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EIA Draft Notification 2020: Of Licensing The Damage And Silencing The Voices

Lakshmi Subramaniam Iyer
8 Aug 2020 8:55 AM GMT
EIA Draft Notification 2020: Of Licensing The Damage And Silencing The Voices
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The EIA Draft Notification, 2020 begins with tall claims of making the process of Environment Impact Assessment "more transparent and expedient", but the measures it propounds in the following pages make it abundantly clear that expediency is being prioritized at the cost of transparency. The draft makes the process more opaque by considerably reducing public consultation and ends up not just monetising, but to a great extent, incentivising environmental damage by legitimizing post-facto environmental clearance.

Here's a lowdown on the most harmful aspects of the EIA Draft 2020:-

Re- categorization of Projects

  • Re-categorization

That Clause 5 of the EIA Notification categorizes projects into Category A, B-1 and B-2 based on the potential social and environmental impacts and spatial extent of these impacts.

Project classification is mentioned in the Schedule to the Notification.

Clause 5 of the Notification has to be read with Clause 10 of the Notification which provides for stages in prior Environmental Clearance (EC) or Prior Environmental Permission Process. (EP)

As per Clause 10, there are six stages for grant of Environmental Clearance process for projects under Category A or B-1, viz.-

  1. Scoping
  2. Preparation of Draft EIA
  3. Public Consultation
  4. Preparation of Final EIA
  5. Appraisal
  6. Grant or Rejection of Prior Environmental Clearance

However, when it comes to prior Environmental Clearance for Category B-2, the process is reduced to three stages:-

  1. Preparation of Environment Management Plan Report
  2. Appraisal
  3. Grant of Rejection of Prior Environmental Clearance

Thus, for projects under Category B-2, Public Consultation has been given a go-by. Also, Environmental Management Plan is not as thorough as an Environmental Impact Assessment Report, which can be gathered by a bare perusal and comparison of the Generic Structure of Environmental Impact Assessment Report (contained in Appendix- X of the Notification) and the Generic Structure of Environmental Management Report (contained in Appendix- XI of the Notification).

That for projects under Category B-2, that are not required to be placed before the Appraisal Committee, grant of Prior Environmental Permission is a two-stage process-

  1. Preparation of Environmental Management Plant Report
  2. Verification of completeness of Application by the Regulatory Authority
  3. Grant or Rejection of Environment Permission.

Thus, for projects categorized as B-2, grant of prior Environmental Clearance or prior Environment Permission does not involve public consultation.

Although the aforesaid clauses might appear to be reasonable/ innocuous, the problem arises when the aforesaid clauses are read with the Schedule to the Notification, which enlists the projects under the aforementioned three categories.Many projects that were categorized as Category A or projects that were considered as having high pollution potential have been re-categorized as B-2 projects. This re-categorization has no scientific backing and appears to be an arbitrary step.

It appears that the re-categorization has been done with the sole aim of ensuring that clearances and permissions are granted to the projects without a thorough impact assessment study and without public consultation.

Example

  • Exploration - Offshore and Onshore Oil and Gas including CBM and Shale Gas

Under the EIA notification 2006, all projects involving exploration, development and production were categorized under Category A except Exploration Surveys not involving drilling provided the concession areas have got previous clearance for physical survey.

However, under the Draft Notification, 2020, all projects involving Exploration are included in Category B-2 (where the EMP is not sent before the Appraisal Committee). Thus, activities such as drilling of exploration wells in case of oil and gas, which are known to have huge environmental impact, are exempted from (a) preparation of EIA study and (b) public consultation.

  • The building and maintaining of the infrastructure for Inland waterways comes at a huge environmental cost, as it may have a lasting impact on not just the delicate ecosystem of rivers and other water bodies but also on the livelihood of fishing communities that depend on these rivers. By keeping all Inland waterway projects under Category B-2, the notification willfully overlooks the very real need for EIA study and public consultation in such cases.

This exemption from EIA study and public consultation appears to be a step towards facilitating Ministry of Shipping's proposal to convert 111 river stretches into waterways. It is also in line with the 2019 National Mineral Policy which hinted on promoting waterways as a mode of transportation of minerals. The aforementioned policies are based on the wrong presumption that inland waterways is an environment friendly alternative to conventional mode of transportation. The policy makers have conveniently ignored the potential ramifications which such a shift in transportation would have on the ecology and the life and livelihood of river dependent communities. Intrusive practices such as dredging of river beds and straightening of rivers, which are known to cause severe impact on river habitat, will have to be employed to make the movement of cargo successful. Also, transportation of cargo would make rivers prone to pollution due to diesel and other toxic wastes.

