What's Wrong With EIA Notification 2020

And Why It Is Critical

By: P Sanskar Naidu

 
Abstract
India is not immune to the effects of climate change, which affects the
entire world. More than a million animals were killed during the bushfires
in Australia. Massive amounts of methane are being released due to the
melting of permafrost in Siberia, melting of glaciers in the Himalayas, as
well as massive deforestation in the Amazon. All these factors are stressing
our environment, and we are witnessing the effects worldwide. Also, in
India, there are major environmental projects that threaten ecosystems, such
as the Dibang Valley hydropower project and many others.
 
Generally, the main objective of an Environmental Impact Assessment notification
is to protect the environment and reduce environmental impact, especially when
the environment conflicts with development. In addition, it safeguards the health
and safety of those connected to the environment. The purpose of this manuscript
is to examine the role of Environmental Impact Assessments in the protection of
the environment. Aside from studying the differences between the EIA
Notification 2006 and the draft 2020 EIA Notification draft, we have also taken a
closer look at the most pertinent issues and concerns regarding this 2020 EIA
Notification draft.
 
 
KEYWORDS:
 
 
Introduction
This paper is devoted to evaluating and examining the concept of
environmental impact assessments and their importance for the protection
of the environment. It also identifies the major problems with the EIA
Notification 2020 draft.
An Environment Impact Assessment is a way to examine the potential negative
impact of a project on the environment directly or indirectly on a short-term basis
and long-term basis, and to determine whether the proposed project will have
positive or negative effects on the environment from its social-cultural standpoint,
biological diversity, and aesthetic perspective, based on the current condition of
the environment where the project is to be implemented and its potential impact on
the environment in due course of time. It is anticipatory, participatory, and
systematic.
 
An extremely tragic event in the history of our country led to the birth of
the EIA in India. It was the Bhopal Gas Tragedy of 1984 when the leak of
isocyanate gas killed 7000 people in the wee hours of the morning. Before
that time, obtaining environmental clearance was mostly an administrative
decision made by the central government.
After this incident, the Indian government set up the Environmental
Protection Act under which a notification was passed in 1994 to make EIA
mandatory for certain projects. On 27 January 1994, the Ministry of
Environment and Forests under the EPA 1986 promulgated the EIA
notification. This made environmental clearance mandatory for the
expansion or modernization of any activity or for setting up new projects.
 
 Later in September 2006, a new EIA notification was passed. This
decentralizes the environmental clearance process so that some projects
need central clearance and some need clearance at the state level which is
EIA 2006. In March 2020 amendments to the notification were finalized
and the draft EIA was released for public comments and suggestions. 
 
 
 
Background of EIA
 
The National Environmental Policy Act (NEPA) 1969 of the US introduced
the concept of environmental impact assessment, which was implemented
by Federal Agencies to evaluate the impacts of environmental decisions.
This is one of the most successful environmental policy innovations of the
20th century. Many countries followed suit in 1970. In the United States,
after the publication of Carson's book "Silent Spring", the National
Environmental Policy Act 1969 was enacted as legislation for consideration
of the environment for large-scale projects. This was the basis for the
development of EIA.
 
 The OECD countries' “Declaration on Environmental Policy” (1974) was
the first international document to incorporate EIA. Article 9 of this
declaration outlines the importance of assessing the environmental impact
of significant public or private activities before their implementation, as a
follow-up to the UN Conference on the Human Environment in 1972. The
history of this is also seen in the Earth Summit Rio conference 1992.
Principle 17 of the Rio declaration states that EIA as a National Instrument
shall be undertaken for proposed activities that are likely to have a
significant adverse impact on the environment and are subject to the
decision of a competent national authority.
 Again as per the Rio declaration, EIA refers to both a decision-making
process and a document that provides a systematic accountable evaluation
of the potential environmental and social-economic impacts of proposed
development activity, action, or its practical alternatives. 
 
