Explained: Reading the draft Environment Impact Assessment norms, and finding the red flags

But Environment Minister Prakash Javadekar set the new deadline on June 30, limiting the extension to only 20 days. This did not go down well with activists who have been pushing for the draft’s withdrawal altogether. Activists moved court, leading to the extension on Tuesday.

Activists claim that far from an improvement, the 2020 draft is a regressive departure from the 2006 version it seeks to replace.

Background

A signatory to the Stockholm Declaration (1972) on Environment, India enacted laws to control water (1974) and air (1981) pollution soon after. But it was only after the Bhopal gas leak disaster in 1984 that the country legislated an umbrella Act for environmental protection in 1986.

Under the Environment (Protection) Act, 1986, India notified its first EIA norms in 1994, setting in place a legal framework for regulating activities that access, utilise, and affect (pollute) natural resources. Every development project has been required to go through the EIA process for obtaining prior environmental clearance ever since.

The 1994 EIA notification was replaced with a modified draft in 2006. Earlier this year, the government redrafted it again to incorporate the amendments and relevant court orders issued since 2006, and to make the EIA “process more transparent and expedient.”

The contention

Though established to safeguard the environment, the EIA process, argue activists, often achieved the opposite by offering a façade of legal paperwork for a range of de facto concessions enjoyed by industries.

For example, reports on projects’ potential (damaging) impact on the environment — the bedrock of the EIA process — are frequently shoddy and consultant agencies that prepare those reports for a fee are rarely held accountable. Lack of administrative capacity to ensure compliance often renders long lists of clearance conditions meaningless. Then there are periodic amendments exempting one category of industries or the other from scrutiny.

On the other hand, developers complain that the EIA regime dampened the spirit of liberalisation, leading to red tape and rent-seeking. Delay in project clearance during the UPA-II rule became an election issue in 2014 when then prime ministerial candidate Narendra Modi hit out at the Congress by claiming that files did not move in the Environment Ministry till “Jayanthi tax” was paid.

Red flags

The 2020 draft offers no remedy for the political and bureaucratic stronghold on the EIA process, and thereby on industries. Instead, it proposes to bolster the government’s discretionary power while limiting public engagement in safeguarding the environment.

While projects concerning national defence and security are naturally considered strategic, the government gets to decide on the “strategic” tag for other projects. The 2020 draft says no information on “such projects shall be placed in the public domain”. This opens a window for summary clearance for any project deemed strategic without having to explain why.

Additionally, the new draft exempts a long list of projects from public consultation. For example, linear projects such as roads and pipelines in border areas will not require any public hearing. The ‘border area’ is defined as “area falling within 100 kilometres aerial distance from the Line of Actual Control with bordering countries of India.” That would cover much of the Northeast, the repository of the country’s richest biodiversity.

Opinion | Draft EIA Notification is an attempt to weaken regulation, silence affected communities

What’s exempt

All inland waterways projects and expansion/widening of national highways — two focus areas of the government and championed by Nitin Gadkari, the minister in charge of the sectors concerned — will be exempt from prior clearance. These include roads that cut through forests and dredging of major rivers.

The 2020 draft also exempts most building construction projects of built-up area up to 1,50,000 sq m. This is a reiteration of the Environment Ministry’s December 2016 notification that was set aside by the National Green Tribunal in December 2017. The government subsequently moved the Supreme Court but did not get any relief.

The big shift

The two most significant changes in the new draft are the provisions for post-facto project clearance and abandoning the public trust doctrine. Projects operating in violation of the Environment Act will now be able to apply for clearance. It is a reiteration of a March 2017 notification for projects operating without clearance.

All a violator will need are two plans for remediation and resource augmentation corresponding to 1.5-2 times “the ecological damage assessed and economic benefit derived due to violation”. For such late applications, a developer will have to cough up Rs 2,000-10,000 per day for the period of delay. Consider the impact of this penalty on, say, an illegal sand miner who takes out several truckloads every day.

In an order on April 1, the Supreme Court held “ex post facto environmental clearances” contrary to law. It said: “Environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.”

The 2020 draft also spells out how the government will take cognisance of such violations. It has to be reported either by a government authority or the developers themselves. There is no scope for any public complaint about violations. Instead, the reliance is on the violators to disclose, suo motu, that they broke the law.

Legal question

An EIA notification is issued under Section 3 of the Environment Protection Act, 1986, to impose restrictions on setting up new projects or expansion or modernisation of existing projects. The section stipulates that such measures must benefit the environment.

In the April 1 order, the Supreme Court also said: “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”.

As the window for public feedback to the 2020 draft was extended on Tuesday, its various provisions aimed at facilitating the government’s doctrine of “ease of doing business” keep open the question if the notification is aligned to the purpose of the Environment Act.