In the month of March 2020, the Ministry of Environment, Forest and Climate Change proposed the draft of Environment Impact Assessment (EIA) Notification 2020, and simultaneously called for suggestions by various sections of the society within the time frame of 60 days. Later, the Delhi High Court relaxed the time limit of public consultations till August 11, 2020.
The nation’s first EIA notification came in 2014 under the Environment (Protection) Act (EPA) 1986. This notification was then replaced in year 2006, and now came the new EIA Notification 2020 which is severely criticized by various environmentalists and activists who are constantly arguing in favor of abandoning this EIA 2020 as it degrades the basic principles of environmental protection.
Attributes of the EIA Notification 2020
· The 4-stage process has been replaced by the 6-stage process.
Under 2006 framework, the procedure involved 4 stages but the current notification has 6-stage process. The significant change strikes in as the stage involving “Screening” has been completely wiped out in this notification. The effect of such a move will be that now the projects under Category B will not undergo the additional scrutiny .
· Increase in the number of Categories of Projects
This new draft proposes 5 categories of projects, i.e., A, B1 (projects complying with the general conditions so mentioned in the Clause 3 of EIA), B1 (projects not complying with the general conditions as per Clause 3 of EIA), B2 (projects which are mandatorily to be placed before the Appraisal Committee), B2 (projects which need not be placed before the Appraisal Committee), while the 2006 notification named projects under 3 categories- A, B1 and B2.
· Myriad of definitions.
The EIA 2020 has in its pocket large number of definitions concerning each and every terminology used in the draft. This is a positive statement as this will lessen the burden of court by saving the timing wasted in interpretation of terms in legislation. This will result in effective and swift decision making process.
· Institution of Technical Expert Committee.
The Rule 9 of EIA 2020 mentions a Technical Expert Committee which “shall undertake categorization or re-categorization of projects on scientific principles including any streamlining of procedures and other tasks assigned to the committee for the purposes of this notification.” This approach of including academically qualified and equipped experts of the field is a logical step.
· Plead before National Green Tribunal (NGT).
The Rule 25 of EIA 2020 gives right to the project proponent to appeal before the NGT within 30 days from the date decision given by the regulatory authority . The introduction of this mechanism will help project proponents to get a second chance of to fight the case by approaching the appellate authority.
DEMERITS IN THE NEW EIA NOTIFICATION 2020
· Dismantling public participation.
The provisions mentioned in the EIA 2020 have threatened the basic policy of participation of public . The days to submit comments have been reduced to 20 from prior 30 days period of public consultation. Considering the fact that such a draft has a potential to affect the society, it is imperative that they should get enough time to respond to effectiveness of various developmental projects. This current provision is also in violation of the judgement given in Centre for Social Justice v. Union of India , where is was stated that at least 30 days should be given for public hearing ones a notification comes into existence. Also, Principle 10 of the Rio Declaration says that “States shall facilitate and encourage public awareness and participation by making information widely available” , highlights the importance of public consultation.
· Post-Facto Approvals is in contradiction to the tenets of law.
The Environmental Ministry in the year 2017, notified that the projects which are functioning without EC have an option to apply for environmental clearances . Now Rule 22 of the EIA 2020, explicitly states that Appraisal Committee will appraise the cases of violations. Further, Rule 22 (2) states that if the findings of the committee are positive then the project under this category will be prescribed with appropriate specific Terms of Reference on assessment of ecological damage, remediation plan and natural and community resource augmentation plan in addition to the standard ToR applicable to the project . This provision shows the sheer violation of the precautionary principle and also the sustainable developmental goals. The Supreme Court in Alembic Pharmaceuticals Limited v. Rohit Prajapati & Ors., strictly reprimands the retrospective approval in cases involving environmental clearances.
“The concept of an ex-post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA notification dated 27 January, 1994. It is detrimental to the environment and could lead to irreparable degradation. The reason why an ex post facto EC is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment.”
