GREEN OVERSIGHT
ACTIVISTS CALL IT A SELLOUT, THE GOVERNMENT CLAIMS IT HAS TIGHTENED NORMS. THE TRUTH ABOUT THE NEW ENVIRONMENT IMPACT ASSESSMENT (EIA) DRAFT
Activists call it a sellout, the government claims it has tightened norms. The truth about the new environment impact assessment draft
Ever since it was made public on March 23, the draft Environment Impact Assessment (EIA) Notification, 2020, by the Union ministry of environment, forest and climate change (MoEFCC) has invited severe criticism from environmentalists, activists and legal professionals. They allege that the central government is diluting the green clearance norms. Issued under Section 3 of the Environment Protection Act, 1986, the EIA notification prescribes procedures to regulate activities that impact our environment. India notified its first EIA norms in 1994, which were replaced in 2006. After 14 years, the Union government now wants to amend the norms to make the process “more transparent and expedient”.
Critics, however, claim the 2020 draft notification, if implemented, will not only favour industry over the fragile environment, but also limit public participation in environmental decision-making, and even reward violators. Most of them also allege that the Narendra Modi-led BJP government’s focus on enhancing ease of doing business has come at the cost of environmental degradation. In the past six years, India has seen a steady rise in the World Bank’s Ease of Doing Business ranking, up from No. 142 in 2014 to 63 in 2019. In sharp contrast, India’s rank in the Environmental Performance Index by the Yale Center for Environmental Law & Policy dropped from 155 in 2014 to 168 this year (out of a list of 180 countries). “Environment and development are seen as trade-offs, which is not the case. The government must do a comprehensive cost-benefit analysis, including the impact of development on nature and natural capital. This EIA has not done that,” says Pushpam Kumar, chief environmental economist, UN Environment Programme (UNEP).
The debate has now taken a political turn with Congress and BJP leaders trading charges. Commenting on the EIA, Congress president Sonia Gandhi recently asked the government to “stop dismantling India’s environmental regulations”. Her son and former party president Rahul Gandhi said:
“The draft is not only disgraceful, it is dangerous. Not only does it have the potential to reverse many of the hardfought gains that have been won over the years in the battle to protect our environment, it could potentially unleash widespread environmental destruction and mayhem across India.”
His party colleague and former environment minister Jairam Ramesh, who is also the chairman of the Rajya Sabha Parliamentary Standing Committee on Science and Technology, Environment, Forests and Climate Change, has been engaged in a ‘letter war’ with the current environment minister, Prakash Javadekar, calling the
EIA draft “anti-democratic, anti-public health and anti-cooperative federalism”. Congress’s new-found ally, the Shiv Sena, also joined the bandwagon with its leader and Maharashtra environment minister Aaditya Thackeray claiming the new draft failed to align with the 2016 Paris climate agreement and posed a threat to the goal of sustainable growth.
Javadekar has slammed the critics for “jumping the gun”, saying the notification is only a draft and all public concerns will be addressed in the final version. “There have been 55 amendments to the 2006 EIA notification and 230 office memorandums issued. The EIA 2020 notification is only a compilation of these changes,” he told india today. Some experts do agree that the new draft formalises and streamlines several ad hoc processes. “By and large, the scheme of things developed in the draft notification appears sensible,” says Promode Kant, director, Institute of Green Economy.
The environment ministry has been examining the 1.8 million public views it has received on the EIA before finalising the notification. Meanwhile, on August 5, the Karnataka High Court issued an order to the MoEFCC restraining the publication of the final notification till September 7. A division bench said: “Prima facie, it appears to us that the right of citizens to file objection has been taken away.”
“The EIA touches on ecological damage and economic benefit assessment but not in detail. No listing and estimation of damage costs and loss in economic benefits is provided which leaves it open to different interpretations”
MADHU VERMA Chief economist, World Resources Institute
The controversies
The most controversial change in the notification is Clause 22 which allows projects running without environmental clearance to seek fresh permission and get away with the violation by paying a penalty. Critics see this “ex post facto” approval as a gross violation of the mandate given to the environment ministry. “It will turn the EIA process from being one of prior approvals to that of post-facto clearances,” says Kanchi Kohli, environmentalist with the Centre for Policy Research.
