The changes proposed by the Environment Impact Assessment ( EIA) Draft Notification dated 23.03.2020 issued by the Ministry of Environment, Forest and Climate Change under Section 3(1) and 3(2) (v) of the Environment (Protection) Act in the midst of COVID-19 outbreak dilutes and impairs the EIA process to a considerable extent and brings adverse impact on environmental protection measures in India.
Though the twin object highlighted for the new exercise is to impose restrictions and prohibition on undertaking some projects or expansion or modernization of such existing projects entailing capacity addition and further to make the whole EIA Process more transparent, expedient and for its rationalization and standardization, a cursory examination of the provisions may make one to believe that it does not facilitate improvement of the existing legal regime on EIA.
Section 3(1) of the Environment (Protection) Act, 1986 empowers the Central Government to take measures to protect and improve the environment and to prevent, control and abate pollution and 3(2) (v) deals with restriction of areas in which industries, operations or processes shall not be carried out or shall be carried out subject to safeguards. Viewed in the light of the enabling provisions, the proposed changes cannot be seen as a green measure intended to safeguard ecological security and bio-diversity. On the other hand, it seriously erodes citizens’ right to environmental information, public consultation and hearing, the most invaluable rights of the common man in the environmental decision making process.
Significance of EIA in Environmental Decision Making
EIA is a process of evaluating 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. Evidently, it is a tool used to identify the impacts of a project prior to decision making. Built on the pillars of precautionary principle and sustainable development, in India, it is also statutorily backed by the Environment (Protection) Act. The importance of EIA is that it ensures that a developmental plan is environmentally sound and is within the limits of the capacity of assimilation and regeneration of the ecosystem.
The history of EIA in India could be traced back to 1994, when the first EIA Notification was issued making Environmental Clearance mandatory for expansion or modernisation of any activity or for setting up new projects listed in Schedule 1 of the Notification. This was followed by the 2006 Notification making Environmental Clearance mandatory for various projects such as mining, thermal, river valley, infrastructure, industries including foundry units. EIA mainly covers four stages such as screening, scoping, public hearing and appraisal. Category A, B1 and B2 projects require mandatory prior environmental clearance/permission, whereas certain projects in category B2 need not be placed before Appraisal Committee.
The EIA norms are part of the due process of law. The 2020 EIA Notification is intended to replace the existing 2006 EIA norms and consequently it has generated knee-jerk reactions across the country. The salient features of the 2020 Draft Notification is that it has exempted 40 different cases of project activities from the need for prior environmental clearance under Clause 26, sets time frame for holding public hearing, permits public consultation through any appropriate mode. It also permits industrialists who are project proponents to engage private consultants for preparing the EIA Report. There is no more need under the Notification for public consultation in respect of existing industries seeking expansion or modernisation with capacity increase less than 50 percent, thus facilitating piecemeal expansion of existing projects without public consultation. Under Clause 14 of the Notification, Public Consultation is exempted for seven specified categories including modernisation of irrigation projects, all category ‘B2’ projects.
Significantly, the Notification also extends to territorial waters. It envisages the concept of ‘fine’, and leaves scope for ‘post-facto environmental clearance’ which is alien to environmental jurisprudence and which undermines the EIA process. Fining the violator hardly brings any deterrent effect having regard to the harm caused to the environment.
The new EIA norms provides that all projects concerning national defence and national security or involving other strategic considerations, as determined by the Central Government requires prior Environmental Clearance only from Ministry. The expression ‘other strategic considerations’ being quite vague and undefined would perhaps emerge as a matter of pure discretion.
Not a Glorious Attempt
The Notification cannot be seen in any manner as a glorious attempt, as it has not recognised the true intrinsic character of public consultation which rests on the ideal that apart from the knowledge provided by science and technology, local communities and its spirited citizenry have innate knowledge of the environment and it is always beneficial to gain from their local knowledge. Public consultation involves both public hearing and inviting responses, which cannot be dispensed with under any situation, whatever is its justification.
Role of Civil Society and Good Governance
Civil society plays an important role in giving voice to the concern of citizens and rendering services that meet people’s needs. It has a significant role to play in matters affecting the environment. The concept of good governance for sustainable human development comprises the mechanisms, processes and institutions through which citizens and groups articulate their interests, exercise their legal rights, meet their obligations, and mediate their differences. Good governance has to be epitomized by predictable, open and enlightened policy making. A bureaucracy imbued with professional ethos acting in furtherance of the public good is its integral part, apart from rule of law, transparent processes, and a strong civil society participating in public affairs.
