Introduction
Much has been written about the Draft Environmental Impact Assessment Notification, 2020 (“EIA 2020” hereinafter), since the draft was released for public comments in March, 2020. EIA, 2020 would replace the existing EIA notification 2006 (“EIA 2006 hereinafter”). Criticisms have been levelled against the EIA 2020 and it has been accused of being `anti-environment’. It would be amiss to analyse the EIA 2020 in isolation without having a glimpse at its predecessor.
EIA 2006 is a complicated law which has been amended 43 times in the past. It is a piecemeal legislation which is not holistic in itself. It is time that new norms which are an improvement over EIA 2006 are brought about. But, is EIA, 2020 an improvement over EIA, 2006? Many have termed EIA 2020 as more regressive than the legislation it seeks to replace. The authors through this post shall analyse the key changes brought about by the EIA 2020 and would attempt to evaluate the efficacy/inefficacy of the same.
Does EIA 2020 Institutionalize Ex-Post Facto Environmental Clearance?
One of the key concerns emanating from EIA, 2020 is the ex-post facto environmental clearance which clause 22 of the draft allegedly purports to provide. The arguments being put forth are that in view of an ex-post facto environmental clearance, entities can set up their operations without obtaining a prior EC and then pay up later in order to remedy this violation. The Union Minister for Environment, Mr. Prakash Javadekar, has refuted these allegations by stating that Clause 22 does not mean that any new entity can set up operations without obtaining prior EC, it is applicable to those entities which are already set up but are operating without an EC. Let us examine Clause 22 in this regard.
Clause 22 deals with `Violation’. ‘Violation’ as defined under EIA 2020 includes cases, “where projects have either started the construction work or installation or excavation, whichever is earlier, on site or expanded the production and / or project area beyond the limit specified in the prior-EC without obtaining prior-EC or prior-EP”. This means that existing projects (and not new projects) who have been operating without proper clearances and permits can now regularise their operations and obtain an EC, subject to compliance with the procedures as provided under Clause 22 and outlined in Appendix XV of the EIA 2020.
This brings us to the question, is it okay to legitimise an illegal operation by granting them post-facto environmental clearance? The Supreme Court in a multitude of cases has held that an ex-post facto environmental clearance is bad in law. In one of its most recent decisions, Alembic Pharmaceuticals v. Rohit Prajapati & Ors., SC had held ex-post facto environmental clearance bad in law and had stated that, “…the reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision-making process have been completed.” Ex-post facto EC has always been present in the Indian environmental law jurisprudence.
The government through a multitude of administrative actions, has from time to time, sought to legitimise violations. The judiciary has time and again struck down these administrative actions such as circulars allowing entities to legitimise their violations. How is Clause 22 different? Clause 22 has a procedure in place, by which ex-post facto EC is either granted or refused to existing projects which started without a proper EC in place. The procedure in brief, is as follows:
Appraisal to assess that the project has been constructed or carried out at a site which under prevailing laws, is permissible or expansion has been done which can be run sustainably under compliance of environmental norms with adequate environmental safe guards.
If the assessment is positive, then legal action would be initiated against the project under Section 19 of the Environmental Protection Act, 1986 and simultaneously, Terms of Reference would be formulated for damage assessment. An EIA report would be framed, public consultation would be done and depending upon who reported/found the violation 1.5-2 times the ecological damage would be required to be paid by the project proponent, in order to obtain a prior EC.
If the assessment is negative, the project is ordered to be closed and appropriate legal action is initiated.
Heavy penalties ranging between INR 2000-10000 are levied on the project proponents for each day of delay in not obtaining prior EC.
Such detailed processes and procedures were not present in the earlier administrative actions which were struck down by the judiciary on myriad occasions. Clause 22 does not satisfy the rationale as stated by the SC in the Alembic judgment. However, despite lengthy and structured procedures in place, is it right to grant ex-post facto environmental clearance to entities? Practically, it serves the purpose. It is aimed at regularizing all the illegal and non-compliant projects which are existing and operating without a proper EC. Projects which have been operating for long and have a large number of employees, if shut down, may lead to large scale unemployment.
