Sourabh Balwani, Content Writer, Nyayshastram
Introduction
The embattled world, which was already finding it difficult in grappling with inextricable climate change problem is now challenged with yet another unprecedented crisis transpiring in the form of a pandemic that has destroyed the wheels of economic activities leading to millions becoming unemployed, starving and finding hard to sustain themselves. This, because numerous nations, including India, have effectuated lockdowns in order to mitigate the proliferation of the threatening Covid-19. One stark and glaring manifestation that becomes evident with the handling of these crises is the unabashed precedence that the economic realm gets with complete banishment to the idea of protection of the environment. Many a time, it has been stated that the developing countries are disproportionally being burdened with dealing with the climate change crisis.[1] Rich and developed countries finding it expedient to stash away financial resources have started pulling out of the significant international covenants and agreements, including the Paris Climate Agreement.[2]
The spectre of the economy taking center stage and side-lining the environmental issues are easily discernible in the Indian ecological milieu as well. The past few decades have seen governmental policies drifting towards promoting industrial activities disregarding the concomitant adverse impact on the environment. However, the recently released Draft Environment Impact Assessment (EIA) Notification 2020[3], is a propulsive force that could drastically alter the environment setup in India leading to a profound impact on wildlife, biodiversity, and other natural resources. This has been released in the lockdown period, making it difficult for various stakeholders to scrutinise it and has the capacity of augmenting the number of industrial units as well as help India gain a higher position in ‘Ease of Doing Business’ rankings. This article critically analyses the said draft notification and underscores the importance of prioritising a ‘green’ economy framework.
What is the Draft EIA Notification, 2020?
Under the Environment (Protection) Act 1986, the Central Government is empowered to take measures to protect and improve the quality of the environment.[4] It is by exercising this wide range of powers; the government has released the draft EIA Notification which will supersede the erstwhile regulations of 2006. EIA, in simple words, could be defined as a framework to diagnose the impact of projects and proposed activities on the environment. The assessment also gives due importance to public participation in decision making, effectively raising the concerns of society who are impacted by such projects. In this way, the EIA gives a strong voice to the tribal community in India, which is traditionally as well as culturally situated in dense forest areas of the country.
The advent of this assessment was marked in India during the 1970s when it was introduced for a slew of river valley projects. The Rio Declaration on Environment and Development of 1992, in which India also participated, provided the necessary thrust to the process and led to the first concrete Indian code on EIA in 1994. The EIA Notification, 2006 then succeeded in the framework. The 2006 notification embodied in itself a comprehensive mechanism for obtaining environment clearances for setting up projects, expansion and modernisation of existing ones, among other things. The multifarious framework also laid down the delineation of projects to be dealt with by the Ministry at the central level, as well as by the State Expert Impact Assessment Authority at the state level.[5] The recent draft is an attempt to expedite the process of granting clearances as well as improving the industrial model of the Indian economy. However, the draft released has caused much furore among environmentalists, relevant stakeholders and experts for its complete rejection of the possible catastrophic environmental ramifications.
The Furore over the draft EIA Notification, 2020
The draft has attracted uproar over its timing of release as well as its various proposed provisions to dilute the existing environmental regulations. The draft was released by the Ministry when the entire country was in lockdown mode either partially or entirely to tackle the spread of the virus. The issue was vociferously raised due to its capability to circumvent the public deliberation, where the relevant stakeholders would not have been able to make representations and express their reservations to the envisaged provisions. After continuous bruhaha, the Ministry ceded to the demand of increasing the time for submitting objections to the draft Notification beyond the earlier fixed 60 days. The objections or suggestions to the draft could now be submitted to the Secretary, MoEFCC till the date of 30th June 2020.[6]
However, the charge that the draft attempts to dilute specific environmental regulations still looms large, imperilling the existence of rich flora and fauna that such directions could undo. It is thus necessary to decode the relevant provisions of the Draft EIA Notification, 2020.
(i) Curtailing Public Consultation Process: One of the flagrant changes proposed to be made in the draft notification is curtailing the time period for the public to put forward their legitimate views and responses relating to an application seeking environmental clearance. The time is proposed to be reduced to 20 days from the present 30 days.[7] The proposed change has the potentiality of defeating the entire purpose of the EIA process since its bedrock depends upon the participation of people based on which it assesses the impact of such projects.
(ii) Legitimising Post-Facto Approval: The fundamental change that this draft proposes is to introduce post-facto approvals for the projects. This means that the projects which have already started with the construction or are operating without obtaining environment clearances could be awarded the clearance even later on.[8] Thus, the violations caused could be legitimised by paying some penalty amount, disregarding the damage which would have been already inflicted on the environment of the vicinity of that project.
