— The whole body of people as one should be treated as the adjudicator or authority in the matters related to the environment and its protection, which clearly is omitted by the new draft. Under section 14 (c), it is clearly visible that unreasonable discretion has been granted to the Regulatory Authority to undertake public consultation through any means, which can be misused according to their whims and fancies.
f.) Area of Construction of buildings— Another major amendment has been done in the sector of construction of buildings. Earlier buildings of 20,000 sq. m. or more required the clearance by the State Appraisal Committee. As mentioned in the schedule of the new draft, this limit has been increased to 1,50,000 sq. m., only above which the project proponent will be required to get the clearance. This limit is unjustified as such a huge area of land is covered only in some projects and most of the projects will be exempted from the scrutiny only because they are built on lesser area and do not cross the set milestone.
g.) Time period of public hearing curtailed— According to the provision of the new draft, while the process of public consultation is going on, the notice period of 20 days is to be provided to the public for furnishing their responses. This notice period has been reduced in this new draft from 30 days to 20 days. If we consider literacy and awareness amongst the Indian population. such a short period of notice is unreasonable. This time period is too little for many indigenous and illiterate people to get awareness about any project which is going to affect them, understand its effects, and get hold of the law. This provision is also deliberately added in the draft to ease the business activities and let poor or indigenous people suffer.
Roadmap Ahead:
Global warming has now become an inevitable part of our lives yet, we continue to operate in an oblivious mode and pretend to ignore the unprecedented harm that we cause to the environment. EIA 2020 is one such example.
Recently, we came across the news of gas leak in LG Polymers, Vishakhapatnam, where many people lost their lives and were hospitalized because of severe health issues. It was later on reported that the plant did not have all the clearances as required by the EIA. Another such instance occurred this year in Tinsukia, Assam, where natural gas from the oil field blew out and caught fire. Subsequently, the State Pollution Control Board reported that this oil field was operating without prior approval.
If this practice continues, the lives of citizens as well as our overall environmental well-being will be at risk. We are no more in the position to neglect such man-made disasters. The governments should work to make more stringent laws to protect the environment and ecology instead of making laws that are regressive in nature and focus on ease of doing business rather than environmental care and protection. Thus, EIA 2020 needs re-evaluation.