The provision, however, is not new. In May 2002, a circular issued by the environment ministry in the first NDA government allowed industries that had commenced operations without getting green clearances to obtain the same by 2003. It was supposed to be a “last and final opportunity” for errant projects. The Congress-led UPA government then issued three office memorandums in 2010, 2012 and 2013 granting ex post facto approvals to several projects.
In January 2016, the National Green Tribunal (NGT) held that the May 2002 circular was contrary to the law. The NGT issued instructions to revoke the approvals and shut down the industries. In March 2017, the MoEFCC passed another notification stating that any project functioning without prior approval could apply for environmental clearance. Meanwhile, the committee of the environment ministry held more than 30 meetings to clear hundreds of such projects that violated environment clearance norms. This, despite a Supreme Court verdict in August 2017 saying that “the grant of an ex post facto environmental clearance would be detrimental to the environment and could lead to irreparable degradation of the environment”.
The apex court reiterated its stand in April this year while hearing a case related to three Gujarat industrial units operating without valid environment clearances. It also upheld the 2016 NGT order. But while penalising the errant industries, the apex court decided against their closure, saying “the directions of the NGT for the revocation of the environmental clearances and for closure of the units do not accord with the principle of proportionality”. In 2011, too, in the Lafarge Umiam Mining vs Union of India case, the SC had applied the doctrine of proportionality and held that non-compliance could not lead to closure of an establishment.
Industry watchers welcome the move. “This is an opportunity for violators to become compliant; a window for them to join the mainstream with no guarantee that the appraisal process that they are signing up for will give an outcome in their favour. If we can put in a cut-off date with this provision, this is a welcome step to mainstream the defaulters while not encouraging them,” says Yasir Ahmad, partner, sustainability and responsible business advisory, PwC India.
Javadekar emphasises that the violator also has to put in place a remedial plan for environmental damage the project may have caused, accounting for 1.5 times of the assessed ecological damage and economic benefit derived due to violation. And if there is a pollution load, the violator will have to pay a polluters’
“Environment and development are seen as trade-offs, which isn’t the case. The government must do a comprehensive cost-benefit analysis, including the impact of development on nature and natural capital. This EIA has not done that”
PUSHPAM KUMAR Chief environmental economist, UN Environment Programme (UNEP)
fee separate from the violation penalty. “The provision for more penalty is a welcome move. The funds accumulated through these penalties could be put to use for protection of the environment,” says Vinitaa H. Apte, founder-director, TERRE Policy Centre.
Several other experts, however, point out that with the poor compliance record in India, such encouragement to “regularisation of violations” may result in more accidents such as the LG Polymers gas leak in Visakhapatnam in May and the Baghjan oilfield fire in Assam in June. LG had been operating without valid environment clearance since 2017. Even if the environmental clearance for such a project gets rejected, the damage done to the environment is irreparable. “The notification touches upon ecological damage and economic benefit assessment but they are not interpreted in detail. No such listing and estimation of damage costs and loss of economic benefits has been provided, which leaves it open to being interpreted differently by different people,” says Madhu Verma, chief economist, World Resources Institute, a global research organisation.
The new divisions
The draft notification defines three project categories—A, B1 and B2—based on environmental and geographical impact. The EIA also provides for two
kinds of approval—prior environment clearance (EC) with the approval of expert committees and environmental permission/ provision (EP) without their approval. Some of the projects in category B2 don’t need EC or EP. Critics allege it is to ensure easy clearance that the draft seeks to move a large variety of projects to the B2 category.
Under Clause 26 of the EIA draft, 40 types of industries/ works such as clay and sand extraction or digging wells or foundations of buildings, solar thermal power plants and common effluent treatment plants have been exempted from prior EC or EP. So are all inland waterways projects and expansion/ widening of national highways. Critics say these exemptions will result in a lack of scrutiny; in 2016, 100 industrial clusters in India were categorised as severely/ critically polluted.