The origin of the idea of EIA came from the NEPA Act of the USA, NEPA
Act came into existence in December 1969 and a signed by President Nixon
into law on January 1st, 1970. The United States NEPA defines EIA as a
systematic interdisciplinary approach that will ensure the integrated use of
natural and social sciences and the environmental design arts in planning
and decision-making which may have an impact on man's environment.
 
 The purpose of this Act was to establish a national policy to promote
productive and enjoyable harmony between the sexes. It also promoted
efforts to prevent or eliminate environmental and biosphere damage. In
addition, it stimulated the health and welfare of men, to enhance the
understanding of the environment, preserve natural resources, and establish
a council on environmental quality.
 
 In the Indian context, this started after India participated in the Stockholm
conference in 1972 and the Rio Summit in 1992. India strengthened its
environmental governance India has also been a part of global climate
agreements like the United Nations Framework Convention on Climate
Change (UNFCCC) and Kyoto Protocol and both of these instruments have
emphasized the need for a strong EIA regime to minimize the adverse
effects of Climate Change. Also, the convention on biodiversity stresses the
need for an effective process to safeguard biological resources. India
participated in these events and these significant events in environmental
history have emphasized the importance of EIA. After participation in the
stock Stockholm conference, Indian ecological jurisprudence saw a
transitional era. Several new legislation came up like The Wildlife
(Protection) Act,1972, The Water (Prevention and Control of Pollution)
Act, 1974, The Forest (Conservation) Act 1980, and so on. There is one
very significant addition to the 42nd amendment to the Constitution, which
is the introduction of Article 48A and Article 51A (g), both of which
advocate the protection and improvement of the environment.
 
After the Bhopal gas tragedy 1984 Environmental Protection Act of 1986
under Article 253 of the Constitution was enacted and it became umbrella
legislation for environmental protection in India. The EIA regulations in
India emanate from section 3 of this legislation. Section 3 gives the
authority to the union government to take measures to protect and improve
the environment. The Indian government started conducting EIAs in 1978-
79, although they did not become mandatory until 1994. The first EIA study
was carried out as a director of the Planning Commission Government of
India under the Department of Science and Technology in 1978. In 1980
after the formation of the Department of Environment the job of
environmental clearance was transferred to the Department of Environment
from the department of Science and Technology. Environmental Clearance
and EIA became mandatory in 1994 for selected projects. The Union
Ministry of Environment and Forest (MEF), Government of India, under
the Environmental (Protection) Act 1986, on 27 January 1994 give a
notification on Environmental Impact Assessment of Development projects.
There are several amendments in this notification from time to time.
 
 The main steps involved in EIA are preliminary activities, impact
identification, baseline study, impact evaluation, assessment,
documentation, decision making, and post audits.
 
 
 
The Features Of EIA
 
EIA notification is a part of the environmental legislation. In India, we have
a special branch of environmental legislation to deal with environment-
related issues and this peculiarity gives select features to the environmental
legislation.
 
Environment impact assessment notification is notified under a separate branch of
environmental legislation and the Environment Protection Act 1986. The act has
special environmental laws that have silent features, such as criminal jurisdiction,
i.e., cases are handled by the criminal courts. Stringent punishments are handed
down, such as up to seven years in prison, penalties like five lakhs, seven lakhs.
NGT (National Green Tribunal Act) has been designated as the special court.
 
This environmental legislation also offers an additional feature, which is that it
applies to all government authorities. This is because ensuring the environment is
a priority and there is no concession for government authorities and government
bodies to pollute as part of any project.
 
In addition to public participation, environmental legislation is also giving special
attention to public participation, such as holding public hearings, inviting NGOs to
participate, and making information related to the project public. Therefore, public
participation is an imperative feature of environmental isolation.
 
 EIA is also one of the widely accepted norms of international
environmental law. Typically, such an assessment, which balances
economic benefits with environmental costs. The logic of such an
assessment dictates that before a project is undertaken, its economic
benefits must substantially exceed its environmental cost.
 
