New EIA Draft and its Harsh Implications: A Must Read for All

What is EIA

EIA (Environment Impact Assessment) is a method adopted by the government in 1976-77, which is backed by the Environmental Protection Act, 1986 also known as cobra without fangs. This Act is called so because this act is not backed by any deterrent punishment for its violation. Environment Impact Assessment is a process of evaluating of the likely environmental impacts of a proposed project or development, taking into account inter-related socio-economic, cultural and human-health impacts, both beneficial and adverse.

Till 1994, this EIA clearance was merely an administrative decision and lacked the legislative support and therefore its ambit was narrower. Therefore in 1994 new notification  was passed, which made it mandatory for any project listed in schedule 1 of the notification to take clearance. And ten in 2006, again new notification was passed by the Ministery of Environment, Forest and Climate Change which gave the State Government power to grant clearance and made it mandatory for various projects such as mining, thermal power plants, river valley, infrastructure (road, highway, ports, harbours and airports) and industries including very small electroplating or foundry units to get environment clearance. And decentralised the process as category A for the National level appraisal and category B for the state level appraisal.

Stakeholders in the EIA Process:

• Those who propose the project
• The environmental consultant who prepare EIA on behalf of project proponent
• Pollution Control Board (State or National)
• Public has the right to express their opinion
• The Impact Assessment Agency
• Regional centre of the MoEFCC

Process:

1. Site Selection will be done for the project

2. Conduct EIA over the site. Though through the Butterfly effect theorem it is impossible to exactly get the exact picture of all the negative impact created over by the project. But still the Pollution Control Board has bifurcated the assessment as Negligible and Non-negligible impact. In the M V Naydu case[1] the court held that the project needs to be non-negligible plus absence of reasonable ecological or medical concern in order to grant clearance, both the condition should be satisfied.  And the burden of proof is upon the project proponent.

3. NOC Application is then given by the pollution control board (as mention category A or B)

4. Public Hearing is then done by the court if the local people is getting affected by the project then the trial begins.  

5. Expert Appraisal Committee will be given the report at the end, when the project proponent wins the case in public hearing. Then the panel of experts as selected by the government makes their judgement about the project and its consequences and also provide with the suggestions in order to mitigate the consequences if any.  

In reality there are many instances where the project proponent/company misuse these laws easily. For example, in recent case we saw in Visakhapatnam gas leak, LG Polymer Chemicals Plant was not even granted the Environmental clearance, but yet it was working and killed 26 workers and affected more than a 1,000 people over there. In Assam fire in the Oil well of Oil India Limited, where nearly 1,383 families were affected was not conducted the Public Hearings and was violative of Environmental Laws.  

[Visakhapatnam Gas Leak and public finding help]

Source:theindianexpress

[Assam Oil Well Fire]

Source:jagranjosh

NEW DRAFT OF EIA, 2020

Government has brough a new draft for EIA and the changes in the new draft rather than making the Environmental laws more powerful, it is weakening its efficiency. The draft has many short comings, which could result unfavourable for the environment and because it will impact all of us thus it becomes important for everybody to have a look upon it and raise the voice if find any wrong in it. For example:

1. Post Facto Clearance: That any project can start operating even without the clearance of the government. Eg., Visakhapatnam gas leak that created a raucous situation for the local people, would be legal as per the new draft.

Even the Supreme Court has said that the ex-post facto EC (Environmental Clearance) would be in derogation of the fundamental principle of the environmental jurisprudence. Jts. DY Chandrachud and Jts. Ajay Rastogi has said that the “Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of industrial activity or the expansion of an existing industrial activity are considered in the decision-making calculus. Allowing for an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment…”  

 2. Reduction in the period of public hearing: Earlier 30 days were given to the public for make any complaint for the project has now reduced to 20 days. Which will make it difficult for the public to file a complaint against any project which will adversely impact the environment. 

3. Exemption from Public Participation: in the page number-29, point number-22 of the draft the government clearly says that the public cannot point out any violation done by any project (except for public hearing), but the government authorities or the violator himself can point out such violations if made in derogation of environmental laws.  

This is clear violation of the fundamental right granted under article 21 of the Constitution. As the Supreme Court has included right to fresh air, water and environment as a fundamental right under this article . In the case of Subhash Kumar v. State of Bihar[2]. This change will make the people week and the authorities ore powerful as nobody from the public could then make out any complain of the violation done by the project proponent.

4. Strategic Exemption: Page number-9, Point-7, the draft says that it is now upto the government to decide which project is for the strategic development and the details of the following project will not be revealed to the public as national security issues.   

5. Additional Exemptions from Public Consultation: Page no-19, point no-2 of the draft tells that the following types of project will not be open for the public consultation. Point f of which talks about ‘projects in border area’ and as per the draft, border area means 100 km from the border. So basically, any project in this area is clearly not open for public consultation.

 

This will hugely impact parts like, for eg., north-east India, where now in more than 80% of the area, if any project will be initiated in that area, which is likely to impact environment negatively, will be kept out of the purview of public consultations and which will not only article 21 but also right to free speech u/a 19 will be taken from the north-east people and government can make any project.  

 

These rules have not yet been implemented as it is only a draft yet and open for public suggestions. Deadline for the suggestions is till 11 August and we can send our suggestion to the government till then to eia2020-moefcc@gov.in.  

Link for the draft: 

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

PLEASE RAISE YOUR VOICE!

 Also read - Structure and Role of Indian Government in Environment Protection: An Overview

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[1] .P. Pollution Control Board vs Prof.M.V.Nayudu (Retd.) & Others 1999(2) SCC 718

[2] Subhash Kumar v. State of Bihar 1991 AIR 420, 1991 SCR (1) 5