Comments on Draft EIA 2020

The draft EIA notification 2020, aimed to replace the EIA notification 2006, was put in the public domain while the Ministry of Environment, Forest and Climate change (MoEFCC) sought views and comments on it from all stakeholders. The EIA makes a scientific assessment of the impacts of a project on the environment, such as a mine, irrigation dam, industrial unit or waste treatment plant.

In response to the request for public feedback, we submitted comments and suggestions on the draft EIA 2020 Notification.

We feel that the Draft Notification significantly dilutes the provisions of the EIA Notification, 2006. It also waters down several provisions of the parent legislation i.e. the Environment (Protection) Act, 1986, resulting in the erasure of long-standing principles of jurisprudence relating to environmental safeguards, such as the Polluter Pays Principle, Precautionary Principle, Public Trust Doctrine and the standards set out in international conventions such as the Rio Declaration on Environment and Development, 1992 and Paris Agreement, 2015.

The mission statement for the draft EIA notification 2020 claims to improve the process of securing environmental clearances, but in reality, the diluted rules seem to offer big corporations an unchecked ease to hastily build infrastructure at the cost of environmental accountability. In effect, if notified, these rules will weaken the safeguards for the country’s fragile ecosystem, secured through years of judicial precedents and legislative foresight.

Following are our comments and suggestions submitted to the Secretary, Ministry of Environment, Forests and Climate Change, Government of India, in response to the Draft EIA 2020 Notification.

General Comments

Environment Impact Assessment (EIA) is an evaluation process to study the environmental aftermath of any development project from its inception. The Ministry of Environment and Forests (MoEF) issued the EIA notification in 1994, making environmental clearance (EC) for certain development projects mandatory. The purpose of this notification was to impose restrictions and prohibitions on the expansion and modernisation of any activity or new projects so as to assess and minimise the potential environmental impact.

Several committee reports, CAG reports and court judgments have highlighted the importance of prior environmental approvals.

A committee constituted by the MoEF, following a 2009 draft notification, published a report in October, 2009. In it, the committee specifically recommended that modernisation and expansion of projects cannot be absolved of the framework of environmental approvals. The draft amendment was subsequently not adopted.

A subsequent March 14, 2017 MoEF notification was also loaded in favour of the industry. Industrial projects violating the 2006 notification were given the one-time opportunity to regularise their operations. However, the current 2020 notification would ensure that such post-facto approvals become the order of the day and the whole EIA process runs the risk of being dismantled into a mere procedural formality.

The Draft Notification waters down several provisions of the parent legislation, the Environment (Protection) Act, 1986

It’s critical for us to recognise that we are in the midst of a pandemic. Experts across the globe have acknowledged that Covid-19 is a zoonosis, a disease that jumped from animals to humans. Several research reports have already revealed the links between biodiversity loss/climate change and zoonotic diseases. They have stressed how anthropogenic (human activity-related) land use changes drive a range of infectious disease outbreaks and emergence events and modify the transmission of endemic infections. These drivers include agricultural encroachment, deforestation, road construction, dam building, irrigation, wetland modification, mining, the concentration or expansion of urban environments, coastal zone degradation, and other activities.1 We need to keep in mind how constant reconfiguring of our shared ecosystem is resulting in some of the deadliest infectious disease outbreaks across the world.

India’s first climate assessment report ‘Assessment of Climate Change over the Indian Region,’ prepared by the Ministry of Earth Sciences has also acknowledged that “forests and urban green spaces will deliver substantial economic benefits to the country by mitigating a wide range of the expected impacts of climate change in India and is the safest,

Time and again, the top court has come down heavily on the granting of post facto environmental clearances for industries.

most reliable means of realizing several of India’s sustainable development goals.”2 Numerous Supreme Court judgments have pushed for greater environmental accountability. For instance, the Apex Court, in a 2011 judgment held that “the present mechanism under the EIA Notification ... is deficient in many respects and what is required is a Regulator at the national level.” ³

In fact, the 2011 order to establish an independent national environmental regulator is a reflection of the Court’s disenchantment with the piecemeal nature of the environmental clearance regime and an attempt to provide a clear institutional framework to address the existing challenges.