  • Change in the threshold limit

In case of projects, where the draft Notification retains the category classification of the project provided by the earlier EIA Notification, a careful reading would show that the threshold limit has been changed.

Example

  • Under the EIA Notification 2006, in case of River Valley Project- Hydroelectric projects (HEPs), a plant with capacity of 50MW or more was categorised as Category A and between 25 MW to 50MW was categorised as Category B (B1 and B2).

Whereas under the Draft EIA, 2020, Hydroelectric projects (HEPs) with more than 75 Mega Watt (MW) have been kept under Category A, Category B-1 consists of projects between 25 MW and 75MW. All projects below 25 MW are Category B-2.

  • Similar change in threshold limit can be seen in case of irrigation projects. Building and Construction Projects have also witnessed substantial change in threshold limit although the category remains more or less the same- Category B-1 and B-2.

The change in threshold limit can also lead to ouster of a project from Category A and B-1 making certain projects exempt from both Environment Impact Assessment study and Public Consultation.

Evading public scrutiny under the garb of "national interest"

Clause 5(7) provides that all projects concerning national defense and security or involving other strategic considerations, as determined by the Central Government, shall require prior EC or EP as the case may be from the Ministry. The Notification neither defines "other strategic considerations" nor provides any guideline or broad contour to determine the same. The Notification leaves it to the Executive wisdom to decide the scope and ambit of the word and thus leaves a lot of room for subjectivity and arbitrariness.

Public Consultation

Public consultation is an important component under which the concerns of local affected persons and others, who have a stake in the environmental impact of the project, can be taken into account while designing the project. , Public consultation plays an indispensable role in making the process of grant of Environmental Clearance transparent. The decision to cut down public consultation would make the process undemocratic.

The objections with respect to public consultation under the Draft Notification are two-fold:-

  1. The Draft Notification does away with the requirement of public consultation for a wide range of projects.

ii. Reduction in time period for furnishing response of public from 30 days to 20 days.

  1. The Draft Notification does away with the requirement of public consultation for a wide range of projects

Proviso to Clause 14 enlists projects that are exempt from public consultation. Most of the projects listed under this proviso are projects with potential social and environmental impacts and there appears no reason why these projects should be exempted from public consultation.

Example

  • Though expansions of Category A and B1 projects or their modernization that result in capacity increase of more than 50% require public consultation, an exception has been carved out in case of modernization of irrigation projects. Some adverse effects of irrigation projects on the environment include water logging, soil salination, change in groundwater table, increased evaporation and rainfall in the irrigated areas, decreased water flow and water quality for downstream users and severe ecological damage in some cases. Hence, to exempt all modernization of irrigation projects from public scrutiny would be a willful act of negligence, to say the least.

  • All linear projects under item 31 and 38, in Border Areas.
  • Item 31 of the Schedule deals with Oil and gas transportation pipeline, passing through national parks or sanctuaries or coral reefs or Ecologically Sensitive Areas and Slurry pipelines (coal, lignite and other ores) passing through national parks or sanctuaries or coral reefs or Ecologically Sensitive Areas.

Public consultation is limited to Oil and gas transportation pipeline projects to the district (s), where the National Park or Sanctuary or Coral Reef or Ecological Sensitive Area is located

  • Item 38 deals with Highways or Expressways or Multi-modal corridors or Ring Roads

Border Area has been defined as area falling within 100 kilometre aerial distance from the Line of Actual Control with bordering countries of India.

The definition of Border Area is vast enough to bring within its purview most of the hilly area in the North Eastern part of India, a region where the government should have seized the opportunity to build public confidence by making public consultation in environmental projects mandatory and thus ensuring an inclusive and participatory governance.

  • All projects concerning national defence and security or involving other strategic considerations are also exempted. It is reiterated that not providing guidelines to determining which project will fall within the purview of "other strategic considerations", the Draft Notification leaves room for subjectivity and arbitrariness. In fact, no information related to these projects shall be placed in public domain.

ii. Reduction in time period for furnishing response of public from 30 days to 20 days.

