EIA(2020) DRAFT, ANALYSIS (HARSHANTH ANAND)

Environment Impact Assessment (EIA) is a regulatory process that aims to strike a balance
between economic development and the environment. However, with the recent
publication of Draft EIA Notification in March 2020, this balance has been disrupted. It
allegedly strikes upon the foundations of the EIA process and emphasizes more on
facilitating ease of doing business than the conservation of the environment.
EIA was formally introduced in India through EIA Notification in 1994. Later it got replaced
by the 2006 EIA Notification. Environment Impact Assessment is a process that allows the
scrutiny of the potential adverse impacts of mining, industrial, real estate, thermal,
hydropower, nuclear, infrastructure, and other projects on the environment. These
developmental projects are required to obtain an Environment Clearance from the
regulatory authority before they can proceed. This process generally involves scoping of the
project, fair public participation, appraisal, and compliance with safeguards measures.
Consequently, the final decision on a proposed project could result in acceptance, rejection,
or acceptance with certain safeguards.
Although the 2020 Draft EIA Notification aims to replace the 2006 Notification, the first
generation issues are still relevant today. It is alleged by several academicians, former
bureaucrats, civil societies that the Draft EIA Notification of 2020 issued by Ministry of
Environment, Forests and Climate Change (MoEFCC) attempts to dilute the Environmental
Impact Assessment.

IMPORTANT PROVISIONS IN THE NEW DRAFT EIA, 2020

The notification defines three categories of projects namely A, B1 and B2 founded on the
social and economic impact and geographical extent of these impacts.
The notification envisages two kinds of approval,

 Prior environment clearance with the approval of expert committees and

Environmental permission without the approval of expert committees
 A new body called as “Technical expert committee” will be constituted with a
maximum of 10 members and carries out the function of categorizing or
decategorizing the projects as A1, B1 and B2 on scientific principles
The validity of environment clearance for mining projects will be extended to 50 from 30
years, river valley project to 15 from 10 years and all other projects to from 10 to 7 years
It is mandatory for the project proponent to submit compliance report once every year to
the relevant authorities. Failure on which a daily fine will be issued based on the project
category
The notification also contains provisions for violation and non-compliance cases which shall
be taken on a Suo moto application or on a report by Government Authority or found during
the application process or on an appraisal by appraisal committee.

DILUTION OF PUBLIC PARTICIPATION

Public participation is an important component of the procedural obligations under EIA. The
EIA Notification, 2006 provided for a systematic, time bound and transparent procedure of
public consultation which has been undermined under the new draft.
Under Clause 14 of the proposed draft, certain projects are exempted from public
consultation which is a crucial step for getting an environmental clearance. These
include inter alia, projects for modernization of irrigation projects, all category ‘B2’ projects
and projects concerning national defence and security or involving other strategic
considerations as determined by the government. ‘B2’ projects can be proceeded on the
basis of “Prior Environment Permission” without undergoing the usual EIA process. Through
this provision, the government wields wide powers to keep many projects, and the
information related thereto, beyond the purview of public scrutiny. This is a move towards
opacity, since the 2006 Notification does not contain such a blanket provision.
Earlier, where a public consultation through a public hearing was required, it was to take
place in a physical space only. The new draft adds a provision for conducting a public
hearing in “any other appropriate mode recommended by the Appraisal Committee”.
Recently, Maharashtra Pollution Control Board conducted public hearings via a video-calling
app for grant of environmental clearance for sand mining projects. Moreover, the notice
period within which the public can submit their responses on an EIA report has been
reduced from thirty days to twenty days in the name of making the process expedient.
 
EX-POST FACTO CLEARANCE TO PROJECTS
The fundamental objective of conducting an EIA prior to the commencement of a project is
to evaluate the likely impact of a proposed activity on the environment. However, the draft
proposes an ‘ex-post facto’ clearance to be given to projects which implies that a project
can begin its operations without getting an environmental clearance. Adding a provision like
this, shows the inclination of the government more towards the interests of businesses and
industries than the environment.
The decision to incorporate such a provision is in contravention with the Supreme Court’s
decision in the case of Alembic Pharmaceuticals Ltd. v. Rohit Prajapati. In this case, the
Supreme Court followed the decision of the Court in Common Cause v. Union of Indiaand
clearly held that ex-post facto clearances are unsustainable in law. The court ruled that
the “Allowing for an ex post facto clearance would essentially condone the operation of
industrial activities without the grant of an EC. In the absence of an EC, there would be no
conditions that would safeguard the environment.”
 
