The systematic evaluation of any project and its repercussions on the environment is a crucial step to assess and mitigate the afflictions caused by execution of such a project. For this, public participation plays an important role to minimise the damage caused to the environment. However, public participation is something that has not been ardently practiced in the past, and to develop a system that creates a closure among the locals, as they are the people most affected by these projects, things need to be considered from different angles. Now, in addition to all persisting problems, the recent draft Environment Impact Assessment Notification, 2020 has posed new impediments.
With the help of public participation, the shared vision for the conservation of the environment is practiced and achieved in many parts of the world. Public participation leads to better foundation and impacts information leading to better design of projects and programs. Public participation enhances the credibility and legitimacy of overall processes of environmental decision-making, thereby increasing “a community’s sense of ownership, commitment or support to a policy or project”.
The United Nations Environment Programme defined Environment Impact Assessment (EIA) as “the process by which the consequences and effects of natural processes and human activities upon the environment are estimated, evaluated or predicted”. The EIA process is a multidimensional procedure that is done to make sure that all considerations regarding the environment form a part of the decisions involving projects or activities which may have a considerable impact on the environment. The main purpose behind conducting an EIA is to inform the decision-makers as well as the public regarding the probable impact on the environment from a proposed project.
EIA in India: Problems and Way Forward
The Indian experience with EIA began over 20 years back. It started in 1976-77 when the Planning Commission asked the Department of Science and Technology to examine the river-valley projects from an environmental angle. In a time of rapid economic growth and industrialization, socio-economic inequalities and environmental degradation can become a secondary concern. In India, legal measures have been developed by the judiciary in an effort to address environmental concerns, including Green Benches in the State high courts, the National Green Tribunal (NGT), and public interest litigation (PIL).
EIA Draft Notification 2020: A Step In The Right Direction?
The draft EIA Notification 2020 (EIA 2020), a replacement of the Notification from 2006, was presented by the Union Ministry of Environment, Forest, and Climate Change on March 23, 2020. It was intended to bring about many changes to the existing policy but has since been criticised for being more favourable to industrial practices than the environment.
For starters, the EIA 2020 introduced four stages into the EIA cycle: screening, scoping, public hearing, and appraisal.
- Category A projects require mandatory environmental clearance and thus they do not have to undergo the screening process.
- Category B projects undergo a screening process and are further classified into B1 (Mandatorily requiring EIA) and B2 (Not requiring EIA).
The process of public consultation has been exempted for the projects falling under Category B2. For projects under Category A or B1, the stages include scoping, preparation of draft EIA, public consultation, preparation of final EIA, appraisal, and finally, grant or rejection of prior environmental clearance. This process is severely circumvented when dealing with Category B2 as for projects under this category, the Environmental Clearance can be obtained in three steps namely, preparation of Environmental Management Plan Report (EMPR), appraisal, and grant or rejection of prior Environmental Clearance. The structure of the EMPR is not as thorough as the structure of the EIA Report which is emblematic of the ease with which the corporations will be able to proceed with the projects falling under Category B2.
This becomes particularly problematic as many of the projects which were hitherto put under Category A or were potentially considered to cause high pollution have been re-categorized and put under Category B2, with no substantiation for the same. Even in cases where the original categorization has been maintained, the threshold limits have been changed, which will lead to certain projects falling out of categories under which EIA and public consultation are mandatory.
The environmental clearance is another negative aspect as the Notification from 2006 required half-yearly compliance reports compared to only a yearly compliance report under the EIA 2020. This will result in decreased monitoring & oversight leading to possibilities where permanent environmental damage may be inflicted through the projects.
Impediments to Public Participation
Several provisions of the EIA 2020 compromise the basic tenets of public participation. The timeframe for public consultation has been reduced from 30 days to 20 days. Bearing in mind that the socio-political context of the vulnerable populace characteristically affected by ‘development’ plans, this reduction could exclude some stakeholders from the consultation.
This step is also against the directions propounded in the case of Centre for Social Justice v. Union of India by the Gujarat High Court in 2000, where a minimum of 30 days for public hearing was designated. The EIA 2020 also excuses projects with “strategic considerations as determined by the Central Government” from the sterner purview of EIA and public hearings. Here, the total authority is provided to the Central Government to categorize projects as strategic, while the consequential elimination of public hearings weakens the nature of India’s international obligation under numerous multilateral environmental agreements (MEA). The time for finishing the public hearing procedure has been reduced from 45 days to 40 days.
This is calamitous because there are already several projects that are functioning without the proper EIA permissions. On the 27th of May, 2020, due to faulty adherence to environmental norms, the natural gas of Oil India Limited in the Tinsukia district in Assam experienced a blowout and caught fire. This caused severe damage to the livelihoods in the region rich in biodiversity. It was discovered that the plant had been in operation for decades without authorizations.
For the purposes of modernization and expansion, the norms require EIA for only those projects which increase more than 25 per cent, whereas an increase of over 50 per cent will mandate public consultation. The validity period of environmental clearance has been increased for mining, river valley, and other plans.
The EIA 2020 ignores reporting by the public of violations and non-compliance. Instead, the authorities will take into consideration reports only from the government authority, violator-promoter, Regulatory Authority, or Appraisal Committee.