The new draft also exempts any project the government labels ‘strategic’ from the EIA’s purview. Javadekar claims the security agencies will define what is strategic and what is not, but experts are sceptical. “I have no objection to environmental clearance being given to defence projects. National security can’t be compromised. But the government must make a distinction between operational structure and non-operational structure while giving blanket clearance,” says Debi Goenka, executive
trustee, Conservation Action Trust.
The requirement for public consultations has been done away with for several categories such as modernisation of irrigation projects, projects located within notified industrial estates, highway widening, building construction, all projects concerning national defence and security, all linear projects such as roads and pipelines in border areas, and offshore projects located beyond the 12 nautical miles limit. This, according to several experts, takes away from the democratic right of those affected by these projects and dilutes the transparency of the EIA process.
Javadekar claims to have taken away only MSMEs and industries with clean technologies from the realm of public hearing. “The 2006 notification provided exemptions from public hearings for nine categories. We have brought this down to seven. There were 19 sectors which did not require public hearings during the UPA regime. We removed 17 critically polluting industries such as cement, thermal power, steel, paper from this list,” he says.
Critics have also questioned the definition of border area—land falling within 100 km aerial distance from the Line of Actual Control with bordering countries of India—as this will cover much of the Northeast, the repository of the country’s richest biodiversity.
“Javadekar’s job is to protect the environment. His job is not to build roads or ports. That’s Nitin Gadkari’s job. Javadekar must ensure that Gadkari’s projects don’t impact the environment adversely”
DEBI GOENKA Executive trustee, Conservation Action Trust “The government says the changes in EIA have been brought in response to court judgments over the past decade and driven by the commitment to cut delays in project implementation. By and large, the scheme of things developed in the EIA draft appears sensible”
PROMODE KANT Director, Institute of Green Economy
CRITIQUE: The draft Environment Impact Assessment (EIA), 2020 dilutes the existing norms formulated in 2006, making it more industry-friendly while ignoring concerns about the environment. JAVADEKAR: EIA 2020 is just a compilation of 55 amendments to the 2006 EIA notification and the 230 office memorandums issued later to make changes.
C: EIA 2020 provides for ‘ex post facto’ clearance, allowing projects running without environmental clearance to seek fresh permission and get away with the violation by paying a penalty.
J: The process does not amount to giving ex post facto clearance; provision has been in practice since 2002. The new EIA has increased the scope and quantum of penalty.
C: The Supreme Court has ruled that the concept of “ex post facto environmental clearance” is against the fundamental principles of environmental jurisprudence; so the government has violated the court order J: In the same order, and on earlier occasions, the SC and high courts invoked the doctrine of proportionality and held that non-compliance on environment clearance cannot lead to closure of an establishment.
C: 40 different types of industries have been exempted from prior environmental clearance.
J: The majority of these exemptions were given during the UPA regime.
C: The new draft exempts any project the government labels ‘strategic’ from the purview of the EIA. The government will also not disclose any information to the public on such projects. Projects could be categorised ‘strategic’ to avoid public scrutiny.
J: Security agencies will define what is strategic and what is not.
C: The requirement for public consultations has been done away with for several categories, taking away the democratic right of those affected by these projects and diluting transparency of the EIA process.
J: Only MSMEs and industries with clean technologies have been exempted. The 2006 notification exempted nine categories from public hearings. That has been brought down to seven. There were 19 sectors which did not require public hearings during the UPA regime. Now 17 critically polluting industries such as cement, thermal power, steel, paper have been removed from this list.
C: The notice period for public hearing has been reduced from 30 to 20 days. J: Nowadays, modes of communication are so fast that 20 days is good enough for this process.
C: Violations can be reported only by the government and the project proponent and not by citizens. How can the violator be expected to report his own violations?
C: The 2006 notification mandated that a project compliance report be filed every six months. This has now been extended to once a year, allowing violations to go unscrutinised for a longer period of time and increasing the risk of serious damage to the environment J: There is nothing wrong in filing the report yearly. The emphasis should be on ensuring that these reports are read and action taken. The government is working towards this.
C: The EIA makes categorical division of A, B1 and B2 industries. Earlier states were given the discretion to make these distinctions.
