Amid the Covid-19 crisis, the ministry of environment, forest and climate change (MoEFCC) has proposed a draft environmental impact assessment (EIA) notification to replace the current notification, which goes back to 2006.

The ministry released this new draft for public comments on March 11, 2020 and as the time period of 60 days has already been over, it is likely to become law in the coming days. As the whole nation has been stranded due to national lockdown since March 24 this year, little room has been given by the mainstream media to discuss the loopholes of this draft.

Over the years, several provisions in the EIA 2006 have been challenged in the National Green Tribunal (NGT) and led to the MoEF modifying the rules. To accommodate all these revisions in the new EIA, the Union environment ministry last year circulated a ‘zero draft’ to States where it sought comments from State authorities and prepared the draft that has recently been made public for feedback.

Before discussing the serious loopholes that have been pointed out by many environmental activists, we must remember that the concept of EIA came to India only in 1978-1979. It became mandatory in 1994 after the government notified it as a requirement under the Environment Protection Act, 1986.

As the name suggests, the EIA is a very important component in the process of any development projects that can measure as well as stipulate the environmental impact of projects and find ways to reduce their adverse impact upon the environment. An EIA also involves the people concerned in the decision-making process of granting final approval to any developmental project or activity.

Regarding the importance of this new notification, the environment ministry says, “There have been several amendments issued to the EIA Notification, 2006, from time to time, for streamlining the process, decentralization and implementation of the directions of Courts and National Green Tribunal. Though the EIA Notification, 2006 has helped in realizing necessary environmental safeguards by assessing environment impacts due to the proposed projects, that require Prior Environment Clearance at the planning stage itself, the Central Government seeks to make the process more transparent and expedient through implementation of online system, further delegations, rationalization, standardization of the process, etc…

“The ministry had issued the notification number S.O. 804 (E), dated the 14th March, 2017 laying down procedure for appraisal of the violation cases with a time window of six months. The said notification defined violation of projects which have started the construction work, or have undertaken expansion or modernization or change in product- mix without Prior Environment Clearance.

“However, such violations being recurring in nature may come to the notice in future during the process of appraisal or monitoring or inspection by Regulatory Authorities. Therefore, the ministry deems it necessary to lay down the procedure to bring such violation projects under the regulations in the interest of environment at the earliest point of time rather than leaving them unregulated and unchecked, which will be more damaging to the environment;”

Though through this new notification the government is pledging a commitment to conduct the whole EIA procedure in a transparent and expedient way, but if we go through this draft EIA, we would find a conflicting position of the regularity and other concerned authorities.

We have observed that like the 1994 notification, the 2006 notification also provided for the EIA to be conducted at the very closing stages of the environmental clearance process. Therefore, public get little opportunity to take an active role in the whole process.

Moreover, apart from diluting the public consultation procedure, the government has also made several amendments to the 2006 notification which has exempted several industries from this important process. For last a couple of years the government has been criticized for weakening  the EIA process just to improve the ‘ease of doing business’ and attract greater investment.

Here I would like to briefly summarize certain major shortcomings of this draft notification.

Diluting the public consultation

The new notification has stipulated certain time period to complete each stage of public consultation. The Appendix I of the notification has mentioned about the time period for different activities relating to conduct of public hearing which are follows:

(i) Finalization of the date, time and exact venue for the conduct of public hearing within ten days of the date of receipt of application; (ii) Advertise the details of public hearing in one major National Daily and one vernacular daily or Official State Language in another five days from the date of consent of presiding officer.  (iii) Notice period of twenty days shall be provided to the public for furnishing their responses; (iv) The SPCB or UTPCC concerned shall sent the public hearing proceedings to the concerned Regulatory Authority within five days of the completion of the public hearing.

So, it is clear that the new notification has reduced time period from 30 days (The 2006 notification provided a minimum of 30 days notice period to the public for furnishing their responses) to 20 days for the public to submit their responses during a public hearing for any application seeking environmental clearance.