A country’s economic success depends in large measure on the quality of governance it enjoys. The traits of good governance include participation of men and women in decision making, a fair and impartial legal framework, transparency, responsiveness to serve all stakeholders, consensus orientation, equity, effectiveness and efficiency, accountability, and strategic action. The 2002 Johannesburg Summit has specifically linked good governance to sustainable development.
Common citizens and civil society groups are the consumers of environment which is a trust in the hands of the incumbent Governments. It is only by being informed with basic facts about the quality of their environment, citizens and civil society groups can become active participants in identifying and resolving issues at both local and national levels.
India is a ‘Democratic Republic’ and people have the right to participate in governmental decisions. It is of equal significance that people have the right to know and have access to information of government policies, which is important for the success of environment management policies. This has come to be recognized in Europe as a fundamental right with the Aarhus Regulation of the European Parliament coming into force in 2007. But this is yet to receive its full recognition in India. Nevertheless, it is the responsibility of the Government to make the people aware of the adverse consequences of environmental hazards so that people should not only preserve and protect the environment, but should also ensure the compliance of environmental laws and if need be, take recourse to judicial proceedings to enforce such laws for the benefit of the present and future generations.
Right to Know and Public Awareness: Role of NGOs
Right to know is a basic democratic right in a Government of responsibility and people have a right to know every public act, everything that is done in a public way by their public functionaries. Knowledge is power, but information is the oxygen of knowledge. The right to participate in the affairs of the country is meaningless unless the citizens are well informed on all sides of the project proposal, in respect of which they are called upon to express their views. One sided information, disinformation, misinformation and non-information all equally create an uninformed citizenry which makes democracy a farce. Open Government is the new democratic culture of an open society. The public as a stakeholder in the EIA process has the right to express their opinion and any attempt to take away the same makes the process a farce.
In India, NGOs, media and corporate world owe a social responsibility towards well-being of our environment. The Government of India in its Policy Statement for abatement of pollution specifically gave importance to public partnership in implementing environmental laws. As a result of increased awareness of the citizens, increased legislation, increased involvement of NGOs and Consumers’ awareness, business houses are not only forced to adopt better environmental practices, but are being pressurized by citizens, NGOs and consumers to change their behaviour. Such a change is necessary and fundamental to the continued well-being and existence of life.
The need for public awareness and NGOs involvement was highlighted in Rio Summit by recognizing that NGOs have a long and proud history of fighting against tyranny and providing humanitarian assistance to the victims of conflict and natural disasters. NGOs armed with e-mail and internet has been proved more powerful than landmine. The Nobel Committee has recognized their work, awarding its peace price to NGOs, the Church, academic groups and others.
NGOs are considered to be the people’s platform for struggle against indifferent and hostile forces of the State. They perform myriad roles and functions in the area of environmental awareness and protection. The Environment Impact Assessment Regulation of 1994, as amended in 1997 conferred right on public to assess the “executive summary” of a proposal submitted by the project proponent. This access was to enable citizens to participate in a public hearing. This provision was made use of by NGOs’ in their attempt to make the environment clean and healthy.
The passing of the Right to Information Act, 2005 was a milestone and has given a tangible and enforceable shape to the right to information. People and NGOs’ have now the right to inspect documents and records, take notes, extracts or certified copies of those documents and records. They can also obtain information in any electronic mode. The Environment (Protection) Act together with the Right to Information Act has made the public powerful in obtaining information on environmental abuses.
Green Vision- The Need of the Time
There has to be transformative changes in economic, political, social and technological spheres motivated towards conserving nature and its sustainable use. This calls for a green vision. There should be independent EIA Authority and sector-wide assessment and creation of centralised baseline data bank. The process of Public hearing should be expanded to reach all projects having environmental impacts. Non-compliance of the conditions accompanying clearance should be viewed seriously and it should result in the automatic revocation of the clearance. More importantly the NGOs, Civil Society Groups and Local Communities should be empowered to build their capacities to use EIA norms for better decision making on developmental projects. The ultimate focus should be on conservation of natural resources and not on its exploitation endangering the environment.
(Adv.Dr.Pauly Mathew Muricken, is a Lawyer at the High Court of Kerala. He is also an Adjunct Professor and Research Guide at The National University of Advanced Legal Studies, Kochi and a member of the Guest Faculty in Law at Cochin University of Science and Technology)(Published on 27th July 2020, Volume XXXII, Issue 31)