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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

EIA DRAFT NOTIFICATION 2020: WATERING DOWN OF ENVIRONMENTAL PROTECTION

Shinjinee Namhata

INTRODUCTION

The environmental impact assessment (EIA) process is an interdisciplinary and multistep method to ensure that environmental matters and issues are included in decisions regarding various projects and envisages that may impact the environment. EIA is an environmental decision support tool, which provides information on the likely impacts of development projects to those to take the decision as to whether the project should be approved or not. The purpose of an EIA is to determine the probable environmental, social, and health related consequences of a proposed development or project, so that the decision-makers of the project are informed about the possible magnitudes and outcomes of their decisions before the approval.

 

ENVIRONMENTAL IMPACT ASSESMENT (EIA)

The National Environmental Policy Act (NEPA), 1969 implemented by the USA defines  EIA as ‘a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man’s environment.’ It can also be defined as the systematic identification and evaluation of the potential impacts of proposed projects, plans, programmes, or legislative actions relative to the physical, chemical, biological, cultural, and socio-economic components of the total environment.

EIA is a managerial policymaking tool that logically and scientifically analyses both the benefits and ill-effects of the project. EIA is very beneficial in the sense that it potentially screens out environmentally unsound projects, proposes modified designs to reduce environmental impacts, identifies feasible alternatives and also influences decision-making process.

 

EIA UNDER INDIAN LEGISLATIONS

EIA in India dates back to 1977-78 with evaluation of river valley projects which was later extended to mining industries, thermal power, port and harbours, atomic power, railways and road highways, bridges, communications, etc. The Ministry of Environment & Forests (MoEF)issued a Notification on January 1994 on EIA of Developmental Projects. This Notification listed 30 projects that required environmental allowance from the Central Government. The notification made it mandatory to prepare and submit an EIA and a project report to MoEF which had the option to consult a multidisciplinary committee of experts.

The Government of India sanctioned the Environment Protection Act on May 23, 1986. One of the many decisions taken was to legalize the environmental impact assessment (EIA). A notification was issued afterwards on 27th January 1994 complying to all legal procedures and then the Act was amended on 4th May 1994, 10th April 1997, and 27th January 2000 respectively making environmental impact assessment (EIA) statutory for 30 activities.  This is the principal piece of legislation governing EIA as mentioned before.

 

EIA NOTIFICATIONS

The first EIA notification in India came into existence in the year 1994 which had undergone a total of six amendments till 2005 due to having several flaws in it. There were a lot of drawbacks under this notification even after that many amendments; so, the government came up with another notification in 2006. This was the major and most prominent EIA legislation in India as it prominently divided different projects into categories and provided for separate rules for each. The process of scoping was greatly strengthened through this notification. The 2006 notification is been amended 43 times in these 14 years

Earlier this year on March 12, 2020, the Ministry of Environment, Forest (MoEF) and Climate Change (CC) released Draft EIA Notification 2020 to replace EIA Notification of 2006. It was published in the official gazette on April 11, 2020. The new notification is brought in order to bring transparency and make the process more convenient and practical with better delegation, rationalisation, and standardisation of the process. However, lots of criticisms have been coming in regarding the EIA Draft Notification 2020. The Draft Environment Impact Assessment (EIA) notification 2020 has blown into a big debate and arguments as various environmental groups across the country have disagreed with it and sent numerous emails to the Union environment minister, Prakash Javadekar, requesting to annul and revoke the draft legislation.

ENVIRONMENT IMPACT ASSESMENT (EIA) DRAFT NOTIFICATION, 2020: OVERVIEW

The new draft Environment Impact Assessment (EIA) 2020 proposed by the Union government is a reverting departure from the 2006 notification that it seeks to replace. It is an attempt to subside environmental regulation and silence affected communities.