Under the EIA Notification, 2006, a minimum notice period of 30(thirty) days had to be provided to the public for furnishing their responses to the Draft EIA, whereas under the Draft EIA Notification, 2020, the period for receiving public response has been reduced to 20(twenty) days [See Appendix-I- Procedure for Public Consultation]. It also requires that the public hearing process be completed in 40 days as compared to 45 days under the EIA Notification, 2006. The Ministry has failed to account for the practical realities and difficulties of public hearing while deciding reduction in the time period. Inadequate time to understand and respond to EIA Report will render the step of public consultation meaningless.

The process of grant of environmental clearance should not expedited at the cost of the process becoming non-transparent and undemocratic.

Modernisation

As per Clause 16 of the Draft EIA Notification, 2020, EIA Report is not required in case of modernization of projects where the intended increase in production capacity is up to 25%. As discussed in the aforesaid paragraphs, public consultation is required only in case the modernization intends to increase the production capacity by more than 50%.

In case of a large scale project, any increase in production can have a huge impact on the environment and health and safety of people living in the vicinity. The threshold limit set by the Notification is unreasonable and does not appear to be environmentally sound.

Validity of Prior Environmental Clearance or Prior Environmental Permission.

The Draft EIA Notification, 2020 divides a project into following three phases for the purpose of validity of period or prior EC or prior EP:-

  1. Construction or installation phase
  2. Operational Phase
  3. Redundancy or closure or dismantling phase

The Draft EIA notification has considerably increased the period of validity of prior EC.

In case of mining projects the period of validity of prior EC has been increased to 50 years as opposed to the 30 years period, as per EIA 2006. For river valley, nuclear power and irrigation projects the validity period is increased from 10 years to 15 years and for all other projects the period of validity is increased from 5 years to 10 years.

The aforesaid increase in validity of environmental clearance at the construction phase allows project proponents to secure land for long durations without initiating any productive activity and may promote land grab.

Even during operational phase any likely change in the process, by technological up-gradation or improvement or requirement of additional raw material or use of excess ground and surface water, release of additional waste water, increase in waste and hazardous waste disposal may enhance impact on surrounding environment, for whose identification and mitigation an EIA study is a must. The Notification fails to factor in the aforesaid changes which can have a significant adverse impact on the environment.

Monitoring of post project prior -EC or prior EP

Under the EIA Notification, 2006, the Project proponent had to submit half yearly compliance reports in respect of the prior environmental clearance terms and conditions to the concerned Regulatory Authority on 1st June and 1st December of each calendar year. The Draft EIA Notification, 2020 has amended this clause. Under the Draft Notification, the project proponent has to submit the Compliance Report pertaining to the previous financial year by 30th June. Thus, the mandate of submission of half yearly report has been diluted and reduced to submission of an yearly Report.

This amendment benefits no one except the project proponent. The concept of half yearly compliance report emanated from the need for continuous monitoring of the project as environmental damage is mostly irreversible. Half yearly reports ensured that in case of any violation of the terms and conditions for the grant of EC, the project proponent can be held accountable and prompt mitigation measures can be taken to reduce the harm. It is well known that projects under Category A and B-1 have a huge environmental impact and thus the exemption proposed to be granted from submission of half yearly report under the Draft EIA Notification, 2020 seems unreasonable.

Dealing of Violation Cases

There are two broad objections to the manner in which violation cases have been dealt with under the EIA Draft Notification, 2020. The first objection pertains to the reporting and the second objection pertains to regularisation/post-facto environmental clearance.

  1. Reporting

As per clause 22 the Draft EIA Notification, the cognizance of the violation shall be made on the:-

  • Suo moto application of the project proponent;
  • Reporting by any Government Authority; or
  • Found during the Appraisal by the Appraisal Committee;
  • Found during the processing of application, if any, by the Regulatory Authority

Reporting of violation or complaint by any stakeholder is conspicuous by its absence.

  1. Post Facto clearance

Post Facto Environmental Clearance is contrary to the well-settled concept of precautionary principle in environmental jurisprudence and is opposed to the idea of sustainable development. The Supreme Court and various High Courts have time and again frowned upon the practice of grant of post facto environmental clearance. However, despite strong reasons against such a provision, post facto clearance forms a part of the Draft EIA Notification.

As per Clause 22(7), the Appraisal Committee shall stipulate the implementation of EMP, comprising remediation plan and natural and community resource augmentation plan corresponding 1.5 times the ecological damage assessed and economic benefit derived due to violation in case of suo motu application and two times in cases where the ecological damage has been assessed by authority or found during the appraisal of the Appraisal Committee or during the processing of application by the Regulatory Authority.

