India’s New Environment Policy: A Libertarian’s Dream but A Nightmare for The Environment

Author: Shawaiz Nisar

3rd Year B.A. LL.B (Hons.)
Rajiv Gandhi National Law University, Punjab

1. INTRODUCTION

The Environmental Impact Assessment (EIA) is a process of predicting the impact of the industrial or infrastructural activity on the nearby environment. This process ensures that only those projects/activities are undertaken which either do not impact the environment at all or have a relatively less impact on it. In case, the adverse impact is high, the projects do not get the approval from the concerned authorities, thereby protecting and preserving the environment.

Currently, the Environmental Impact Assessment Rules 2006, are in operation in India, which the union government seeks to replace with the new Draft Environment Impact Assessment Rules 2020. The purpose of introducing the reforms is to increase the ease of doing business as the earlier rules were considered to be strict. The draft was open to public comments till August 11, 2020. Some of the rules laid down in the new draft have received severe criticism and the draft is being termed as an attempt to weaken environmental regulation and silence affected communities. Some researchers even went on to consider the draft as the suppression of democracy.[1]

2. CRITICAL ANALYSIS

Some of the rules which drew criticism from the environmental activists are as follows: –

1. Post Facto Clearance

Under the new draft provisions, the projects/activities which have come up without getting environmental clearance can continue their operation without such clearance.[2] The projects which have already impacted the people and environment severely can get clearance under the new provisions. This is seen to be disastrous as people are still bearing the repercussions of earlier industrial disasters, for instance, the recent gas leak in LG Polymer Plant in Visakhapatnam, which operated without EIA clearance. The ‘Post Facto Clearance’ violates the fundamental principles of environmental jurisprudence and ‘Precautionary Principle’ relating to environmental sustainability. The Apex Court of India has already declared Post Facto approval as contrary to Law and basic principles of environmental jurisprudence.[3]

2. Exemption of Certain Projects

The new draft exempts numerous projects from the purview of EIA [Clause 26]. For instance, the draft says that any project which the central government labels as ‘strategic’ cannot be mandated to go for an EIA process. Secondly, no information regarding such projects can be placed in the public domain, which means the government can label any project as strategic and people would not be given any reason for such labelling. The draft additionally exempts all the inland waterways, national highway projects, and construction projects up to 150,000 square meters from EIA [Schedule]. Earlier, the building construction projects of 20,000 sq. m or above were mandated for environment clearance.[4] These exemptions, if operated, can be disastrous for the environment as well as for the people, because of their tendencies to contribute to various kinds of pollution and destruction of biodiversity.

3. Impact on Local Communities

Concerning this, the activists say that the draft provisions take away the power of local communities as it reduces the scope for public participation, which is very crucial in the EIA process. The local communities have been very helpful in protecting the environment by reporting violations and actively preserving the resources. Since the new draft-only allows the government representative or the project proponent to report violations [Clause 22(1)], the local communities have no role to play.

4. Reporting of Violations

Another problematic issue with the draft provisions is that the violations can only be reported by a government representative or the project proponent and not the citizens [Clause 22(1)], who earlier were allowed to report on such violations. This provision will result in less reporting of the violations as no project proponent will report his violations.

5. Time for Public Response

The EIA process consists of a public hearing where the people are apprised of the project. For instance, the project activity, the number of wastes that will be released, waste management strategies, etc. Subsequently, people are given a period of 30 days for their response. Now, the new draft limits the period of such public response to 20 days [Appendix-I]. It would be difficult for local communities to submit their responses within 20 days, considering the complexities in understanding the EIA, difficulty in reaching a consensus about the final opinion, and the legal awareness of the communities. This will result in less meaningful responses as people would not get enough time to frame a proper opinion. This in turn may lead to lack of transparency and credibility.

6. Modes of Public Hearing

The 2006 notification requires the public hearing to take place at a specific place chaired by the District Collector or his/her nominee. The new draft provides the hearing to be carried out in ‘any other mode’ also [Clause 14(1)(c)]. This seems fair but it is not, considering the availability of facilities to common people required for taking part in the virtual process, ultimately resulting in less participation of people in the process.

7. Compliance Report Issue

Earlier the project proponent was required to submit a report half-yearly, showing that their activities are following the terms on which permission has been given. The new draft requires the report to be submitted only once in a year [Clause 20(4)]. Such an extension may result in unnoticeable irreparable loss to the health, environment, etc. which can occur in the meantime.

8. Definition of ‘Border Area’

According to the new draft, the extraction, sourcing or borrowing of ordinary Earth for linear projects such as roads and pipelines in ‘border areas’ will not require any public hearing [Clause 26(6)]. The draft defines ‘border area’ as the “area falling within 100 kilometers aerial distance from the Line of Actual Control with bordering countries of India.” Therefore, according to this definition much of the North-East which is the repository of the country’s rich biodiversity, will be covered under the border area, thus making it susceptible to unprecedented commercial exploitation.

9. Compensation Clause

The new draft states that the project owners need to pay compensation in case they pollute the environment but are allowed to continue their operations [Clause 22]. This means that there is no redress available if the environmental loss is irreparable since money cannot retrieve such damage. Currently, the grave environmental crimes are punishable with rigorous imprisonment while the new draft-only seeks to fill up government coffers.

3. DRAFT EIA 2020 AND INTERNATIONAL COMMITMENTS

The draft EIA 2020 is a clear deviation from the parent Environment Protection Act, 1983 which aims to advance decisions taken at the Stockholm Conference, 1972 for the protection and improvement of the environment. Further, the draft is in contravention with the International commitments related to the environment protection of which India is a signatory. For instance, Agenda 21 of the Rio Declaration 1992 for adopting the sustainable development approach.[5]

4. WAY FORWARD

The Draft EIA 2020 has the potential to remove some ambiguities present in the current rules and also consolidate the EIA rules. The government has proposed some changes in the existing rules to boost ‘ease of doing business’ but it has failed to address the major hindrances in achieving that goal. For instance, the government should minimize the average delay of 238 days in granting environmental approval, which is mainly contributed by bureaucratic delays and complexity of laws.[6]

The draft needs to address the issues stated above. It needs to increase the time for public response, and make more people aware of the EIA process. The draft seems to have a “grow now, sustain later” policy, which is detrimental to both the environment as well as humans. Our development (ease of doing business) means nothing if we can’t sustain our coming generations. Therefore, the government needs to opt for sustainable development by increasing the standards of environmental clearance and not reducing it. And at the same time address the real problems which fail laws and policies like corruption and bureaucratic delays.

 

References:

[1] Abhijit Mohanty, Why draft EIA 2020 needs a revaluation, Down To Earth (Jul 06, 2020) ,https://www.downtoearth.org.in/blog/environment/why-draft-eia-2020-needs-a-revaluation-72148.

[2] Draft Environment Impact Assessment Notification 2020, MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE,

http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf.

[3] Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors. 2020 SCC OnLine SC 347

[4] Environment Impact Assessment Rules 2006. http://www.environmentwb.gov.in/pdf/EIA%2520Notification,%25202006.pdf.

[5]  Rio Declaration 1992, Agenda 21,

https://www.un.org/documents/ga/conf151/aconf15126-4.htm..

[6] Report of the Comptroller and Auditor General of India on the Environmental Clearance and Post Clearance Monitoring,

https://cag.gov.in/sites/default/files/audit_report_files/Union_Government_Report_39_of_2016_PA.pdf.

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