Draft Environmental Impact Assessment, 2020 – What’s in the Store?

Development is an inalienable aspect for any nation. But, any progress at the cost of the environment is most likely to hit back at the people for whose benefit the development was brought about.

Draft Environmental Impact Assessment, 2020 – What’s in the Store?

  Baliyan's Insight

India’s aspiration to attract investments and to pace with its global competitors has driven its legislators to fine-tune its existing laws. In this pursuit, many legislations underwent a sea change in the recent past. Added to this list is the Draft Environmental Impact Assessment 2020 [hereinafter referred as EIA 2020]. Development and ease of doing business are quoted as a prime reason for bringing in the Draft EIA. But, what’s in the store? Let’s Analyse in detail.

Environmental Impact Assessment norms were notified under Environment (Protection) Act, in the year 1994. It crafted a legal framework for regulating Industrial and Infrastructural activities which utilise the natural resource. EIA is the process which foresees the effect of proposed developmental activities impact on Environment. EIA keeps a check on the on-going and as well as new projects. Environmental Impact Assessment is mandatory. Every developmental project will have to undergo the EIA process before its commencement.

The Draft EIA 2020 has made a significant departure from its erstwhile regime. The Draft EIA 2020 camouflaged to be an environmental regulation primarily addresses the developmental concerns. Environmental concerns are diminished and have taken a back seat. By the draft EIA 2020, the Government has adopted hands-off approach on its environmental responsibility. It has loosened the regulations and has narrowed the public participation. The provisions of the draft EIA 2020 are antithetical to the idea of protection and preservation of the environment. The draft provisions invalidate the order passed by the Supreme Court, which has become the law of the land. Addressing the issues of Climate Change, the Government ought to have come up with strict rules and regulations and modes of monitoring the developmental and infrastructural activities. However, the Government has done quite the opposite.

In the Environmental Impact Assessment, the proposed project is kept accessible for public consultation. The general public of the locality are offered an opportunity to put forth their views / objections, if any, against the proposed project. This procedure is sine qua non. By this every stakeholder is heard. This consultative process is considered to be the heart of the Assessment. It is only post this stage, the project is sent to the appraisal committee for their consent. However, by virtue of Clause 14.2 of the draft EIA 2020, public consultations are done away for projects involving irrigation, widening of national highways et cetra. By denying the public consultation, no object is sought to be achieved by the Government.

In addition, Clause 14.8 confers discretion to the authorities to scrap “Public hearings” if the “local situation” warrants it. The clause 14.8 is per se ambiguous. What the term “local situation” intends is not known. Contrarily, interpretation of the term “local situation” is very subjective. There is a likelihood where, the said clause will be taken aid to suit the needs of the project proponent and thereby sap the public hearing. By housing the above clauses in the draft EIA a situation is created where people can claim no stake in environment. It not only leaves the affected community voiceless, but grossly violate their fundamental rights as well. This apart the Draft EIA 2020 has reduced the period from 30 days to 20 days for placing objections by the General Public. This not only hastens the EIA Process but also puts its efficiency at peril. Clause 14.9 of the Draft EIA imposes a condition that the draft EIA Report will be made available only based on a written request. There is no rationale clothed within for incorporating the above clause. Clause 14.9 of the Draft EIA makes the Assessment to be a closed process and sans transparency.

Clause 5.7 of Draft EIA has granted exemptions to projects relating to national defence and security or involving strategic considerations from public consultation. No information relating to these projects will be placed in the public domain. The term ‘strategic companies’ is not defined in the notification and is prone to misuse. The term ‘strategic companies’ requires an authoritative clarification. No private players must be allowed to take shelter under Clause 5.7 in the name of national security. Otherwise, national security will become an easy way out.

The Clauses 22 and 23 of the Draft EIA deals with violation and non-compliances. As per the said provisions, in case of any violation in a project, it is either the project proponent suo moto or the Government Authority or the Appraisal Committee or the Regulatory Authority who can come forward and make an application in that regard. In other words, public have no locus to make a complaint against the violation, even if it is apparent and translucent. The aforesaid clause is obsolete in as much as it expects the violator himself to come forward and admit that there has been a violation. Whether prescription of such mandate would be efficacious? The above clause wants to keep the public ashore. This mode of operation is contrary to the doctrine of public trust and goes against the ethos of environmental jurisprudence.

Adding insult to the injury, the draft EIA 2020 sculpted a clause granting a ex post-facto environmental clearances to the industries. It is seen as the one of the major drawbacks. Under earlier regime, prior Environmental Clearances were mandatory. Non-adherence to this mandate was viewed very seriously. In Alembic Pharmaceuticals Limited V. Rohit Prajapati (Civil Appeal No. 1526 of 2016) dated April 1, 2020, the Apex Court ruled in categorical terms that ex post facto environmental clearances are in derogation of fundamental principles of environmental jurisprudence. Contrary to the finding of the Apex Court, the draft EIA 2020 provides for granting ex-post facto clearances. The grant of ex-post facto clearance is a mere ritual and rather an empty formality. There is a high probability that the assessment tilts in favour of the industry, as it has already commenced its operation. This provision has become premium to the illegality. It legalises the violation committed by the project proponent. Hence, the grant of ex-post facto clearances must be withdrawn.

The draft notification has recategorised several industries as B2 industries, where such industries are exempted from scrutiny by the appraisal committee. In some cases, obtaining Environmental Clearance or Public Consultations is exempted too. Such re-categorisation is in violation of Environment Protection Act, 1986. There are no adequate checks even if those industries involve in exploitation of its resources. Moreover, under the draft EIA, criminal implications are replaced with fines which are much lesser than the profits earned by violators by exploiting the resources.

The above discussions on the draft EIA are merely a water drop in an ocean. Many provisions are not only pro-industry but also actively compromises on environmental protection. This draft EIA provisions gives carte blanche to the corporates. It is completely one sided and suffers from serious infirmities while placing the business prospects on a higher pedestal. Development is an inalienable aspect for any nation. But, any progress at the cost of environment is most likely to hit back at the people for whose benefit the development was brought about. In this scenario, progress towards what and for whom are the pivotal question one must be ceased of. For, all greed the whole nature is too little.

Preethikaa Ravichandrabaabu and R.D.Ashok Kumar are advocates at Madras High Court.