The central government recently announced a new draft Environment Impact Assessment (EIA 2020) for public feedback, which has caused a lot of ire in India’s environmental circles.
Leading environmentalists have charged that the government’s new draft watered down the EIA standards.
In light of this, this post briefly describes the background, purpose, and methodology of the Environment Impact Assessment in India.
Read this article till the end to learn more about the Environment Impact Assessment process in India.
Environment Impact Assessment
Environment Impact Assessment as the name suggests is a study or assessment of the adverse impact of a given or proposed development project on the environment and natural surroundings.
This assessment is generally done before the actual commencement of the proposed project but can happen later as well in the form of a review or post-facto assessment.
EIA can also include social and health impact assessments of a given project.
According to the Ministry of Environment and Forests (now the Ministry of Environment, Forest and Climate Change, MoEFCC), India, the objective of EIA is to “foresee and address the potential environmental problems at an early stage of planning and design“.
A Brief History of the Environment Impact Assessment
Human beings in their quest for material development have always been unkind to nature. Starting with the industrial revolution, they have engaged in the wholesale destruction of natural resources.
As a result, the whole world is today grappling with its negative side in the form of climate change, depletion of the ozone layer, global warming, and now the deadly Covid-19 pandemic that brought the whole world to a standstill.
When some sense prevailed in the late 20th century, nations started paying heed to the idea of sustainable development that takes into account the needs and well-being of future generations as well.
Consequently, most development projects began going through a process of environment impact assessment which was stressed upon and cemented through various International conventions and treaties pertaining to the Environment.
Discussions around the Environment Impact Assessment started as early as the 1960s. The United States was the first to formalize the EIA process in 1969 through its National Environment Policy Act or NEPA.
By the 1970s, other English-speaking countries like Canada and Australia also joined the chorus and adopted EIA in some form or other. Columbia and the Philippines were the first in the developing world to incorporate EIA.
In the 1980s, the World Bank mandated EIA for major development projects. However, it was looked down upon with suspicion by many third-world countries. They perceived it to be a means of scuttling their growth and development.
Environment Impact Assessment in India
India is a signatory to many environment-related conventions and has also ratified some of them. It has also been quite vocal on Environmental issues in the International Arena.
However, it has been relatively slow in enacting good legislation to conserve the environment.
Most of its prominent laws concerning the environment were enacted after some prominent environmental hazards or disasters.
For instance, it enacted the Environment Protection Act 1986 in the aftermath of the infamous Bhopal Gas Tragedy that killed thousands in 1984.
And it took another ten years to come up with a formal Environment Impact Assessment Notification in 1994. Before that, EIA was based on Administrative discretion and that was obviously not very effective.
After 1994, the EIA and prior environmental clearance (PEC) became compulsory for many development projects.
It may be noted that the enabling act for the EIA notification is Rule 5(5)(a) of the Environment Protection Act 1986.
Further, through an amendment in 1997, the concept of public hearing and consultation in development projects impacting the environment was incorporated for the first time.
Through another major amendment in 2006, EIA, the government brought into existence state EIA Authorities (SEIAA) and State Level Expert Appraisal Committees (SEAC) in addition to the existing central one.
Development projects were also divided into various categories wherein some required clearance by the SEIAA and some by the Central EIA Authority.
As per these EIA notifications, the maximum validity periods for development projects that were given the go-ahead signal after EIA was 30 years for mining projects; 10 years for river valleys projects, and 5 years for any other projects.
It was a kind of review mechanism or can be said to be a sort of post-facto assessment.
The procedure of EIA in India
The Environment Impact Assessment process in India is centered around four stages namely, screening, scoping, public consultation, or hearing, and finally the appraisal.
Section 5 of the EIA 2006 provides that the “Expert Appraisal Committees (EACs) at the Central Government and SEACs (hereinafter referred to as the (EAC) and (SEAC) at the State or the Union territory level shall screen, scope, and appraise projects or activities in Category ‘A’ and Category ‘B’ respectively” and that these committees shall meet at least once every month. Also relevant is section 7 which talks about these processes in some detail.
Stage I: Screening
Screening basically means a preliminary survey and assessment. It is only meant for a project labeled as Category B in the EIA schedule.
S.7 provides that in the case of Category “B” projects or activities, this stage will entail the scrutiny of an application seeking prior environmental clearance made in Form 1 by the concerned State Level Expert Appraisal Committee (SEAC) to determine whether or not the project or activity requires further environmental studies for the preparation of an Environmental Impact Assessment (EIA) for its appraisal prior to the grant of environmental clearance, depending upon the nature and location specificity of the project.
Further, the projects requiring an Environmental Impact Assessment report have been termed as Category B1 projects in the EIA schedule.
The remaining projects that do not require an Environment Impact Assessment report have been termed as category B2 projects and generally include small-scale industries. They also don’t require any public consultation.
Stage II: Scoping
Scoping is a process undertaken by the concerned Expert Appraisal Committees (EAC) to determine a detailed and comprehensive Terms Of Reference (TOR) addressing all relevant environmental concerns for the preparation of an Environment Impact Assessment (EIA) Report in respect of the project or activity for which prior environmental clearance is sought.