Moreover, the fact that it applies only to existing projects and not new projects would prevent any new entity setting up without complying with environmental laws and regulations. However, if you analyse this from a justice and an environmental safeguard perspective, this may not be the best solution. It is promoting pollute and pay practices. Moreover, following a set procedure after the damage is already done, may not be conducive for environment protection. In theory, it standardises and institutionalises a long-standing practice, but the said practice should be done away with and a new alternative should be brought about which balances both environment and the economy. EIA 2020 is supposed to be an improvement over EIA 2006. If all it does is document a practice which has been long-followed and rejected by the judiciary, then it would not be any better than its predecessor.
Does EIA 2020 Dilute Public Consultation?
Like its predecessor, EIA, 2020 has exempted certain activities from public consultation. Under EIA, 2006, all projects concerning national defence and security or involving other strategic considerations as determined by the Central Government were exempted from public consultation. EIA 2020 has retained this exemption. Similarly, the exemption to all category B-2 projects which was present under EIA 2006 has also been retained under EIA 2020, with an expanded list. It is being alleged that this may dilute the scope of public consultation. Dispensing with public consultations for security and defence reasons may be plausible but exempting an entire category of projects from public consultations is not.
EIA 2020 is supposed to be an improvement over EIA 2006. Retaining the same regressive rule may not be the way forward. Category-B2 projects under EIA 2020 inter alia include seismic surveys, mining of minor/ major minerals on less than 5 hectares of land and irrigation projects more than 2000 and less than 10,000 hectares of land. While seemingly, the impact of these projects may not seem that huge to the government, nonetheless, public consultation with respect to these should have been included in the draft EIA. Government, in order to improve this facet may divide B2 category into less, moderate and severe impact categories and impose requirements based on the impact. In this way, if the less and moderate categories are exempted from public consultation, there would be a basis for such exemption.
Moreover, the notice for public consultation has been reduced from 30 days to 20 days. There is no provision for postponement of public hearing. These steps may inconvenience the public stakeholders. A provision to the effect that those who cannot participate at such short notice can electronically participate or send in their concerns, may help offset the adverse impact, a shorter notice period may have.
Does EIA 2020 Take Away the Power of the Public to File Complaints?
EIA 2020 enables either the project proponent to report the violation/non-compliance or the government to take suo motu cognizance of the same. This seems to be at odds with Section 19 of the EPA, 1986, wherein any person upon giving 60 days’ notice can file a complaint.This provision should be clarified, as an inconsistency is blatantly present.
Are the 40 Exceptions under EIA 2020 a Cause for Concern?
EIA 2020 has listed out 40 activities which are excepted from obtaining prior EC or EP. These activities mainly include manual activities such as digging of wells, removal of sand deposits by farmers on agricultural field etc. Some of the activities such as exploration and seismic surveys, mineral prospecting etc. were exempted under EIA, 2006 as well. These have been retained in the list of exceptions. The assumption that these activities are less likely to cause an adverse environmental impact may have guided the government in putting them under the exceptions list. However, a clear rationale should have been spelt out in order to allay people’s concerns.
How is EIA 2020 Better than EIA 2006?
While EIA 2020 is being pulled up for the many flaws it possesses, it is also imperative to bring out, if and whether this new proposed regulation is an advancement over its predecessor. Some of the ways in which EIA 2020 provides a more balanced and holistic approach are:
As opposed to EIA 2006, EIA 2020 lists down 10 areas of expertise for the consideration of the Expert Appraisal Committee (EAC). Some of the newly added areas are social impact assessment, pollution prevention and mitigation and environmental laws.
In an unprecedented move, a technical committee has been set up to undertake categorization or re-categorization of projects on scientific principles including any streamlining of procedures.
The stages involved in granting prior EC have been expanded and have been made more holistic. However, Category-B2 projects are subject to lesser scrutiny.
Regulation of coastal zones is an important and positive change being brought about. Now projects situated within a minimum distance of 500 metres of the coast would be liable for regulation. Depending upon the criteria, projects can be categorised under A, B1 or B2 categories.
