Environmental Impact Assessment (EIA) is the study or the evaluation which predicts the impact of a proposed developmental project or activity on the environment. If the upcoming project has severe consequences or the project is not feasible then EIA prevents that project from being approved.
It is a process whereby people’s views are taken into consideration before granting final approval to any developmental project or activity. It is a decision-making tool to decide whether the project should be approved or not.
The draft notification is issued under the powers of the Central Government under the Environment (Protection) Act 1986 to take all measures for “protecting and improving the quality of the environment”.
The EIA process is an outcome of the 1992 Rio Declaration, which says that environmental issues are best handled through the participation of all concerned citizens and that states must provide an opportunity to citizens to participate in decision-making processes.
PROBLEMS WITH THE EIA DRAFT OF 2020
In the month of March 2020, the Ministry of Environment, Forest and Climate Change (MoEFCC) in exercise of its powers conferred under Environment (Protection) Act, 1986 published the Draft EIA Notification 2020 inviting suggestions from the public. This Notification seeks to replace the 2006 EIA Notification and the subsequent amendments.
- Prior to 1994, getting an environmental clearance was purely an administrative decision with no legislative interference. Previously, the Ministry of Environment and Forests mandated an EIA for setting up of new projects or activity.
- The principles for undertaking the EIA were a result of The Rio Declaration, for activities which would have a negative impact on the environment. Including the effective public in the regulatory and decisive process is laid down in Principle 10 of the declaration.
- Further, India is bound by The Paris Agreement and The Copenhagen Accord to reduce emissions, making it essential to frame domestic laws which fulfil the international obligations. However, various elements of the new draft notification are problematic as it degrades the environmental jurisprudence, pushing regressive environmental policy and aims to provide fast-track clearance to industries and the procedure thereof is relaxing.
- The 2020 draft allows for post-facto environment clearance (EC) which means that EC can be given to projects even after they have started construction before securing EC.
- Post facto approval is the derogation of the fundamental principles of environmental jurisprudence and violation of the “precautionary principle,” which is a principle of environmental sustainability.
- In a landmark case of Vellore Citizens Welfare Forum V. Union of India, the precautionary principle was recognized as customary international law. This practice was also declared invalid in Common Cause v. Union of India.
- The Supreme Court in Association for Environment Protection v State of Kerala had held that commencement of projects without obtaining prior EC is a violation of the fundamental right to life under Article 21.
- Such a practice has also been discouraged by the apex Court in Alembic Pharmaceuticals v. Rohit Prajapati and gives rise to a situation of fait accompli causing irreversible damage to the environment.
- In 2017, post-facto clearance given to projects in Tamil Nadu was struck down by the Madras high court.
This also means that any environmental damage caused by the project is likely to be waived off as the violations get legitimised. The only remedy available would be to impose a fine or punishment; but that would not reverse the detrimental consequences on the environment.
The draft notification’s deadline for the public consultation process has been reduced (30 days to 20 days) for the public to submit their responses during a public hearing for any application seeking environmental clearance. The time period for conducting the public hearing has been reduced from 45 days to 40 days.
The danger is that if adequate time is not given for the preparation of views, comments and suggestions to those who would be affected by the project, then such public hearings would not be meaningful. Moreover, while the process of public hearings social distancing norms must be followed which will delay the process and there are chances that people will not actively participate in the hearings because of the COVID -19 pandemic. Unless a public hearing is meaningful, the whole EIA process would lack transparency and credibility.
Further, the reduction of time would particularly pose a problem in those areas where information is not easily accessible or areas in which people are not that well aware of the process itself.
Apart from this there is a compliance report issue as the 2006 notification required that the project proponent must submit a report in 6 months, showing that all the activities are done as per the terms on which the permission was granted. But in 2020’s draft, the proponent is required to submit the report only once a year. During this period certain irreversible environmental, health or social consequences of the project may go unnoticed.
Bypassing the EIA Process
Through the draft notification, the central government gets the power to categorise projects as “strategic.”
Once a project is considered as strategic, the draft notification states that no information related to such projects shall be placed in the public domain.
Any violations can only be reported suo-motu by the project proponent, or by a government authority, appraisal committee, or regulatory authority. This is against the principles of natural justice.
Further, the draft notification states that the new construction projects up to 1,50,000 square metres (instead of the existing 20,000 square metres) do not need “detailed scrutiny” by the Expert Committee, nor do they need EIA studies and public consultation
EIA is defined by the UNEP as a tool used to identify the environmental, social and economic impacts of a project prior to decision-making. It involves public opinion regarding likely environmental impacts of a proposed project with an aim to reduce adverse impacts. The Delhi High Court in Samarth Trust case had considered EIAs “a part of participatory justice in which the voice is given to the voiceless and it is like a jan sunwai, where the community is the jury.”
The government needs to promote and protect the right to life and a healthy environment as mentioned in the Article 21.
The government needs to bring down the delays in granting environmental clearance in order to improve India’s position in the ease of doing business rankings. Covid-19 has given us all a wakeup call to mend our relationship with the Earth; therefore, it’s time to make environmental laws stricter. The need for stricter and efficient environmental laws has become imperative in the present age of climate change.
Administrations, on a domestic and a global level need to formulate policies that reduce their carbon footprint and the per capita emissions of greenhouse gases. The first step in making this change towards a sustainable future is to regulate and monitor the activities of the industries that contribute the majority share towards polluting the environment, which means that firm environmental clearances and legislations need to be enforced. The EIA is such a draft that aims to assess the impact of such projects on the environment.
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