 
EIA Notification 1986
 
In 1994, for the first time under the Environment Protection Act, 1986, the
EIA notification was formulated in India. It made environmental clearance
mandatory for expansion, modernization, and the setting up of new projects.
Since then, EIA has been amended several times. The most important
amendment happened in 2006. 
 
On 27th January 1994, the MoEF notified mandatory EIA's under Rule 5 of
the Environment (Protection) Rules, 1986 for 29 designated projects (after
amendments 30 activities). This is the principal piece of legislation
governing environmental impact assessment. 
 
The EIA was made a mandatory requirement under the Environment
(Protection) Rules, 1986, with the following objectives: 
 
Predict the environmental impacts of the project, Find ways and means to
reduce adverse impacts, Shape the projects to suit the local environment,
Present the predictions and options to the decision-makers. 
 
 
 
EIA Notification 2006
 
The EIA-2006 is an outcome of the recommendations made by the
Govindarajan Committee. It was constituted to examine the procedures for
investment approvals and project implementation. It found that the
environment clearance causes maximum delay to projects and
recommended that some of the cumbersome procedures be modified.
Consultations on the draft notification were held only with representatives
from industry and central government agencies. 
 
The 2006 Notification tried to bring in more projects within the purview of
the environmental clearance process. As a result, a revised list of projects
and activities has been redrawn that requires prior environmental clearance.
Most importantly, there is no categorization of projects requiring EIA based
on the investment. Instead, the size or capacity of the project determines
whether it is cleared by the central or state government. 
 
The major difference in the EIA Notification 2006 from the earlier one
(1994) is its attempt to decentralize power to the State Government. Earlier
all the projects under schedule 1 were submitted to the Central Government
for environmental clearance. 
However, as per the 2006 notification, a significant number of projects will
be submitted to the state for clearance depending on their size/capacity/area.
For this, the notification has made a provision to form an expert panel, the
Environment Appraisal Committees (SEAC) at the State level. 
 
 
Environmental Clearance Under EIA
 
EIA Notification categorizes projects as "A", "B1", "B2" in the Schedule.
For "A" category projects, Environmental Clearance (EC) is granted by
MOEF. For the "B1" and "B2" category projects, EC is granted by
State/Union Regulatory Authority (SEIAA or UTEIAA). The application
form for consent is annexed. For some projects, a feasibility study is
required. For some projects, an Environment Impact Assessment (EIA)
report is prepared. 
 
An application is made before the Regulatory Authority as per the project.
Feasibility study for Category "A" and "B1" projects. EIA Reports are
submitted. If the Regulatory Authority suggests some corrections or
additions those are carried out. For Category "A" and "B1" projects public
consultation/hearing is required. Applications for EC are considered after
public hearings for Category "A" and Category "B1" projects, along with
the EIA and public hearing report.
 
 
 
 
Key Differences Between Old EIA Notification 2006 And New EIA
Notification 2020 Draft
 
Environmental Clearance - In EIA 2006 EC (Environmental Clearance) was
required before any construction work or preparation of land, only securing
of land was permissible. This means that under EIA notification 2006,
which is currently in effect, preparation of land, or any kind of structure, or
cutting of trees or cutting of boundaries or compounds, was not allowed
until the project proponent received permission and the plot used to be
openly accessible so that the public could see what was being done on with
the project.
 
So a prior environmental clearance was needed as per EIA Notification
2006 whereas in EIA Notification draft 2020 prior environmental clearance
is not mandatory for securing land, building compound walls, and
temporary sheds although it is required for starting any construction work.
 
Validity Of EC – In EIA Notification 2006 the validity of EC for mining
projects was thirty years, for river valley projects it was ten years, and for
all other projects, it was five years.
 
Whereas in EIA Notification 2020 draft the validity of EC for the mining
project is fifty years, for the river valley project is fifteen years, and for all
other projects ten years.
 
So whenever an environmental clearance is granted, the clearance is
conditional and for the duration of the period, so now the duration of the
period has been lengthened.
 