Some of the important highlights and provisions of the EIA Draft Notification 2020 are as follow-

·         COMPREHENSIVE LISTS OF DEFINITIONS

The draft EIA Notification 2020 has clarified definitions. Clause 3 of EIA Notification, 2020 consists a total of 60 definitions whereas no definitions are present in the EIA Notification 2006. It gives us a clearer idea and concept about various environmental terms such as, Accredited Environment Impact Assessment Consultant Organization (ACO), Baseline Data, capital dredging, coastal regulatory zone, critically polluted area, eco-sensitive areas etc.

·         PROJECT CATEGORIZATION

The Draft notification of 2020 clearly defines the types of projects which are categorized as Category A, Category B1 and Category B2. According to EIA Notification 2020 Category A projects require prior EC from the ministry and include the expansion and modernisation of existing projects. Category B1 projects require prior-EC from the State Level Environment Impact Assessment Authority (SEIAA) or Union Territory Level Environment Impact Assessment Authority (UTEIAA) and include the expansion and modernisation of existing projects. Category B2 projects are of 2 types- Projects required to be placed before the Appraisal Committee, these require prior EC from the SEIAA or UTEIAA; Projects that do not require to be placed before Appraisal Committee, these require prior EP from the SEIAA or UTEIAA. 

·         TECHNICAL EXPERT COMMITTEE

EIA Draft 2020 provides for the presence of a technical expert committee which is not present in the EIA Notification of 2006. Clause 9 of the draft states that a Technical Expert Committee shall be constituted by the Central Government under sub-section (3) of Section 3 of the Environment (Protection) Act, 1986. It will undertake categorization or re-categorization of projects on scientific principles including any streamlining of procedures, other tasks assigned to the committee for the purpose this notification, by the Ministry from time to time.

·         ONLINE MODE OF APPLICATION

The current notification of 2006 does not support online mode for submission of applications whereas the draft EIA Notification, 2020 mentions in many places that project promoter may submit the form to the regulatory authority via online mode. It also provides that the regulatory authority may notify the Terms of Reference (ToR) for projects required to be placed before the Appraisal Committee via online method. This is an advanced provision introduced in the Draft notification.

·         PROJECT SITE LOCATION

According to the sub-clause 4 of clause 18, EIA Draft Notification 2020, if any project site location is shifted after conduct of public consultation or grant of prior EC, then the project will be deemed as a new proposal and will be evaluated as de-novo (which means starting from the beginning). However, if the Appraisal Committee be certain of that the shift is very minute and will have no impact in the EIA report, the regulatory authority can issue an amendment in prior EC.

·         PRIOR ENVIRONMENTAL APPROVALS

The EIA Draft 2020 provides for two types of environment approvals- prior environment clearance (prior-EC) which is defined under Clause 3, sub-clause 40 of EIA Draft 2020. The other one is prior environment permission (prior-EP) defined under clause 3, sub-clause 41 of EIA Draft 2020.

·         VALIDITY OF PRIOR ENVIRONMENTAL CLEARENCE (EC) OR PRIOR ENVIRONMENTAL PERMISSION (EP)

The validity of prior EC or EP has been divided into three different phases in the Draft Notification of 2020, whereas there was no such phases in that of 2006. The validity is also been increased for certain projects. Sub-clause 1 of clause 19 of the EIA Draft 2020 states that validity of EC or EP involves three phases, namely construction/installation phase, operational phase, and redundancy/closure/dismantling phase. The below chart shows the change in validity of various projects.

Name of Project

Validity as per EIA 2006 notification

Validity as Per EIA Draft 2020

Mining Projects

30 years

50 years

River Valley Projects

 

10 years

15 years

Irrigation and Nuclear Power Projects

5 years

15 years

Miscellaneous

5 years

10 years 

·        REDUCTION IN DEADLINE FOR ‘EC’ GRANTING

According to the 2006 notification, the final decision with respect to grant or rejection of EC or EP should be taken within 105 days of the submission of the final application and relevant documents. There is a reduction of 15 days in the EIA draft 2020, as it provides for 90 days to take the final decision. Clause 17 of the EIA Draft 2020 speaks about this aspect. This is a welcome step as it makes the process faster, thus enables the project proponent to begin with the project sooner.