In Alembic Pharmaceuticals Ltd. ⁴ the Court has observed as follows:

“23. The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA notification dated 27 January 1994. It is, as the judgment in Common Cause holds, detrimental to the environment and could lead to irreparable degradation.” The order is significant in the domain of India’s environmental approval framework since it upholds the principles of environmental law.

Time and again, the top court has come down heavily on the granting of post facto environmental clearances for industries. In the illegal mining in Odisha case filed by Common Cause 5 , the Court refused to accept the narrow interpretation of “illegal mining” given by the mining companies counsels, holding that “illegal mining takes within its fold excess extraction of a mineral over the permissible limit even within the mining lease area which is held under lawful authority, if that excess extraction is contrary to the mining scheme, the mining plan, the mining lease or a statutory requirement.”

Common Cause agrees with the country’s strong judicial response to egregious violations of environmental norms which not only safeguard the fragile ecosystem, the hills, the forests and the rivers but also check poverty and forced displacement of millions of people and annihilation of their cultures. The intent of new EIA notifications should not be to circumvent various court and National Green Tribunal rulings and the environmental safeguards provided by them. We also feel that legitimising ecological violations by institutionalising a permanent mechanism for post-facto approvals and hence, re-writing the norms of environmental protection will be catastrophic for the country’s vulnerable ecosystem. Therefore, we suggest the following changes (provided in the next section) to the specific Clauses of the Draft Notification 2020.

Specific comments

1) Nomenclature of terms

1. The 2020 draft notification provides a vague definition of the term “project.” Our suggestion is that the term should include sequentially dependent project components. The EIA is often carried out on the site of the main project but its corollary establishments remain overlooked. In addition, projects often evolve in different phases; particularly in cases of transmission lines, tunnels, pipelines etc. The 2006 EIA notification under clause 8(v) had a specific mention for the kinds of sequential developments stated above. We suggest a similarly worded provision with a more definite and clear understanding of the term ‘project.’
2. The draft notification gives a carte blanche to projects categorised as strategic projects, without any definition as to what constitutes a strategic and a non-strategic project. These terms need to be clearly defined.
3. The Draft Notification, 2020 has defined the term ‘violation’ in limited terms, by referring to only those cases where projects have started the construction/ installation/excavation/ expansion/modernisation without obtaining prior EC. However, it remains silent on projects which violate the conditions of EC once granted by the regulatory authority. It is submitted that violations and noncompliance of the conditions of EC must be included in the definition of violation.

2) Requirement of Prior Environment Clearance (EC)

The draft does not deem

We need to keep in mind how constant reconfiguring of our shared ecosystem is resulting in some of the deadliest infectious disease outbreaks across the world.

certain activities as construction work for the purpose of this notification. These include securing the land by fencing or compound wall; temporary shed for security guard(s); levelling of the land without any tree felling; geo-technical investigations, if any, required for the project etc. Therefore, no prior environmental clearance will be required for these activities. However, they can make significant and permanent changes to the land use pattern on a particular terrain. This is a departure from the standard set out in EIA 2006, which required an environment clearance before commencing any construction work on the land in question. We would like to submit that the standard notified in the 2006 version not be diluted.

3) Public Consultation

1. Access to detailed information set should be provided, prior to a public consultation. As of now only the summary of the draft EIA report for a project is made available on the websites of State Pollution Control Boards (SPCB)/Union Territory Pollution Control Committees (UTPCC) before the public consultation. We suggest that a GPS based shape file of the project site as well as both the draft EIA Report and its summary be shared on the websites of SPCB/UTPCC, MoEFCC and project proponents for meaningful public

   For an effective public hearing, we recommend a minimum notice period of 60 days.