EIA 2020 has provided the flexibility of holding public consultation through any appropriate mode. Such flexibility was not present in EIA 2006.
Moreover, a provision to amend the prior EC has also been given, in case some change occurs in the project.
One notable improvement of EIA 2020 over EIA 2006 is the provision of appeal against the decision of the regulatory authority before the National Green Tribunal. EIA 2006 did not have any appellate provision.
EIA 2006 provided for submission of compliance report twice a year. However, there was no penalty for failure to submit the same. Hence, while, in theory, compliance reports were supposed to be submitted twice a year, practically, there was no consequence to this rule. EIA 2020 has reduced the compliance burden of the companies to submission of compliance report once a year and has introduced penalties for delay in submission of the same.
EIA 2020 has introduced the District Survey Report and Monitoring Procedure for sand mining/mining of minor minerals/river bed mining. No such provision was present under EIA 2006.
EIA 2006 did not have a mechanism in place to deal with violations and non-compliances. EIA 2020 has introduced the same.
Conclusion
EIA 2020 seems to be an attempt on the part of the government to overcome the stagnation and corruption that had set in, owing to unclear and complicated laws. However, the law is still in its first draft and has its shortcomings. Some of the less-talked about concerns of EIA 2020 are:
It is still retaining the project-specific environment impact assessment as opposed to taking into account a cumulative impact of the activity being carried out on the environment.
An awareness session before the public consultation should be carried out as the local people who would be impacted by the projects may not be aware of what they are being consulted for. EIA 2020 does not address this practical concern.
EIA 2020 fails to take into account Strategic Environmental Assessment (SEA) which looks at environmental impact from a broader perspective rather than adopting a narrow view of assessing the impact of an individual project as under EIA.
More comprehensive monitoring measures should have been provided in order to detect violations. Money cannot be the touchstone against which violations are measured.
There should be some mechanism to ward off corruption and bribery and ensure proper implementation of the rules and regulations as stipulated under EIA 2020.
EIA 2020 aims to maintain a balance between environment and economy, but falls short of this aim. While, it is a very small step towards achieving this balance, much is desired to be fulfilled before it can take shape of a formal law. We need to remember that EIA 2020 is in its draft stage right now. Public has sent in their comments and the government would take these into consideration before it releases the final draft. Hopefully, the final law which comes into force redresses the concerns being raised and is a holistic law which deftly balances both the environment and the economy.
1. Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors., 2020 SCC OnLine SC 347.
2. C. Bhushan, Environmental Hot Potato: Current EIA Process is defunct. Parliament must legislate a new law based on sound science, Times of India (07/08/2020), available at https://timesofindia.indiatimes.com/blogs/toi-edit-page/environmental-hot-potato-current-eia-process-is-defunct-parliament-must-legislate-a-new-law-based-on-sound-science/, last seen on 18/08/2020.
3. Environment Impact Assessment Notification, 2020 (draft bill, March 2020).
4. Environment Impact Assessment Notification, 2006.
5. N. Rocque, Towards Progress and Preservation: A commentary on the draft EIA 2020 notification, Observer Research Foundation, available at https://www.orfonline.org/expert-speak/towards-progress-preservation-commentary-draft-eia-2020-notification-68087/, last seen on 18/08/2020.
6. M.R. Subramani, EIA Draft Notification 2020 Explained: Will it Harm Environment as Alleged by Opponents?, Swarajya, available at https://swarajyamag.com/politics/eia-draft-notification-2020-explained-will-it-harm-environment-as-alleged-by-critics-and-opponents, last seen on 18/08/2020.
7. S. Suresh, Explained: The Curious Case of India’s Draft EIA Notification 2020, The Quint (11/08/2020), available at https://www.thequint.com/explainers/explained-the-curious-case-of-india-draft-environment-impact-assessment-notification-2020, last seen on 18/08/2020.
Authored by Soumya Shekhar, independent legal research consultant, alumnus of NLU, Delhi and National University of Singapore. She was assisted by Siddharth Jain, a third year student at Rajiv Gandhi National University of Law, Punjab. This blog is a part of the RSRR Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.