The TOR once compiled has to be conveyed to the applicant within 60 days of the receipt of such a request by that applicant in a form called Form 1. Refer to the provisions for more detail. The applicant is the person or entity who owns the proposed project.
Kindly note, that at this stage PEC may be rejected by the regulatory authority on the requests of concerned EACs.
Regulatory authority as per S.2 of the EIA 2006 means the Central Government in the Ministry of Environment and Forests for matters falling under Category “A” in the Schedule and, at the State level, the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category “B” in the said Schedule.
Stage III: Public Consultations
For Category A and B1 projects (mentioned in the schedule of the EIA notification), public consultation is mandatory.
The clearance given by the EACs and the draft EIA report is to be placed in public. For wide publication, the concerned authorities can publish it in the media, newspapers, and other appropriate portals.
Public Consultation according to the EIA 2006 refers to the process by which the concerns of local affected persons and others who have a plausible stake in the environmental impacts of the project or activity are ascertained with a view to taking into account all the material concerns in the project or activity design as appropriate.
However, S.7(i)(III) enlists a lot of exceptions where no public consultation is required.
All responses received from the public are to be forwarded to the applicant, giving him sufficient time to make appropriate changes to the draft. Thereafter, the final EIA report is to be submitted to the regulatory authority.
Stage IV: Appraisal
This is the last and final stage before a project is given the go-ahead signal. Under the Appraisal stage, the proposed project is supposed to be minutely scrutinized by the concerned EACs on the basis of the final EIA report.
At this time, the applicant may also be invited for further clarification if need be. And then the concerned EAC (expert appraisal committee) will make final recommendations granting or rejecting the prior EC with reasons.
EIA provides that, “This appraisal shall be made by Expert Appraisal Committee or State Level Expert Appraisal Committee concerned in a transparent manner in a proceeding to which the applicant shall be invited for furnishing necessary clarifications in person or through an authorized representative.
At the conclusion of this proceeding, the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall make categorical recommendations to the regulatory authority concerned either for the grant of prior environmental clearance on stipulated terms and conditions, or rejection of the application for prior environmental clearance, together with reasons for the same”(S.7(i)(IV)(i) EIA 2006).
Contents of the EIA Report
The content of the EIA report is quite comprehensive, at least on paper. Among other things, it includes an introduction; project description; environmental description, anticipated impacts; alternate technologies; benefits; social impact assessment, possibilities and extent of air, water, and noise pollution; biological impact, land impact, socio-economic and health impact; and other risk assessments.
Loopholes in the previous EIAs
Though environmental activists are protesting against the new EIA draft 2020, past EIAs were not very robust either.
They were beset with many loopholes that underpinned the concept of EIA significantly if coupled with weak enforcement. We have discussed some of them below.
Long List of Exceptions
All EIA’s since 1994 have contained a long list of exceptions. The exempted projects don’t require any prior clearance or public consultation. For instance, under the EIA 2006, the exempted projects include-
- Irrigation Projects
- All projects or activities that are located within industrial estates or parks.
- Expansion of Roads and Highways
- Maintenance dredging
- Area Development and Townships
- All Category B2 projects and activities.
- All projects or activities concerning national defense and security or involving other strategic considerations are to be decided by the central government.
These exceptions cover almost all major development projects like Dams, etc that pose significant environmental hazards. Hence, the requirement of EIA for smaller projects makes little sense when big some projects are exempted.
This is not to say that the government should not undertake large-scale developmental projects but it should be in a sustainable manner without causing significant harm to nature and the environment.
Strategic Projects
As we discussed in the previous section, all projects or activities concerning national defense and security or involving other strategic considerations are also exempt from public consultations and prior clearance.
A strategic project tag is decided by the central government at its discretion. Nowhere the EIA says that the government will give any reason or seek the opinion of environmental experts before categorizing any project as strategic.
Also relevant to note here is that no prior clearance is required for activities or projects involving investment less than 50 crores and for items reserved for small-scale industries with investment less than 1 crores.
Deemed Approval
We discussed earlier that the second stage of EIA concerns scoping under which the concerned Expert Appraisal Committee prepares a detailed ToR (Terms of Reference).
This ToR is to be conveyed to the applicant within 60 days of receipt of form I. If the committee rejects the project at this stage, then the decision of rejection together with reasons for the same is to be also communicated to the applicant in writing within sixty days of the receipt of the application.
And if the authorities don’t convey this ToR or rejection notice to the applicant within the time framework of sixty days, it is considered a deemed approval in certain cases.
This is in contrast to many European nations where the concept of Deemed rejection is followed i.e if the applicant is not notified of the approval and rejection, it means deemed rejection. He can, however, appeal against such rejection.
But in India, many laws concerning environmental protection follow the concept of deemed approval or deemed consent.
For instance, section 25(7) of the Water Protection Act also talks about deemed consent in cases where the relevant authorities fail to take any decision within the statutory deadline.
The concept of deemed approval or deemed consent has been criticized by environmentalists as it rewards the potential polluter for the laxity of the government departments.
Lastly, the EIA does not bar companies from purchasing land even before the deemed approval stage. They, however, are prohibited from undertaking any construction work on the site.
In our next post, hopefully, we shall discuss some concerns and problem areas in the new Environment Impact Assessment draft 2020.