Environmental Impact Assessment (EIA) is a process for assessing the impact of planned activities on the environment, wildlife, biodiversity, ecology, air, water etc. The process helps in identifying and evaluating the environmental, socio-economical, or any other possible impact of a proposed project which would ultimately help in deciding the mitigation measures to be taken to reduce any hazardous impact on the environment and our well-being.
EIA is an important tool considering the number of developmental projects being taken up by the government which has severe adverse effects on the environment. It can also keep a check on the dynamics of a proposed project and prevent in advance any such project which can have an adverse impact on the environment and human well-being. More than 100 countries around the world have mandated the process of EIA in their legislations and many international organizations such as World Bank mandate EIA as a condition precedent for any financing to such proposed projects. The EIA further provides necessary information based on which license can be granted to the project proponent or may be revised or rejected.
The Ministry of Forest, Environment, and Climate Change (MOEFF), on 23rd March 2020, issued the Draft EIA Notification 2020 which is purported to replace the EIA Notification 2006 and had put it for a public hearing. But the draft notification has posed serious questions that are yet to be answered by the government.
The key concerns of the Draft EIA notification 2020
i. Diluted the process for particular industries:
The projects seeking environmental clearance have to undergo certain steps such as screening, scoping, public consultation and appraisals. Under the 2006 notification, projects are classified as Category A, B and C. The projects under Category A undergo the process of EIA whereas the Category B projects are further classified as Category B1 and Category B2 projects based on their spatial extents of potential impacts, human health and natural and man-made resources. Only the projects under Category B2 are exempted from the clumsy process. The Draft Notification 2020 includes 43 such sectors that would be automatically exempted from the process of seeking prior environmental clearance.
Further, it classified certain projects undertaken by Micro, Small and Medium Enterprise (MSMEs) such as non-toxic secondary metallurgical process, cement plants, petroleum products, synthetic paint manufacturing, etc as Category B projects which are exempted from the process of EIA and need not submit any EIA report or any appraisals or public hearing. This is not the case in existing EIA Notification 2006.
ii. Flouting the process of Public Consultation:
Public Consultation is a process by which the views of the persons residing in nearby areas of the proposed project and other stakeholders who have a plausible interest are taken into account to ascertain their rights that might be associated with the proposed project. The process of public consultation ensures a fair recognition of the rights of everyone associated and makes the process of EIA more transparent and vigorous.
Now the Draft Notification revised the list of projects that do not require going through the process of public consultation before procuring prior Environmental Clearance and included many other projects in the list which are being exempted from the process. These projects are being exempted by putting them under the labelling “projects involving strategic conditions” as determined by the central government. The Draft also proposes to reduce the timeframe for conducting a public hearing to 20 days from 30 days mandated under the EIA Notification 2006.
The proposed draft under Article 14(c) states that public consultation can be held through any mode based on the nature of the project as may be recommended by the appraisal committee or the regulatory authority on case to case basis. Further, the notification allows the project proponent to engage private consultants for preparing the EIA reports severely flouting the process of public consultation. Also, Clause 17(4) of the draft restricts the amount of information to be made public. It states that only the decision of the regulatory authority and the final recommendations of the appraisal committee are to be made public. This has frustrated the principle of participatory governance by keeping the citizens at abeyance.
iii. Granting of Post-Facto Clearance to projects:
The draft notification permits the granting of de-facto approval of projects that are operational without prior Environmental Clearance. The notification provides for a standard procedure to bring any such violation under regulation. Under the notification, the projects which are operating without any prior Environmental Clearance will have the right to seek approval from the MoEF's Expert Appraisal Committee as long as it is permissible by law and it follows all the environmental norms.
There has been a massive increase in cases concerning violations of EIA; the most recent may be the LG Polymer Gas Leak in Vizag which was responsible for killing 12 people involving 1000 others who are being displaced from their homes. The company was operating without obtaining a valid EC since 2017. This incident reflects that how dangerous it could be granting post-facto clearance to companies without a valid EIA being done.
iv. The period extended for submission of compliance report:
The EIA mandates the Project Proponent to take necessary steps to safeguard the surrounding area of the proposed project based on the issues raised through public consultation or any other assessment being done in the final EIA report. It also replaced the bi-annual compliance report under the EIA Notification 2006 to an annual affair. Further, the draft also increased the period of validity for prior Environmental Clearance in key major industries such as the period of validity in cases of mining was 30 years in 2006 Notification which now has been increased to 50 years by the Draft Notification 2020. Similarly, in projects like a river valley, irrigation and nuclear power projects have been increased to 15 years from 10 years and all other projects from 5 to 10 years.
