India's Lost Opportunity To Recognize The Principle Of Transboundary Environmental Impact Assessment

Praharsh Gour
27 May 2020 3:33 PM GMT
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A consistent remark in the Prime Minister's speeches has been about "New India" paving way for development and progress. However, the Ministry of Environment, Forest and Climate Change's (MoEF&CC) new draft Notification for Environmental Impact Assessment (EIA Notification 2020) has been anything but progressive. What's new in this draft notification is the inclusion of term "border area" in the definition clause. The clause defines such areas to be the ones falling within the vicinity of 100 kilometers from the border of its neighbors. This inclusion, for the first time in twenty six years, has tried to draw a correlation between EIA conducted within the Indian territory and its neighboring states. However, the optimism wears out post the definition clause of the policy. If one dives further in the notification, one will realize that post the technical jargons and terminologies, this new term is specified to expressly exempt public consultation on linear highway and pipelines projects falling in such areas. It is not surprising to find that the notification is also reticent about the obligation to notify or consult any other state in case of transboundary harm arising from the activities conducted within India.

Conceptually, EIA is assimilated with the duty to maintain a balance between development and ecological interests. It tends to act as a checking mechanism in defense of those who are affected the most by such projects. However, today such a protectionist outlook of the government with regard to its EIA obligations begs for an intervention. The EIA Notification 2020 not only deprives EIA of its responsibility to consult the affected people, by reducing the period for public consultation, but is also ignorant of the development around EIA in international environmental jurisprudence.

Though not defined anywhere as such, the principle of Transboundary EIA finds its place in Principle 21 of the Declaration of the United Nations Conference on the Human Environment, 1972 also known as Stockholm Declaration. The Declaration dictates the customary principle that it is the right of a state to exploit its own natural resources, so long its activities do not cause damage to environment of another state. To fulfill this obligation, it is essential that states take up due diligence and cooperate among themselves.

However, the Stockholm Declaration is silent about the obligation to conduct EIA, which has been expressly mentioned in the Declaration on Environment and Development, 1992 or the Rio Declaration, 1992, under Principle 17 separately. It was the International Court of Justice (ICJ) which viewed transboundary harm principle and EIA from one lens, for the first time. The court in the Pulp Mills on the River Uruguay (Argentina v. Uruguay) labelled the principle of Transboundary EIA to be a part of "general international law". It held that the EIA must be conducted by state of origin, when there is a "risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource." (para. 204). Interestingly, India adopted its first EIA Notification, post Rio Declaration in 1994 which was bereft of any provision for Transboundary EIA, understandably because of absence of general state practice to that end then.

Since the last notification of 2006, the global regime pertaining to EIA has undergone multiple progressions. From development in modes of technology and communication in last 14 years to specific development in principle of Transboundary EIA, the global environmental law regime has come a long way since 2006. The government must understand that incorporating the same orthodox ideas and methods regarding the EIA sans the international development pertaining it will reflect poorly on its reformist image. Therefore, it would have been wise on its part had it capitalized on chance of adopting the principle of Transboundary EIA in the draft notification.

One may argue that the government may still implement the Transboundary EIA principle on a project-to-project basis, with specific treaty provisions dedicated to address this issue every time it undertakes a project in the vicinity of its borders. Regardless of how appealing this resort to old trick may seem one cannot ignore that such a method is not just time consuming, repetitive and stagnant but also lacks clarity which could possibly have been attained by making a simple provision in the domestic legislation in the first place.

What seems to be unbeknown to the MoEF&CC, is that the implementation of transboundary EIA mechanism in domestic legislation isn't an alien concept. For instance Directive 2011/92 of the European Union under Article 7 requires the member country to forward an EIA on project likely to have a significant effects on environment of another member state. Similarly, the Impact Assessment Act, 2019 of Canada went a step further and subjected the projects with significant transboundary harm to the same domestic law, as applicable on projects with domestic ramifications. But it must also be kept in mind that such instances are limited in number and are often empowered with milk teeth to prove their mettle.

Therefore, the question arises as to how can a country implement a robust mechanism for Transboundary EIA? It is an amusing coincidence that the solution to this problem was offered by an Indian Judge serving in the ICJ. Judge Dalveer Bhandari in his separate opinion on the Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica)/ Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) opined that prior to conducting EIA, states must categorize industries. They must identify the ones for which transboundary EIA shall be mandatory and should pay due regard if such industries are located near nation's border or if emits such pollutants which may pose as a risk for neighboring states (Para. 42). Post such identification, the states must then identify the situations wherein the obligation for conducting EIA can be exempted for instance- occurrence of a natural disaster, nuclear disaster, etc (Para. 43). Once the above procedural mechanism is in place, the state may then share a detailed EIA report prepared by it or shared with it by the project, with the affected state.

But the question still persists. Does India need such a 'fancy' mechanism to keep its projects in check? For starters, India cannot shy away from an obligation which is regarded as a part of general international law. India is signatory to the 1992 Rio Declaration which expressly prescribes for principle against Transboundary harm and EIA and therefore is bound by the treaty and general international law obligations. The geographical location of India and rapid rate of undertaking development projects in the vicinity of its border also adds on to the need of having a general and consistent EIA mechanism in place. Furthermore, lessons from Sethusamudram Ship Channel Project and Pancheshwar Multipurpose Project may corroborate to this need. The primary contention as raised by both Sri Lanka and Nepal, respectively, in the above disputes has been the lack of due diligence and information sharing on part of India, which could have been easily resolved had India had a Transboundary EIA regime in place. Owing to the aforesaid reasons, it is advisable that India implement a singular and certain mechanism to implement this principle soon enough. It had a chance by placing it in the EIA notification 2020, however, the categorical omission by the government of recognizing this international obligation tells us yet again that we are still to learn the lesson.

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