 

MAIN CONCERNS REGARDING THE DRAFT EIA 2020

The draft EIA 2020 has been planned with the aim of making all the process and progressions more transparent and practical. Though the draft has introduced many welcoming provisions and improved some of the previous, it seeks for the removal of several activities from the purview of public consultation. The objective of the draft is to be environmentally friendly but instead it is pro-industry and anti-people.

Some of the downsides of the EIA Draft Notification 2020 are discussed as follows-

·         DILUTION OF PUBLIC CONSULTATION PROCESS

The Draft EIA 2020 has diluted the public consultation process to a large extent. Category B2 projects do not require public consultations at all. Public consultation is exempted in a wide range of areas like modernisation of irrigation projects, construction of buildings, bridges, national defence, and security projects etc. Projects like the construction of biomedical waste treatment facilities and common effluent treatment plants, along with the expansion and widening of state and national highways do not need to go through public consultations. It also cuts down 30 days of consultation to 20 days. Clause 14 of the EIA Draft 2020 clearly specifies what category of projects are exempted from public consultation. Public consultations play an indispensable role in making the process of the grant of EC transparent. Cutting down of this provision is undemocratic.

·         PROJECTS EXEMPTED FROM PRIOR-EC AND PRIOR-EP

Nearly 40 projects have been exempted from requiring prior- EC or prior- EP, even including projects like solar thermal power plants and manufacturing units for explosives. Once a project is said as ‘strategic’ by the central government those are exempted from prior-EC or EP. No information about the strategic projects can be placed in public domain. Many such projects have got a complete throughway, and this debilitates the EIA process. Clause 26 of the Draft EIA states those certain projects which do not require prior EC or EP.

·         REPORTING OF VIOLANCES

According to the EIA Draft 2020, violations can only be reported by government officials, representatives, and project proponents. Public do not have any right to any violence.

·         POST-FACTO CLEARANCE

Post Facto Environmental Clearance is conflicting to the well-settled concept of precautionary principle in environmental jurisprudence and it also oppose the idea of sustainable development. Allowing clearances for projects that have already been started without seeking prior clearance is an incredible thought. In several cases, the Supreme Court has given orders against granting of post-facto clearance. Still, the Draft EIA 2020 speaks for this provision. For instance, if a certain project is not environment-friendly and causes severe pollution to the environment, and later it is given clearance in spite of its polluting nature. This is nothing but a harm to the environment and is in violation of environment laws and principles.

 

In the name of transparency and being environment-friendly, the EIA Draft 2020 is much industry-friendly and anti-people. It has more flaws than virtues. Even though it is a national legislation, it is published only in 2 languages English and Hindi and not in any other regional languages. This clears that it is done only to exempt the local communities from public participation. The EIA draft 2020 needs re-drafting.  

 

CONCLUSION

It is a part of our fundamental right under Article 21 of the constitution to be a part of the democratic decision-making process. The authorities must have ensured economic progress of the country as well as ensure that the environment is kept under serious check. Complying with this draft would mean being an partner to the demolition of the environment. It is evident from the incidents like the VIZAK gas leak, blow out and fire at Assam etc how much important EIA is. So, the need of the hour is only to ensure that the EIA process is made more transparent and competent.

 

References:

1.      EIA Draft Notification 2020

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

2.      EIA Notification 2006

http://www.environmentwb.gov.in/pdf/EIA%20Notification,%202006.pdf

3.      https://www.downtoearth.org.in/blog/environment/why-draft-eia-2020-needs-a-revaluation-72148

4.      https://www.livelaw.in/columns/eia-draft-notification-2020-of-licensing-the-damage-and-silencing-the-voices-161161

5.      https://www.livelaw.in/environment/green-activists-demand-withdrawal-of-proposed-eia-notification-2020-158945

6.      The Environment Protection Act 1986

https://www.indiacode.nic.in/bitstream/123456789/4316/1/ep_act_1986.pdf

Image Credits https://images.app.goo.gl/sdLBWsoZV2j1qL7h9

 

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