Why rejection of EIA matters for Assam?
Assam has recently been making news for all the wrong reasons when it comes to environment. The Baghjan fire, which still continues to burn for more than 2 months now, has taken a toll not only on the lives of people who live in the surrounding areas but also on the ecosystem. However, the policymakers have historically had little concern when it comes to pushing forward development activities. The irony in Assam was visible from the recent public outburst to save Dihing Patkai from mining activities.
The area of Baghjan which is hemmed by its tributaries Dangori and Dibru, a part of the Dibru-Saikhowa National Park and the Maguri Motapung Beel, is a village in Assam’s Tinsukia District. On May 27, the oil well No. 5 of Oil India Ltd blew out and started spewing oil and gas uncontrollably shrouding homes, farms, ponds, lakes and rivers alike in a toxic condensate for nearly a full fortnight. But it met with a catastrophe on June 9 when the oil well exploded putting everything on fire that was nearby and also endangering the ecology and life around there. This posed a serious question as to whether it was not foreseeable or preventable?
Interestingly, the oil well existed within the Dibru-Saikhowa National Park’s Economic Sensitive Zone, with the approval of National Board for Wildlife (NBWL) in 2012. The most shocking thing was that although OIL had approached NBWL ostensibly seeking permission to lay their crude oil pipeline, they had already completed most of the pipeline-laying work, leaving only a small unfinished stretch across the Dibru River and Maguribeel. A public sector undertaking has severely flouted the country’s environmental norms.
Also, The Baghjan’s 5 Oil wells are less than a kilometre from the wetlands at the southern end of the Park, a part of the ESZ which is in contravention of the Guidelines for the Declaration of Economic Sensitive Zone and National Wildlife Action Plan. Further, the said well is situated only 900 metres from the aforementioned park and there are 25 such oil wells that are present within the vicinity of the Reserved forest of Dibru-Saikhowa National Park. The Oil India Limited (OIL) had allegedly commenced drilling projects without the approval or clearance from the Expert Appraisal Committee (EAC) under the Ministry of Environment, Forest and Climate Change (MoEFCC) prior to 11.05.2020 in the areas which was a huge concern for the residents and locals in Baghjan. It is evident that even after having a legal framework, the enterprise has severely flouted all the norms for the sake of their own economic interest.
It can be observed from the incidents at Baghjan how Oil India Ltd. had carried out their activities without having any prior clearance which is a mandated process under EIA Notification 2006 and has posed a great threat to the environment and wildlife. Further, Diluting the EIA under the mask of economic development would give a free hand to such industrial companies to exploit the natural resources and cause harm to the environment especially in the case of Assam which pose diverse natural resources and wildlife.
Conclusion
The easing of the process of EIA for industries has made the process redundant and is contrary to the role of MOEFF & CC as a primary guardian. We have already witnessed how the Environment Ministry in April 2020 had cleared major industrial projects within 10 minutes through video conferencing without doing any proper scrutiny or site inspection which can have significant environmental impacts. The granting of post-facto clearance is contrary to the environmental norms and this has been laid down in a catena of judgments by Supreme Court as well as by the National Green Tribunal.
By a judgment dated 8 January 2016, the Bench of the National Green Tribunal for the Western Zone held a circular issued by the MOEFF & CC on 14 May 2002 as contrary to law. The circular paved the way for granting post-facto environmental clearances. The NGT had issued a slew of directions including the revocation of environmental clearances and for closing down those industrial units which are operating without any valid clearance.
The proposed draft requires a revision and a fresh draft should be made on the foundation of environmental law which should not be deplorable to the environment. The amendments must uphold the key principles of environmental law such as the polluter-pays principle, the Doctrine of Non-Regression, etc. There is a dire need for the EIA process to be strengthened further to prevent any adverse effect on the environment and for that very reason, there is a serious need for a comprehensive legislation on EIA governance in the country to avoid any further man instigated disasters.
(Shubham Kashyap Kalita is a 4th-year law student at National Law University and Judicial Academy, Assam. Animesh Anand Bordoloi is a registered advocate at Gauhati High Court and an LLM graduate from the National University of Singapore. The views expressed in the article are their own.)
