Environment Impact Assessment (EIA) has been the process which studies the effect of a proposed industrial/infrastructural project on the environment and communities. In 1994, India got her first EIA norms—a legal framework for regulating activities concerning natural resources. An EIA notification is issued under Section 3 of the Environment Protection Act, 1986, which lays out the process of conducting EIAs to appraise a project.

Based on these assessments, projects get approved or denied environmental clearance by a panel of experts. EIA also suggest options for mitigation of impact and course of action in case of disaster.  The 1994 notification was replaced in 2006. But it has been the new draft brought out by the government earlier this year to make the EIA “process more transparent and expedient” that in turn has drawn flak for its regressive departure from the earlier version.

There have been specific areas of concern in the changes brought about in Draft EIA 2020– most significant being the provisions for post-facto project clearance; Dilution and in some cases elimination of the process of public consultation; and re-categorization of projects so as to exempt a wide range of projects from the scrutiny of Appraisal Committees and public consultation / benefits to projects through various clauses.

Although projects need to go through the EIA process for obtaining prior environmental clearance, projects running without EIA clearances are not hard to find. The blow out and the consequent inferno at a oil well, operated by Oil India Limited at Baghjan in Tinsukia district and the catastrophe that followed has been a classic example where due to poor adherence of environment norms, severe damage had been caused to livelihoods, biodiversity and the environment as a whole.

The disaster also brought to surface the grave misconduct of the oil plant that had been operating for over 15 years without obtaining prior consent from the State Pollution Control Board. The new Draft in a way legitimizes such violation, providing window to get clearance by adding punitive clauses which itself has no mechanism to monitor.

Moreover, issuing of guidelines for assessment of ecological damage under the EIA 2020 Draft has been entrusted to Central Pollution Control Board solely leaving out wildlife institutes, environment organizations and other civil society groups. Ecological damage is about ecology and not limited to pollution. Ecological damage can also result in reduction in number of species, destruction of breeding sites and degradation of ecosystems and affect the socio-economic scenario (As had happened in the blowout in Baghjan followed by an inferno).

Post-facto legalization of violations by projects

Clause 22 of EIA 2020 Draft says: The cases of violation will be appraised by Appraisal Committee with a view to assess that the project has been constructed or carried 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 safeguards;  In case, finding of the Appraisal Committee is negative, closure of the project shall be recommended along with other actions under the law including directions for remediation.

As ‘post-facto approval’ would be done in case the project ‘can be run sustainably’ and no definition of sustainability has been provided, it could be fairly concluded that a project may run sustainably but still cause environmental damage. In a way projects will be allowed to continue even if they have not obtained Environment Clearance. This amendment fundamentally defeats the purpose of Environment Clearance.   The Supreme Court in its April 2020 ruling said “ex post facto clearance is in derogation of fundamental principles of environmental jurisprudence.”

The 2020 draft also spells out how the government will take cognizance 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.

Clause 22 and 23 have been seen as bail outs to offenders who have illegally looted natural resources. In other words these clauses gives license for violators who would be condoned by paying a fine so that they can continue with their activity as it happened in the illegal coal mining case in Saleki inside the Dehing Patkai Elephant Project.  Thus it is nothing but post facto legalization of all the illegal acts committed by the project promoters.

Dilution /elimination of public consultation

Clause 14 of the Draft EIA 2020 does grave injustice to the rights of people who will be adversely affected by projects. Conducting a public hearing has been crucial in the EIA process and has significantly helped communities to not only get information about the projects being proposed in their areas, but also to speak about their concerns. EIA 2020 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.

In Clause 5.7 there is also as an extremely vague definition of “strategic” projects, apart from defence and security projects, which will not require either appraisal or public consultation. In addition no information need be put in the public domain. Any industry such as power generation or linear projects such as roads and pipelines may be termed strategic and be exempted from environmental regulation. Opening a window for summary clearance for any project deemed strategic without having to explain why is highly arbitrary.

The case becomes more complicated when it comes to the Northeast because of its “strategic” location. The region shares much of its border with China, Myanmar, Bhutan and Bangladesh. The ‘border area’ defined in EIA 2020 Draft as “area falling within 100 kilometres aerial distance from the Line of Actual Control,” a bigger threat now looms large on the region’s forests and critical wildlife habitats with large scale endemism and famed biodiversity.

India being a signatory to 1992 Rio Declaration on Environment and Development, public hearing was included in the environment impact assessment process.

“Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes.

States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided,” notes the Principle 10, adopted in 1992 as a part of the Rio Declaration on Environment and Development. India is a signatory to this Declaration. Public hearing was included in the environment impact assessment process keeping in mind the country’s international commitment. Now, the Draft EIA 2020 seeks to scrap this provision which would mean backtracking on our international climate commitments.

Re-categorization of projects to exempt projects from scrutiny

Clause 26 of the new Draft seeks re-categorization of those projects for which prior environmental clearance is not required. The list includes industries like thermal power projects, solar parks, coal and non coal mineral prospecting, river valley projects, defence manufacturing units for explosives and several others which have a known negative impact on the environment. With the opening up of the mining sector to commercial interests and opencast mining being the major method of mining approved by the government, it is feared that the new Draft provides for a new lease of destruction of air, water and land around open cast mining sites. Also the increasing of ToR period of mining projects up to 50 years also becomes unethical considering the vulnerability of rivers and mineral sites.

The re-categorization and placing of a large number of polluting industries in Category B2 which do not require scrutiny by Appraisal Committees and in many cases also do not require prior environment clearance or public consultation is against the EIA 2006 and the Environment Protection Act 1986, say experts.  The most blatant is the virtual elimination of regulations and scrutiny for the real estate and construction sector.

Hazardous chemicals pose grave threat to the environment and public health. The handling of hazardous waste was given due importance in the 2006 notification –“Isolated storage & handling of hazardous chemicals (As per threshold planning quantity indicated in column 3 of schedule 2 & 3 of MSIHC Rules 1989 amended 2000)” and placed in Category A.

This provision has been removed from the EIA 2020 Draft.

Environment activists have seen the Draft Environment Impact Assessment (EIA) 2020 as a regressive departure from the 2006 version and as an attempt to weaken environmental regulation and silence affected communities. Hence the call for a united stand against this draft.

Mubina Akhtar

Mubina Akhtar is an environmental journalist and wildlife activist. She can be reached at: newildflowers@gmail.com