(iii) Introduction of ‘Strategic’ Projects: The notification also grants central government carte blanche to mark a project as ‘strategic’. The crux of the contention lies to the fact that the information of these strategic projects is exempted from being placed in the public domain.[9] This will squeeze the process of bringing to light the violations caused by such projects, subsequently causing expansive environmental harm. Regulations are further relaxed exempting many projects from ‘detailed scrutiny’ done by the Expert Committee.
(iv) Self-compliance Reports: The existing framework provides the project proponents to submit a report known as compliance reports underscoring that the required rules are being adhered to during their operations. The activities carried out should comply with the standards based on which they were granted clearances earlier. The report had to be submitted every six months. Nevertheless, the draft provides laxity to the project proponents to submit such a report on an annual basis, nullifying the existing six months procedure. This provision could pave for evasion of certain irreversible environmental impairment.
(v) Exemption from Prior Environmental Clearance: Many projects are also exempted from taking any prior permission or clearance to start the operations. These include solar photovoltaic power projects, solar thermal power projects, Coal and non-coal mineral prospecting among many others.[10]
The draft also proposes to extend the validity of environment clearance given for mining projects from 30 years to 50 years. Such sweeping changes have the formidable potential to demolish the vibrant ecological ambience completely. As a result of this, emphatic voices are being raised in order to see the draft notification rolled back by the government.
The Way Forward
The recent attempt to dilute specific environmental regulations coupled with the relaxation of labour laws by some Indian states reflect desperate efforts by the governments to kickstart the economic growth which is already subdued due to the lockdown imposed. The faltering growth entailing in many losing their jobs establishes a need to have an effective framework to restart the economic activities and that too, with more vigour. However, such growth cannot be achieved at the expense of annihilating the environmental foundations of the country. India needs to obliterate the red tape procedures that take more than the required number of days to establish industries in the country. Though, without conducting a detailed impact study of such projects on environment and laying pathway for bypassing the critical public participation, such projects sound a death knell to the symbiosis of the organisms in the environment, including humans.
Thus, it gains pertinence to adopt the green economy model of growth, which exalts the environmental issues to its due deference and also promotes sustainable growth. It is only then the fundamental right to life and a healthy environment construed under Article 21 of the Indian Constitution could be wielded by the people in the real sense. The green economy model also entails a scenario where people are well aware of their environmental rights, such as the one of public participation in EIA. The recent issue where an innocent pregnant elephant was killed in Palakkad district of Kerala after she was fed with pineapple filled with crackers, shook our conscience and evoked grief from many who raised the concerns of such barbaric transgressions. Nevertheless, how many of us raised our concerns when the draft EIA Notification, 2020 was designed to sabotage the complete environmental framework of the nation. It is high time we deliberate upon this and take a firm stand against every effort to destroy the environment.
[1] U.N. General Assembly, Meeting Coverage and Press Releases, Unprecedented Impacts of Climate Change Disproportionately Burdening Developing Countries, Delegate Stresses, as Second Committee Concludes General Debate, U.N. Document GA/EF/3516 (08/10/2019) available at https://www.un.org/press/en/2019/gaef3516.doc.htm, last seen on 04/06/2020.
[2] US notifies UN of Paris climate deal pullout, BBC News, available at https://www.bbc.com/news/world-us-canada-40829987 last seen on 04/06/2020.
[3] Ministry of Environment, Forest and Climate Change, Draft Environment Impact Assessment Notification, 2020 vide S.O. 1199(E) dated 23/03/2020 in the Official Gazette on 11/04/2020, available at http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf, last seen on 05/06/2020.
[4] S. 3, The Environment (Protection) Act, 1986.
[5] Parul Gupta, The Draft EIA Notification 2020 Is A Desperate Attempt To Dilute The Existing Environmental EIA Regulations, LiveLaw.in, available on https://www.livelaw.in/columns/the-draft-eia-notification-2020-is-a-desperate-attempt-to-dilute-the-existing-environmental-eia-regulations-156478, last seen on 05/06/2020. [6] Ministry of Environment, Forest and Climate Change, Environment Impact Assessment Notification (EIA),2020 extended till 30th June S.O. 1429(E)-Date-[08-04-2020], available at http://moef.gov.in/wp-content/uploads/2020/05/EIA-2020_extn-of-period.pdf, last seen on 05/06/2020. [7] Undemocratic Evasion of Environmental Responsibility, 55 Economic & Political Weekly (2020), available at https://117.232.123.74:2172/journal/2020/18/editorials/undemocratic-evasion-environmental-responsibility.html, last seen on 05/06/2020.
[8] Supra 3, at 29. [9] Supra 7. [10] Deepak Kumar Thakur and Gopi Anekar, Draft EIA Notification 2020 And Its Potential Impact, LiveLaw.in, available at https://www.livelaw.in/columns/draft-eia-notification-2020-and-its-potential-impact-157078, last seen on 05/06/2020.