This essentially means that in cases of a violation, the project proponent shall be only liable for remediation and resource augmentation equivalent to 1.5-2 times of the ecological damage and the economic benefit derived from the violation.

Similarly, on cognizance of violation through suo motu application, a late fee of Rs 1000 per day in case of Category B-2 projects, Rs. 2000 per day in case of B-1 projects and Rs. 5000 per day in case of category A projects shall be paid by the project proponent for the period of delay. In case where the reporting has been done by any Government Authority or found during appraisal by the Appraisal Committee or processing by Regulatory Authority, the project proponent will have to pay a late fee of Rs 2000 per day for B-2 category projects, Rs. 4000 per day for B-1 category projects and Rs 10,000/- per day in case of Category A projects.

Violation in case of prior environmental condition would mean instances where the project proponent has violated the terms and conditions for the grant of prior EC. It would also include cases where the construction work, expansion of project or excavation work was undertaken without obtaining prior EC.

The regularisation of an activity prohibited under the Notification itself by mere payment of a certain amount of money by the project proponent- violator not only amounts to grant of post facto clearance but also amounts to monetisation of environmental damage by the Government.

Exemption to certain projects

As per Clause 26 of the EIA Notification, certain projects shall not require prior EC or prior- EP. Clause 26 includes large-scale projects such as Solar Photo Voltaic Power Projects, Solar Thermal Power Plants and development of Solar Parks [See 26(14)]. Although the adverse environmental impact of a solar plant when compared to a thermal power plant or a hydro-electricity project is less, one cannot deny the requirement of land and water for establishment and operationalization of a solar power plant. The possibility of environmental degradation due to diversion of agricultural land or fertile land for the purpose of establishing a solar power plant and diversion of water resources for operation of plant cannot be ruled out. In fact, the best locations for solar energy generation are usually places with dry climatic conditions and poor surface and ground water availability.

Conducting an Environment Impact Study before commissioning a solar power plant is a practice that has been adopted world over and the Ministry should not strive to make India's environmental policy an exception to this internationally accepted norm. In fact, the recently inaugurated Rewa Solar Park in the State of Madhya Pradesh was also commissioned after a thorough EIA study (the report runs into 448 pages)[1] as an Environment and Social Impact Assessment study is a pre-requisite for commissioning of a World Bank funded project. The study revealed the adverse impact which the project would have on soil, water and ecology of the area. The study identified change in land use pattern, contamination of soil, contamination of water, removal of natural vegetation cover, impact on surface hydrology as some of the potential impact of the project. In addition to the impact, the study suggested certain mitigation and management measures which the project proponent could adopt.

A project, howsoever, green has an impact on the ecology of the area and the health, safety and well-being of people living in the vicinity of the project. Therefore, exempting such projects altogether from public consultation and environmental impact assessment study is fallacious.

Similarly clause 26(36) provides that Manufacturing Unit under the Ministry of Defence or strategic units for explosives, detonators, fuses including management and handling units or depots under the Ministry of defence will also not require prior EC or EP. This exemption too is unfounded. That exempting projects from public consultation though debatable is understandable in case of Defence projects, however, complete exemption from any environment impact assessment study would prove fatal. The projects undertaken by the defence especially relating to manufacturing of explosives have a huge pollution potential and therefore a blanket exemption is not in line with the Environmental Policy of the Country.

The process of grant of EC is a six-stage process which includes preparation of EIA Report, submission of the report and its appraisal by the Appraisal Committee, Recommendation of the Appraisal Committee, stipulation of terms and conditions for the grant of prior Environmental Clearance and public consultation. Once EC is granted, a project is monitored and compliance report is filed from time to time. Public consultation thus, is one such step towards grant of EC. The aforementioned other stages are equally important and continue to hold significance irrespective of whether a project is a defence project or not.

The EIA Notification, in the present form, not only runs contrary to the precautionary principle, which forms the backbone of environmental jurisprudence and sustainable development, but also defeats the very object with which the EIA process has been put in place. In the light of such grave concerns, the government must withdraw the notification and consider redrafting the many problematic aspects of it.

Views are personal only.
(Author is a practising Lawyer at Supreme Court)


[1] Environmental and Social Assessment Report 750 MW Solar Power Project, Rewa District, Madhya Pradesh, available at http://documents1.worldbank.org/curated/en/707731472800875793/pdf/SFG2423-EA-P154283-Box396305B-PUBLIC-Disclosed-9-1-2016.pdf

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