Once the period of environmental clearance is over, it has to be reapplied
for. In the case of environmental clearance, scrutiny can occur; therefore,
once the proponent of the project receives an environmental clearance, he is
free of scrutiny for a longer period.d.
 
Public Hearing Notification - Public hearings are conducted under the EIA
notification process as part of public participation.
In EIA Notification 2006 the notice period for a public hearing and
furnishing responses was 30 days.
 
Whereas in EIA Notification 2020 the notice period for public hearing and
furnishing responses has been reduced from 30 days to 20 days.
 
Monitoring Of EC – In EIA Notification 2006 the monitoring of EC was
done twice a year after every six months, which means it lays down that the
project proponent has to report because any environmental clearance given
for a project is given with the condition so how far the project proponent is
following the condition, what is the status of the project, all that needs to be
reported in the compliance report in every six months as per the EIA 2006
Notification and it was mandatory and this environmental compliance
report is a public document, it is made public on the regulatory authority
website, so this is a very important document in keeping the information
and update of the information of the project on the website and making it
public.
 
EIA Notification 2020 draft prescribes that this report is now mandatory
only once a year and it also has a provision that now allows regularisation,
so if the report has not been put up by the project proponent in time then he
needs to pay per day delay fees and then he can continue with the delay,
whereas earlier as per EIA Notification 2006 it was considered as an
infringement of the Environment Protection Act.
 
Exemptions According To The New Draft - 1. In EIA 2006 only projects
concerning national defense and security were excepted from public consultation.
But in EIA Notification 2020, public consultation is exempted for all linear
projects for items 31-38 i.e. port, disposal facilities, ship breaking, etc. In border
areas.
2. In EIA Notification 2020, the border area is newly defined as 100 km
aerial distance from the actual line of control.
3. In addition to that in the new EIA Notification 2020 public consultation
is exempted for certain 'strategically considered projects'. The central
government will have full power to decide if a certain project falls under
this category. 
4. Inland waterways and national highways projects excluded from the public
consultation 
5. Construction projects less than 1,50,000 sq km exempt from EIA 
 
 
Dealing With Violated Cases - In EIA 2006, there was a provision for violators of
EC. They were covered by section 15 of the Environment Protection Act, so
anyone could claim a violation. But in EIA Notification 2020, cognizance of the
violation can be claimed by the project proponent themselves or the regulatory
authority. Violation of EC is now regularized by charging late fees.
 
 
What Are The Major Concerns About EIA Notification 2020 And Why It Is
Problematic
 
 
Post-Facto Clearance
Environmental Clearance (EC) is a method to get clearance from the
regulatory board for specific projects that lead to environmental pollution,
which can either be approved or disapproved based on the fulfillment or
non-fulfillment of the regulatory process.
EIA Notification 2020 draft allows post-facto clearance. This means that
clearance for the project can be taken even after the project work has been
started or has been running without securing environmental clearance. The
project can get environmental clearance later. This is extremely dangerous.
We have already seen the Vishakhapatnam gas leak. The chemical plant
involved in that case was operating without environmental clearance. The
leaked gas killed 11 people and sickened over 1,000, and also affected
many flora and fauna in the area. Therefore, prior environmental clearance
is very necessary, otherwise, it can lead to very adverse effects. As an
illustration, a coal mine being constructed after clearing a forest without
any environmental clearance can avoid being stopped by claiming the
clearance will be taken later. Later, however, when they apply for
clearance, they may not be approved. However, by then, they have already
cleared off a whole forest, so post facto clearance may lead to such cases
that are hazardous to our environment.
 
In a recent judgment (2020) in the case of Alembic Pharmaceuticals Ltd vs
Rohit Prajapati, the Supreme Court, also referring to Common Cause vs.
Union of India judgment struck down and condemned ex-post-facto
environmental clearance (a concept which, surprisingly, the new draft EIA
proposes to regularise). 
It stated: "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." So in a way, we can say that the new draft is
against the judgment of the Supreme Court.
 