J: If one state bracketed an industry in category A, another state placed the same industry in category B. This created confusion, so the Centre streamlined it.
C: The ministry’s decision to appoint State Environmental Impact Assessment Authorities (SEIAA) was against the spirit of cooperative federalism.
J: It’s the right of the Centre to nominate members to the SEIAA. For the past three years, several states such as Delhi and Jharkhand have not nominated names for their SEIAA despite repeated reminders. So, the Union government stepped in.
C: The draft excludes construction of buildings of less than 150,000 sq. m.— the size of a stadium—from environmental clearance. J: The 2006 notification says that the EIA and public hearings are not required for buildings up to 150,000 sq. m. This will be reduced to 50,000 sq. m. now. But green buildings will still not require any EIA clearance. Anyone can bring violations to the notice of the government. Action will be taken where required.
This criticism fails to deter the environment minister’s conviction about national security concerns. The minister also shrugs off the reduction of the notice period for public hearing from 30 days to 20 as a minor issue. “Nowadays, modes of communication are so fast that 20 days is good enough for this process,” he says. On the Clause 22 subclause (1) of the draft—that violations can be reported only by the government and the project proponent themselves and not by citizens—he had this to say: “Anyone can bring a violation to the notice of the government. Action will be taken where required.” The 2006 notification mandated that a project compliance report be filed every six months. This has been enlarged to once a year, which again has many experts crying foul. But more than anything else, they demand a more transparent and accountable mechanism in the EIA process. “The EIA is a challenging scientific process that cannot be trivialised. It must be conducted by competent individuals/ agencies with the necessary expertise. There must also be a strict examination of conflict of interest between the individual/ agency conducting the EIA and the project proponent,” says Prof. Renee M. Borges, Centre for Ecological Sciences, Indian Institute of Science.
The powerless states
The EIA 2020 draft has also drawn criticism for “denying” the states discretionary powers. For instance, unlike in the past, the EIA makes categorical division of A, B1 and B2 industries. Earlier, states were given the discretion to make those distinctions. “If one state bracketed an industry in category A, another state placed the same industry in category B. That created confusion, so we streamlined the division,” says Javadekar.
But there was no confusion in the mind of Ramesh when he termed the environment ministry’s decision to appoint State Environmental Impact Assessment Authorities (SEIAA) as “yet another nail in the coffin of cooperative federalism”. Javadekar blames it on the indecisive nature of some states. “It’s the right of the Centre to nominate members to the SEIAA. For the past three years, several
“The EIA has nothing new. It’s a regularisation of various processes that have been going on through amendments and official orders since 2006. The credit and blame for this new notification have to be shared by all governments”
VINITAA H. APTE Founder director, TERRE Policy Centre “The EIA is a challenging scientific process that cannot be trivialised. It must be conducted by competent individuals/ agencies. There must also be no conflict of interest between the individuals/ agency conducting the EIA and the project proponent”
PROF. RENEE M. BORGES Centre for Ecological Sciences, Indian Institute of Science
states such as Delhi and Jharkhand have not nominated names to their SEIAA, despite repeated reminders. So we stepped in,” he says.
Despite Javadekar’s counters, conservationists are not enthused by the Modi government’s stated objective— speeding up clearance of files in the green ministry. In fact, there has been a growing clamour for the need to not see economic development and environmental protection as tradeoffs. Over 60 per cent of the global GDP is dependent on natural resources, the reason why the World Economic Forum recently said that climate change and biodiversity loss are the two of the biggest threats to business and industry. Lamenting the decline in India’s natural capital between 1992 and 2014, Kumar says the authorities must take serious note of this to reverse the trend: “An effective EIA can ensure this, which in turn will help industry and business.”
Javadekar agrees that protecting the environment and ensuring sustainable growth are essential. “We are among the few countries who have been walking the talk on the Paris agreement. We promised 35 per cent reduction of emission intensity by 2030, and we have already achieved 21 per cent. We have added 15,000 sq. km to our forest cover. We have also taken up a target of restoring 26 million hectares of degraded land,” he claims. If true, these are commendable achievements. But there is no place for complacency for the government in a country which is among the worst 15 in the world when it comes to meeting environmental goals.