In March 2020, the Government of India published a draft Environment Impact Assessment (EIA draft 2020) for public comment. The deadline for submission of public feedback was initially set as July 29, 2021, but extended twice by courts, first by the Delhi High Court and then the Karnataka HC.
Indian environmentalists raised various concerns over the draft EIA 2020 notification. They accused the central government of diluting the environment impact assessment process by creating various loopholes in the draft, reserving wide discretion to categorize strategic projects to bypass EIA requirements, and diluting major environmental law norms like the precautionary and polluter pays principles, etc.
Though loopholes they have pointed out in the new EIA draft are quite similar to those present in previous EIAs, the present one not only expands them significantly but also relaxes various compliance norms. For these reasons, many have even demanded the withdrawal of the new EIA draft.
Concern I: Wide Discretion to define Strategic Projects
Absolute power corrupts absolutely is a maxim we often hear in administrative or political discussions.
It is a fundamental principle of administrative law that vesting of too much power discretion in any authority has the potential of abuse of that discretionary power. Too much discretionary power also compromises on the due process requirement.
The new EIA draft vests vast discretionary power in government authorities to define strategic projects. Once a project gets labeled strategic, it becomes exempt from prior environment clearance and public consultation.
Sections 5 and 14 of the draft EIA 2020 provide that, “all projects concerning national defense and security or involving other strategic considerations” shall be exempt from public consultation” and that, “no information relating to such projects shall be placed in the public domain” and that.
If this power is abused by authorities concerned, this can open floodgates for summary clearance of large development projects as strategic which may prove catastrophic for the environment.
Concern II: A Long List of Exemptions
Previous EIAs already contained a long list of exemptions that did not require any impact assessment.
The new EIA expands the exemption list a bit further. Many renowned ecologists have voiced concerns over the “potentially debilitating effect on the frail ecosystem of the places that these highways and waterways cut through”.
In addition to the strategic projects that are already an open-ended list, the draft EIA also excludes many other development projects from the purview of public consultations and impact assessment.
Projects like the modernization of irrigation projects, expansion of national highways and inland waterways, projects falling under various items of the schedule located within notified industrial estates, certain projects in border areas, and all off-shore projects located beyond the 12 nautical miles that were listed in the previous EIAs have been retained in the new draft also.
According to TV Ramachandra of the Indian Institute of Science, “we are heading towards a catastrophe by diluting the EIA”.
Concern III: Post-Facto Clearance Process
It is worth noting that the preamble of the draft EIA 2020 commits itself to strengthening the Prior Environment Clearance process (PEC) and also cites a Supreme Court judgment in favor of the PEC.
However, it explicitly contains provisions that are against the prior environment clearance. For instance, it provides for a post-facto clearance process. It means that industries can start their operations and seek environmental clearance at a later stage. This goes against the precautionary principle of UNFCCC 1992 (Rio Declaration) to which India is a signatory.
Principle 15 of the convention provides that States shall apply the precautionary approach to protect the environment.
It provides further that where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.
Indian Supreme Court has also lambasted the idea of post-facto clearance in very harsh terms and has observed that “environment law cannot countenance the notion of an ex post facto clearance”.
Concern IV: Compromising on the Polluter Pays Principle
The polluter pays principle is based on the broad understanding that the financial costs of preventing or remedying environmental degradation lie with the one who causes such degradation.
It was first recognized in the Stockholm Declaration in 1972. It was later re-affirmed in other conventions on climate change including many UNFCCCs and all of which have been signed and ratified by India.
Note, that during the Rio Declaration of 1992, India had pledged to provide judicial and administrative remedies to the victims of the pollutants and other environmental damage.
However, under the draft EIA 2020, it allows a violator to get away with having caused significant environmental damage over a considerable period of time by merely paying a penalty of Rs 2,000 to 10,000 per day coupled with some mitigation measures that the draft does not talk about in much detail.
This is farcical because most environmental damages are generally irreversible. Even the Environment Protection Act 1986 that was enacted over 35 years ago provides for a stricter penalty in terms of 5-7 years imprisonment coupled with a fine.
While the government might have genuinely intended in good faith to make the clearance process more expedient through concepts like post-facto clearance, it should also pay heed to make the environmental protection process more expedient as well.
It is certainly not wise to destroy the environment in the quest for material development.
Concern V: Weak Cognizance Mechanism
The draft EIA 2020, in cases of certain strategic projects, authorizes only some government authorities, appraisal committees, regulatory authorities, and the violators themselves to report the violation of environmental norms.
It totally excludes the general public from making complaints in such cases. This makes the cognizance mechanism of the new EIA a weak one. Also, one wonders, which violator will choose to report his own violation.
The exclusion of the general public from making complaints in cases of strategic projects is also anti-democratic. It goes against Article 51(a)(g) of the constitution that makes it the duty of all citizens to protect the environment and natural terrains like forests, lakes, rivers, and wildlife.
These natural assets can be compromised even in cases of strategic projects. Hence, listening to the common people’s grievances in such cases becomes more important especially in a country like ours that boasts of its democratic credentials.
Further, if common people can be trusted to vote and elect the rulers of the country, there appears no good reason as to why they should not be allowed to report cases of violation in all kinds of development projects.
Also, the authorities who have been empowered to report the cases of violations might not be as vigilant as concerned citizens negatively affected by environmental degradations in their surroundings. Moreover, there are fewer chances of the latter caving to political whims and pressure.
Citizens are an important stakeholder in the environment conservation efforts. And there have been scores of instances where common people have come forward and prevented large scale natural hazards and environmental degradation.
For instance, in the Uranium Corporation of India Limited case, it was the local Adivasis who reported pipe bursts and prevented the spilling of thousands of radioactive waste in Jharkhand.
Similarly, in the recent case of the Sangli Highway expansion, the local villagers campaigned to save a 400-year-old Banyan tree from being chopped off in its entirety. Unfortunately, the government authorities on whom the draft relies heavily have given the green signal for felling the historic tree.
Current Status of the Draft EIA 2020
Ministry of Environment, Forests, and Climate Change, India (MoEFCC) had first published the draft EIA notification for public feedback on March 23. It gave a deadline for accepting public comments till June 30. This deadline, however, has been extended several times since then.
The Delhi high first extended it till August 11 which was further extended by the Karnataka High Court till September 7, 2020. In addition to the Delhi HC, the Karnataka HC also asked the central to look into the feasibility of translating the draft in all scheduled languages mentioned in the eighth schedule of the Indian constitution.
The center had filed an appeal in the Supreme Court against the translation order by Delhi HC. The apex court, however, refused to entertain this challenge, as per a report published in the DTE.
Environmentalist groups also have demanded the translation of the draft into various Indian languages for the benefit of the common people. A petition regarding the draft EIA is pending in the Madras High Court
Conclusion
Summing up, it will be a sheer miscalculation to think that the loss created by the Covid-19 can be overcome by rapid industrial development especially if that is achieved by compromising with the environment.
We should not forget that the ongoing corona pandemic that has brought the world to a standstill for over a year is a negative byproduct of human adventurism only.
Even an economic cost-benefit analysis of the EIA draft does not support the idea of industrial progress at the cost of tampering with the environment.
Zoonotic diseases like Covid-19 along with various natural and industrial disasters resulting from human greed and over-exploitation of nature can make even all such industrial progress.
In the form of rising temperatures and sea levels, they can also leave a disastrous trail behind. If not for ourselves, we should at least be considerate about the well-being of the coming generations of humanity. That’s what sustainable development is all about.