Strategic projects exempted (No information in the public domain)
 
It is correct that previously any project concerning national defense or
security was not put up for public hearing. In addition, the information
related to it was not made publicly available. However, the government has
included one extra line in this new draft, which states "All projects
concerning national defense and security or involving other strategic
considerations as determined by the central government." This third part is
problematic because it implies that, according to the government, no
information regarding strategic projects would be revealed to the public nor
would there be a public hearing. It is up to the government to decide what is
strategically important and what isn't even if it doesn't threaten national
security. This means that the government can put a stamp of “strategic” on
any project and then no further information regarding that would be
revealed by the government and no public hearing would be held. This
power of the government can be misused and the projects that should have
been important for the public to know but due to the government declaring
them strategic no information regarding them would be shared with the
public.
 
Public Hearing

Draft EIA notification 2020 states that the public shall only have 20 days to
provide their responses. Earlier 30 days were allocated for a public hearing but as
per the new draft, only 20 days will be provided. Previously these 30 days were
already insufficient now it has been reduced to 20 days. For projects that are going
to be for very long years like dams, etc, the public is being given 20 days to assess
the negative impact of it is not at all sufficient, it's a very short window for them to
do that and put the points before the government officials and areas where
information is not easily available or where people are not much aware of the
whole process giving just 20 days will not at all be meaningful, it will just result in
lack of transparency.
 
Secondly, as per the 2020 EIA Notification, the general public does not
have the authority to report violations and non-compliance, the reports from
the violator, the authority of the government, Appraisal Committee, or
Regulatory authority will only be considered by the Government, so if a
project violates environmental law, then the public has no right to point out
that violation, this violation can be revealed by the violator himself or the
government officials, this is complete malarkey, they are expecting that if
someone has committed theft then the thief himself can say that he has
committed the theft no other person can point that out. 
 
Even the Supreme Court in the case of Lafarge Umiam Mining Private
Limited vs Union of India held that public consultation was a mandatory
requirement of the environmental clearance process for an effective forum
for a person aggrieved by any aspect of any project to register and seek
redress of their grievances. 1

In the Samarth Trust Case, the Delhi High Court highlighted the importance
of public hearings, stating 
"A public hearing is a form of participatory justice giving a voice to the
voiceless and a place and occasion for them to express their views about a
project. Such a public hearing allows the people to raise issues about the
social impact and the health impact of a proposed project." 2

In Adivasi Majdoor Kisan Ekta Sangthan vs Ministry of Environment and

Forests, the Supreme Court declared faulty public hearings to be a nullity in
the eyes of law. 3

1
Lafarge Umiam Mining (P) Ltd. v. Union of India, (2011) 7 SCC 338
(India)

2
Samarth Trust v. Union of India Ministry of Environment and Forests,
2010 SCC OnLine Del 2127(India)
3
Adivasi Majdoor Kisan Ekta Sangthan v. Ministry of Environment and
Forests, 2012 SCC OnLine NGT 51(India)
Therefore, it is unjust to remove the public's right to report such violations.
 
 
Regularization

In EIA Notification 2020 violation of EC is now regularized by charging

late fees, this may result in a delay in the information to the authorities and
the public and even the project owner may misuse this by violating the
provisions and harming the environment, and then getting escaped by just
paying some amount of late fees and fine.
 
 
 
Conclusion
 
Currently, we are experiencing the repercussions of harming the
environment in various ways, such as global warming. Therefore, it is
crucial to protect it from being damaged and to enact new and more
stringent regulations. Yet, the EIA Notification 2020 draft, rather than
making environmental protections more stringent, has loosened restrictions.
As a result, there may be a multitude of loopholes in the system, which
could be exploited to exploit natural resources. We cannot give preference
to development over the environment after seeing the ramifications of it.
Therefore, after seeing so many problems with it, it should not be accepted
or implemented at all. Instead, the government should create more
appropriate rules and regulations for environmental protection before it is
too late.