It also requires that the public hearing process be completed in 40 days –contrary to 45 days under the 2006 notification. The main reason stated for reducing the time is that it would become easy for new investments to complete the formalities of EIA.

Moreover, the new notification has also waived the importance of public consultation if the agency responsible to conduct the public consultation failed to organize it within the stipulated time as prescribed by this notification.

Section 14(8) of the notification has specifically mentioned that if the public agency or authority who is responsible for organising public consultation reports to the Regulatory Authority concerned that owing to the local situation public hearing could not be organised then after due consideration the Regulatory Authority may decide that the public consultation in the case need not include the public hearing.

The Supreme Court and several high courts time to time observed that if adequate time is not given for the preparation of views, comments and suggestions to those who would be affected by the project, then such public hearings would not be meaningful.

In the Samarth Trust Case, the Delhi high court had considered EIAs “a part of participatory justice in which the voice is given to the voiceless and it is like a jan sunwai, where the community is the jury.”

Therefore, unless a public hearing is meaningful, the whole EIA process would lack transparency and credibility. The 2020 notification in many ways has made the whole process of EIA non-transparent by diminishing the role of public consultation in the process of obtaining prior environmental clearance

Self compliance

The notification has mentioned about a flawed monitoring mechanism which solely relies on self-compliance. The government is asking for a compliance report to be filed by the project proponent’s themselves. This process would undoubtedly give huge opportunity to the project proponents to submit false and forged information regarding the projects.

If the proper verification is not done by a government institution then the project proponents will get abundant room for submitting or uploading information which may have discrepancies. The new notification has also given an extensive time period for submitting compliance report.

The 2006 notification compelled the project proponents to submit a report every six months, showing that they are carrying out their activities as per the terms on which permission has been granted.

However, the new notification requires the promoter to submit a report only once every year. Because of the extended reporting time certain irreversible environmental, social or health consequences of the project could go unnoticed.

Providing a longer period for filing reports would definitely afford opportunity to the promoter to hide disastrous consequences of a project and in such a situation, the concerned authorities will have very little chance to question the promoters for not following the terms of clearance. The only remedy would be to impose a fine or punishment; but that would not invalidate the harmful consequences on the environment.

Extension of exemption

The Supreme Court in Vellore Citizens Welfare Forum v Union of India case observed that companies are vital for the country’s development, but having regard to pollution, the doctrine of ‘sustainable development’ must be adopted by them as a balancing concept.

If final clearance is granted after taking the environmental, social, health concerns into account, then it can be said that the government is using this process as a tool to ensure sustainability. But instead of adopting a comprehensive and transparent mechanism to inquire about the consequences of a project or activities, the new draft has increased the number of projects or activities which do not require an EIA process to be conducted. Similarly, this notification has also exempted a good number of projects and industries that do not require prior environment clearance or prior environment permission.

Apart from many industries,  the new notification has exempted coal and non-coal mineral prospecting; industrial estate (with project area below 500 hectares and not housing any industry of category ‘A’ or ‘B1’ or ‘B2’ project listed in the schedule);  seismic surveys (which are part of exploration surveys for offshore and onshore oil and gas including coal bed methane and shale gas, provided the concession areas have got previous conditions of prior-EC or prior-EP for physical survey); thermal power plants (using waste heat recovery boilers (WHRB) without any auxiliary fuel) etc  from prior environment clearance.

As a lot of debate has been in the air regarding the proposed exploration of coal in the Dihing–Patkai Elephant Reserve, we must have to remember that the new notification has already allowed coal and non-coal mineral prospecting without having any prior environment permission or clearance. If such unregulated and unchecked prospecting is allowed without addressing the grievances of the affected people, in near future we will have to lose everything of our environment in the name of development.

Kishor Kumar Kalita

Kishor Kumar Kalita is a commentator based in Guwahati and can be reached at kishorassam@gmail.com