   participation.
2. The notice for public hearing, as stated in both the 2006 and 2020 notifications, mandates the publication of its notice in one national and one regional vernacular newspaper. However, this provision has often been rendered ineffective, as project proponents tend to publish the notice in newspapers with limited distribution in the project site. We recommend that the public hearing notice be published in widely circulated newspapers in the proposed project sites and at least in one popular vernacular language newspaper. In addition, the local municipal corporation and the gram panchayat have to be involved for wider circulation of the notice through public hearings.
3. The draft notification has reduced the notice period for public hearing from 30 days as prescribed in the 2006 version, to 20 days. In our opinion, even 30 days, as stipulated earlier, is inadequate for projectaffected communities to make sense of the highlytechnical EIA reports of proposed constructions. For an effective public hearing, we recommend a minimum notice period of 60 days.
4. The public hearing should be conducted with a deliberate attempt to ensure that the participation is free, fair and informed. The video recording of the public hearing must be submitted with Form 2 to the regulatory authority for a final appraisal.

4) Grant of Post-facto EC

One of the most egregious aspects of the 2020 notification is that it regularises industries which had commenced operations without valid environmental clearances by granting them post facto approval opportunities, by paying the penalty amount. In doing so, the notification obliterates the Precautionary Principle, central to EIA regulations. This clause is also in violation of the Supreme Court judgment, Alembic Pharmaceuticals v. Rohit Prajapati & Ors. (CA No. 1526 of 2016) where it was held that an executive notification allowing post-facto clearance goes against the parent legislation, the Environment (Protection) Act, 1986, and is therefore illegal. In addition, the practice of post facto approvals removes the relevance of public hearings, meant to address the concerns of the relevant stakeholders. This provision, if notified, would make the mandatory procedure a mere formality, leading to gross negligence by industries.

5) Non-compliance of prior EC or prior Environment Permission (EP)

Clause 23 of the Draft Notification, 2020 has elaborated the procedure to deal with noncompliance of prior EC or prior EP conditions by project proponents. The 2006 EIA Notification stipulated the following: “Failure to comply with any of the conditions may result in withdrawal of the clearance and attract provisions of Environment (Protection) Act, 1986.” However, the current draft has diluted the penal provisions of noncompliance, further curtailing the power of the regulatory authority to withdraw the EC or take punitive action against the project proponent under the same Act. This has reduced the provision to a ‘pollute and pay’ model, which has nightmarish consequences for the ecology and livelihoods dependent on it. Further, the current punitive measures are limited to a maximum penalty amount of the bank guarantee deposited with SPCB or UTPCC. The said provision is ultra vires its parent act as it dilutes the penalty provisions laid down in it. The 1986 Act provides for a wider range of penal actions, including prosecution and punishment for non-compliance and contravention of the provisions, orders and directions issued under it.

6) Project Exemptions for EC

About 40 different categories of projects have been granted exemptions from a prior EC requirement, as per Clause 26 of the 2020 Notification. We suggest the setting up of an expert committee to review the reasons of exemption and the report of said committee be made public. The following categories of projects, if not included in EIA regulations, will lead to significant impact on land use and wildlife as discussed below:

