The draft Environmental impact assessment (EIA) notification 2020 proposed by the Ministry of Environment, Forest and Climate Change has met with massive opposition. As the (hard-won) extended public consultation period draws to a close on August 11, the Ministry says it has received thousands of representations and appeals. This is not surprising. The stakes for the environment — and people — are staggeringly high. There is a crying need to overhaul the environmental clearance system. But the Ministry’s proposal perpetuates the faults and weaknesses of the current EIA Notification 2006, dilutes it further in some respects, and fails to acknowledge the grave ecological crises that the country is facing. I discuss here five reasons for saying so.
First, the draft notification is legally untenable as it does not conform to its parent Act — the Environment (Protection) Act 1986. The Act requires the Centre to take measures to protect and improve the environment. By reducing the ambit and stringency of the scrutiny of impact assessment, the proposed regulatory processes will prove severely detrimental to the environment. For instance, maximum scrutiny is now reserved for fewer projects. Several categories of projects can instead apply for an “environment permission” — a simple application, no environment impact assessment required. These projects include inland waterways and hydroelectric power generation of up to 25 MW capacity, which can potentially destroy riverine and hill ecology.
Second, the proposed mechanism to deal with violations is illegal and worrying. The primary goal of the EIA Notification 2006 is to prevent, or take adequate precautionary measures to mitigate, adverse impacts of projects by requiring a clearance before construction/operations commence. But the proposed notification allows the government to grant an ex post facto environmental clearance to projects that have commenced illegally without a clearance. The proposed regularisation mechanism is based on a similar amnesty scheme which the Ministry introduced in 2017. The scheme’s legality was approved by the Madras High Court on the government’s assurance that this was a one-time measure. The wholesale adoption of this “one-time measure” into the regulatory scheme with no cut-off date and the systematic grant of ex post facto clearances flies in the face of the precedence established by Supreme Court verdicts and is against the assurance given to the High Court.
Third, there is no mention of climate change and related consideration. As India is a highly vulnerable country, it should be the government’s priority to ensure that regulatory approvals do not make parts of the country more vulnerable or adversely impact the adaptive capabilities of communities. Also, decisions that will lock-in carbon-intensive infrastructure in the long term need to be scrutinised, particularly in light of India’s commitments under the Paris Agreement process.
Fourth, the draft notification undermines procedural environmental rights. The public consultation processes currently in force under the EIA Notification 2006 are already unsatisfactory, but the draft notification curtails their scope further. It also reduces access to relevant information for project-affected persons. For instance, before a public hearing, the project proponent needs to submit the draft EIA report only in English and not in regional languages. Even this report will be made accessible for electronic inspection only on a written request, at a notified place and during office hours.
Fifth, there is no effort to put in place processes that will improve the quality of decision making, particularly of the expert appraisal committees which perform the critical function of independent evaluation of projects. The draft notification reduces the time for appraisal from 60 days under the 2006 notification to 45 days. It also curtails the discretion of the committees by disallowing them from seeking fresh studies, and sets a high bar for seeking additional studies from the project proponents.
I have highlighted some of the reasons why this draft notification must be withdrawn. The environment ministry needs to be clear about its role — its mandate is to create and sustain a regulatory framework that prevents the plunder of our natural resources, not actively accelerate the pace of environmental devastation.
This article first appeared in the print edition on August 11 under the title “Mandate Betrayed”. Ghosh is fellow, Centre for Policy Research, and Advocate-on-Record, Supreme Court.
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