It has been reiterated time and again that ex post facto approval of projects will break the pedestal on which the basics of environmental laws stand. Tanmay Shinde, one of the environmentalists tweeted that “Environmental impact assessment is meant for environmental conservation. Industries & businesses proposed in a sensitive zone i.e forests, mangroves & other ecosystems till now had to go through EIA, but new policy proposes relaxing certain norms. #SaveEIA #EIAForGreenIndia.” Therefore, it is established that this EIA framework is contrary to law and should be struck down on the grounds of being unconstitutional.
· Exclusion of projects on unclear grounds.
According to Rule 5 (7) of EIA 2020, the government can tag a project “strategic” without any deliberation. Though the projects concerning national security and defence are said to be “strategic” but the government can term other projects “strategic” as well . And no information of such projects will be made available to the public in general. This is surely a cause of worry because this way government might misuse its power by giving clearance to projects that might be in contradiction to environmental protection principles .
· Exemption of projects from getting prior Environmental Clearance.
Rule 26 of EIA 2020, excludes 40 various types of projects from prior EC or an environmental permission (EP) . The criteria adopted for exemption is neither discussed nor disclosed. Even the solar projects, mining projects, research and development projects are exempted by overlooking the ideal institutional practices. And also this move might bring possible causes of conflicts in future. Moreover, this blatantly damages the Public Trust Doctrine, which was first introduced in the MC Mehta v. Kamal Nath  where the Supreme Court held that “the public trust is more like an order for the state to use the public property for public purposes”. It was observed that it is the onus of the state to preserve the environment: soil, water, wetlands, etc., because Public derives benefits out of it. Hence, it is important to note that passing any legislation which loosens the trust of the public in State is unwelcome and an inappropriate step.
After having done the exhaustive research, it is quite evident that this EIA Notification 2020 needs to rectify the flaws which it contains. It should work in progressive manner so as to get away with the provisions which stand in violation of law of land. Secondly, it feels that through this notification the government gets a central stage to decide upon certain projects “strategic” or not. This colossal power in the hands of government might prove to be detrimental and harmful. Article 21 clearly states that every individual has right of clean and healthy environment and so passing of such legislation without necessary changes will be against the spirit of this article. Also, the EIA 2020 requires to throw light on the new concepts introduced in this draft like, community resource augmentation plan, an Environment Permission, etc.
After stupendous journey of public awareness and judicial efficacy, it is imperative that such regressive step of government should be condemned. This draft needs to be thoroughly discussed in the public domain, and then considering the ill effects the current draft might cause, the government should make changes in it.
1. Ayush Verma, Critical Analysis of the draft EIA notification, 2020, iPleaders, July 22, 2020 (August 16, 2020, 11:23 AM) https://blog.ipleaders.in/critical-analysis-draft-eia-notification-2020/#_ednref3.
2. Rule 9 (2), Draft EIA Notification, 2020.
3. Rule 25, Draft EIA Notification, 2020.
4. Stellina Jolly, Draft EIA Notification 2020 Is Out of Sync With State Practices, International Law, The Wire, July 31, 2020 (August 16, 2020, 2:45 PM) https://thewire.in/environment/draft-environment-impact-assessment-notification-international-law.
5. Centre For Social Justice v. Union Of India (Uoi) And Ors., AIR 2001 Guj 71, (2000) 3 GLR 1997.
6. Principle 10, Rio Declaration on Environment and Development, 2020.
7. Sara Suresh, Explained: The Curious Case of India’s Draft EIA Notification 2020, The Quint, August 11, 2020 (August 15, 2020, 12:34 PM) https://www.thequint.com/explainers/explained-the-curious-case-of-india-draft-environment-impact-assessment-notification-2020
8. Rule 22 (2), Draft EIA Notification, 2020.
9. Alembic Pharmaceuticals Limited v. Rohit Prajapati & Ors., MANU/SC/0353/2020.
10. Rule 5(7), Draft EIA Notification, 2020.
11. Jay Mazoomdaar, Explained: Reading the draft Environment Impact Assessment norms, and finding the red flags, The Indian Express, August 10, 2020 (August 14, 2020, 3:23 PM) https://indianexpress.com/article/explained/draft-environment-impact-assessment-norms-explained-6482324/.
12. Rule 26, Draft EIA Notification, 2020.
13. M. C. Mehta v. Kamal Nath, (1997)1 SCC 388.