Laws Governing Environmental Protection
The pertinent provision involved in this issue is Section 3 of the Environment (Protection) Act, 1986 (EPA). Under Section 3(1) of this Act, the Central Government is authorized to take measures “for the purpose of protecting and improving the quality of the environment, and preventing, controlling and abating environmental pollution”.
In Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, the Supreme Court noted that, “For an action of the Central Government to be treated as a measure referable to Section 3, it must satisfy the statutory requirement of being necessary or expedient ‘for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environment pollution’”. Taking this into consideration, the EIA 2020 is in contravention to the powers entrusted to the Central Government.
Also, Article 51A (g) of the Indian Constitution declares that it is the fundamental duty of every citizen “to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures”. It is crucial that a law on EIA must inculcate such principles.
Non-Compliance to International Regulations
The EIA process was a result of the 1992 Rio Declaration on Environment and Development, which posits that environmental issues are adequately handled through the participation of all concerned citizens and that States must provide a chance to citizens to participate in the decision-making processes. Likewise, in the case of Samarth Trust v.Union of India, the Delhi High Court considered EIAs as a part of “participatory justice giving a voice to the voiceless”.
The dilution of environmental guidelines in the EIA 2020 needs to be estimated in the setting of the robust environmental principles functional at the public and international strata. India is a signatory to the Rio Declaration espoused by the United Nations Conference on Environment and Development (UNCED) in 1992, which articulated a series of environmental principles embracing sustainable development, preventative principle, and environmental impact assessment. A multitude of the MEAs to which India is a party, including the Convention on Biological Diversity (CBD) and United Nations Framework on Climate Change (UNFCCC), bear the mandate of implementation of a prior EIA in positions causing a significant menace to the environment. Following the Rio Declaration of 1992, EIA became a part of the formalised legal regime in India in 1994. The principle of sustainable development and preventative principle grew part of India’s domestic legal edifice through the case of Vellore Citizens Welfare Forum v. Union of India, wherein the Supreme Court declared those principles part of the law of the land.
With the enactment of the National Green Tribunal Act, 2010, the principle of sustainable development, precautionary principle, and ‘polluter pays’ principle became an unequivocal part of India’s legislative edifice. Nonetheless, given the threshold and outlines of both these principles, the EIA emerges as a bold and meaningful supervisory medium for the environmental policy as a tool for informed decision-making towards sustainable development and operation of the cautionary principle. Therefore, any dilution of the EIA and public discussion is a digression from the lawful duty of conduct rooted in the principle of sustainable development. Despite the stress on climate change at the international and domestic forums, the EIA 2020 does not contain a distinct reference to the climate adaptability, impact, or vulnerability from the scale of EIA study.
Global Trend and Examples of EIA and Public Participation
The Oil Sands region of north-eastern Alberta, Canada is one of the largest reserves of oil, in the form of tar-sand. In the Oil Sands region, a large number of EIAs have been completed for approximately 20 Oil Sands projects in the past two decades. The EIA practitioners in the region continue to collect and assess data from the ecosystem to reach the goal of sustainable flora and fauna. The measurement and monitoring of ecosystem indicators selected to meet regional conservation objectives, as specified in the approval conditions from regulators, are designed to ensure the landscape continues to function in such a way so as to protect biodiversity over time.
Italy’s Fiat and Canada’s Alcan in early 1990s joined up to construct a Pilar Dam in the State of Minas Gerais, Brazil, which meant displacing 133 families. However, local farmers and businessmen were anxious about the project as it would severely affect their livelihood, thus, they opposed it. Due to the public participation and vigorous opposition the Government formed a Commission to evaluate the economic impacts of the dam. The Commission reported that the local Government would have to expend far more on necessary infrastructure when compared to the revenues they would receive in the form of royalties and potential industrial development as a result of dam’s construction. As a result of the opposition, Fiat pulled out of the consortium. The effective EIA and public participation allowed local groups to have an impact which led to rejection of the Pilar Dam project.
India has had a mixed history with public participation & EIA. There have been incidents with serious violations, including cases where the affected communities have been physically stopped from partaking in the hearings due to insufficient provision of notice of the meeting and dearth of access to essential information amongst the stakeholders. The Himachal Pradesh High Court has held that for any proper environment impact assessment study to be considered genuine, the studies should be made after apprising the people of the area. There have been a plethora of cases where the courts have stressed on the relevance of EIA and specified the key modalities of public participation for the same.
In Majdoor Kisan Ekta Sanghatan v Union of India, it was held by the Supreme Court that procedurally flawed public hearings were void in the eyes of the law. It has to be noted that for affected or displaced groups, the EIA remains the only viable apparatus to ensure the disclosure of the minutiae of the project, understand the effects, and to ensure that projects adhere to legal safety measures put in place. The significance of public participation has been deemed preeminent by the Supreme Court in the case of Orissa Mining Corporation Ltd. v. Ministry of Environment & Forests wherein it was stated that the Gram Sabha would have to be advised before the Ministry of Environment & Forests sanctioned environmental approvals for developmental projects relating to the rights of individuals and communities in the scheduled areas.
Bearing in mind the two decades of exceptional judicial interventions in the field of EIA to validate and extend the critical process of EIA in consonance with international practises, the EIA 2020 is counterproductive and a step in the opposite direction.
(This essay has been authored by Mehul Raj and Debjyoti Samaddar, II Year B.A. LL.B (Hons.) students at RMLNLU, Lucknow.)