CENTRALISATION OF AUTHORITY
Under the draft, there is ostensibly a clear delineation and distribution of power between
the Centre and the states, with the MoEFCC having overarching powers. Moreover, it does
not contain any clause which confers powers of regulation or appraisal to the district-level
bodies. The Constitution grants inherent powers to local bodies such as municipalities and
panchayats, however, by not devolving powers onto such bodies would only mean a failure
to recognise the monumental role that they could play in the EIA process.
 
ASSESSMENT AND COMPLAINT PROCESS
As per the draft, ‘B2’ category projects have been completely exempted from public
consultation process, despite the fact they include inter alia large-scale projects related to
irrigation, inland waterways, highways, expressways, multimodal corridors, ring roads, and
aerial ropeways. The re-categorisation of such projects within the ‘B2’ category allows them
to do away with the requirement of prior Environment Clearance (“EC”) and public scrutiny.
The draft also lays down that public hearing can be done away with if a “local situation”
arises. This is tantamount to stifling the democratic process and taking away the right of the
people to voice their concerns when they are important stakeholders.
It further discourages State Pollution Control Boards or Union Territories Pollution Control
Committees from seeking additional studies from the project proponents once the Terms of
Reference for the project have been prescribed, and during the appraisal stage of the
process, restricting them only to inevitable situations.
The most draconian provisions in the draft pertain to the restriction on the persons who can
raise complaints in case of non-compliance with EC conditions. Clauses 12(1) and 23(1) of
the Draft Notification specify that only a limited category of person have the locus standi to
raise complaints. Surprisingly, only project proponents or any government authority, the
Expert Appraisal Committee or the Regulatory Authority can make cognisable complaints.
This raises an important constitutional question, as it violates the fundamental right to life
of ordinary citizens, as guaranteed by Article 21, which extends to the right to a healthy
environment.[25] Those living in the vicinity of such projects would undoubtedly be the first
and most affected in case of any non-compliance, and depriving them of the right to make
cognisable complaints is incorrect and in violation of constitutional principles.
 
 
MEASURING ENVIRONMENTAL HARM IN MONETARY TERMS
Another step in the way of debilitating the environmental protection regime is provided
under Clause 22 of the draft notification. Under Clause 22(8), if a violation is reported by the
project proponent himself, then a fee ranging from Rs. 1,000/- to Rs. 5,000/- per day
(depending upon the category in which the project falls) shall be paid. Clause 22(9) states
that if the violation is reported by the government authority or appraisal committee, then a
fee ranging from Rs. 2,000/- to Rs. 10,000/- per day shall be paid. Moreover, it is mentioned
that such amount will be calculated from the period of date of violation to the date of
application. This implies that by paying paltry sums of money for harming the environment
for a specific period of time, the project proponents get a free pass to continue with their
activities even if they still continue to substantially damage the environment. In no way it is
a practicable to equate irreversible environmental damage with money because payment of
a certain amount of compensation would not reverse the environmental damage that has
been caused.
Further, the Environment (Protection) Act, 1986 which is the parent statute for governing
environmental protection in India, provides for criminal sanctions for failing to comply with
any provisions of the Act or violating any other rule or direction issued for the protection of
the environment. By laying down a provision for monetary compensation to be paid in case
of a violation of the environmental law takes place, the draft is diluting the provision
mentioned under the parent statute which entails punishment as well as fine for such
violation.

CONCLUSION
It is the duty of the government to protect the people and also to control the environment
so as not to be polluted. The EIA 2020 is opposed to these and it is not good for our country.
Many people have raised their voices against the EIA 2020 that it should not be
implemented. Many NGOs have filed a suit against the EIA 2020 in the court and it is still
pending.

We shall hope that we will get the good news in that case. It was suggested that the
government should ask the opinion of the people about the EIA 2020 and to decide
according to the opinion of the people. It was also suggested that the government should
correct the EIA 2020, that every citizen can approach the court against the factory if the
factory pollutes the environment. Hence, we can make a good environment for future
generations.