1. Solar Thermal Power Plants and Photovoltaic (PV) Plants: Solar Power plants require massive quantities of water for electricity production which in turn has a substantial impact on surface and ground water resources. These plants, through their various concomitant projects, such as transmission lines, water pipelines have a significant role to play in shaping the topography and ecology of a region. Thus, it is completely unjustified to keep Solar Thermal Power Plants and Photovoltaic Plants outside the regulatory purview. We suggest the said projects be included in the EIA Notification as category A and B1.
2. Maintenance Dredging: In the EIA Notification, 2006, the maintenance dredging is exempted, provided it formed part of the original proposal for which the Environment Management Plan (EMP) was prepared and environmental clearance obtained. However, the proposed draft has made a deliberate attempt to remove this provision and has completely exempted maintenance dredging from an EIA requirement. This will have severe environmental consequences as many rivers and wetlands, doubling as habitats of animals and insects, will be disturbed due to dredging activities.
3. Extraction of earth for linear projects: Extraction of ordinary earth for linear projects entailing the construction of roads, pipelines has ecological fallouts. They disturb wildlife movement and damage habitats by fragmenting continuous landscape. It is submitted that extraction of earth from protected areas and other ecologically fragile areas should not be allowed. In other areas, such extraction should be made part of the EIA study undertaken by the linear projects for prior EC.
4. Liquefied Natural Gas (LNG) terminal: The 2006 notification mandated that LNG Terminals require prior EC and they were treated as Category A under item 6(a) of the Schedule. We recommend their retention within the same Category.
5. Non-Notified Eco-sensitive Zones: The draft notification mandates the recognition of only those areas notified as eco-sensitive zones by the MoEFCC. This can have severe ramifications. Although national parks, protected areas and sanctuaries will not be impacted by the notification, outdoor spaces like coastlines and shores as well as urban spaces like rivers and bird sites (such as Mumbai’s flamingo habitats) will lose all kinds of safety nets. Similarly, dry grasslands of Gujarat and Rajasthan, habitats of critically endangered fauna like the Great Indian Bustard and used by nomadic pastoralists will be seriously threatened.

7) Restricted provisions for registering complaints for

The intent of new EIA notifications should not be to circumvent various court and National Green Tribunal rulings and the environmental safeguards provided by them.

noncompliance

The draft notification places significant restrictions on the standing of complainants under Clauses 12 and 23. The lack of provisions enabling individuals and civil rights groups to raise violation complaints is an attempt at undermining the legal rights of relevant stakeholders to voice their concerns. We suggest that citizens be allowed to report violation without securing prior government approvals.

8) Post-EC Monitoring of Projects

1. The 2020 notification requires industries to submit the self-compliance reports annually, as opposed to six months, allowed by its 2006 version. The delayed reporting period flies in the face of established principles of environmental laws and will give leeway to industries to under report serious ecological consequences of their projects. Thus, we propose that self compliance reports be submitted every three months instead of annually.
2. Penalties for non-submission of self-compliance reports are negligible Penalties for non-submission of self compliance reports for projects under the B2, B1 and A category are pegged at Rs 500, Rs 1000 and Rs 2,500 per day respectively. They are a pittance and insufficient to ensure compliance. These piffling fines are unlikely to deter defaulters and should instead be replaced with more stringent punishment such as the suspension and cancellation of the prior EC.

9) Monitoring

As per Report of the C&AG (39/2016) on Environmental Clearance and Post Clearance Monitoring (https://bit. ly/3fNsW9A), there was noncompliance in setting up of a separate monitoring cell with adequate manpower in 98 out of the total 274 assessed projects. In 71 projects there were shortfalls in monitoring of environmental parameters by the project proponents. The 2020 Draft Notification proposes third party monitoring by government institutions of national repute. However, there is ambiguity about the parameters for choosing them and the nature of their functioning. Often the credibility of these institutions has come under the scanner. The CAG report in 2016 had revealed there were inadequacies in monitoring by third party agencies in 201 projects. In light of these findings, we propose a criteriabased selection process for thirdparty monitoring institutions, with details of their selection and working methods placed in public domain.

Endnotes

1 Patz, A.J. et al (2004). Unhealthy Landscapes: Policy Recommendations on Land Use Change and Infectious Disease Emergence. Accessed from: https:// bit.ly/2AWHYLP

2 R. Krishnan, J. Sanjay, Chellappan Gnanaseelan, Milind Mujumdar, Ashwini Kulkarni, and Supriyo Chakraborty. 2020. Assessment of Climate Change over the Indian Region: A Report of the Ministry of Earth Sciences (MoES), Government of India. Springer Nature. Retrieved February 20, 2020 from https://bit.ly/3fSxlbp

3 Lafarge Umiam Mining Pvt Ltd v. Union of India & Ors. (2011) 7 SCC 338

4 C.A. No. 1526 of 2016 decided by the Hon’ble Supreme Court on April 1, 2020

5 Common Cause v. Union of India [W.P.(C) 114 OF 2014

 

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