Environment Impact Assessment (EIA) Notification, 2020
The Ministry of Environment, Forest, and Climate Change (MoEF & CC) has published the Draft Environment Impact Assessment (EIA) Notification 2020 on March 12, 2020 with the intention of replacing the existing EIA Notification, 2006 under the Environment (Protection) Act, 1986.
Under the Environment (Protection) Act, 1986, India notified its first EIA norms in 1994, setting in place a legal framework for regulating activities that access, utilize, and affect (pollute) natural resources. Every development project has been required to go through the EIA process for obtaining prior environmental clearance ever since. The 1994 EIA notification was replaced with a modified draft in 2006. The new draft EIA Notification proposed by the Union government recently is a regressive departure from the 2006 EIA and would supersede it.
An EIA notification is issued under Section 3 of the Environment Protection Act, 1986 to impose restrictions on setting up new projects or expansion or modernisation of existing projects. The section stipulates that such measures must benefit the environment.
Environmental Impact Assessment or EIA is the process or study which predicts the effect of a proposed industrial/infrastructural project on the environment. It prevents the proposed activity/project from being approved without proper oversight or taking adverse consequences into account. The EIA notification regulates the process of environment clearance which is required by projects such as dams, mining, thermal power plants, highways, ports, airports and townships.
KEY FEATURES OF EIA 2020
The two most significant changes in the new draft are the provisions for post-facto project clearance and abandoning the public trust doctrine. Projects operating in violation of the Environment Act will now be able to apply for clearance. It is a reiteration of March 2017 notification for projects operating without clearance.
All a violator will need are two plans for remediation and resource augmentation corresponding to 1.5-2 times “the ecological damage assessed and economic benefit derived due to to violation”. For such late applications, a developer will have to cough up ₹2000-10000 per day for the period of delay. Consider the impact of this penalty on, say, an illegal sand miner who takes out several truckloads every day.
The 2020 draft also spells out how the government will take cognisance of such violations. It has to be reported either by a government authority or the developers themselves. There is no scope for any public complaint about violations. Instead, the reliance is on the violators to disclose, suo motto, that they broke the law. The Draft Notification 2020 now makes environmental clearances easier by placing such projects under Category B2, which removes them from environmental appraisal at the Centre and also specifically exempts building construction and area development projects, along with many other types of projects, from the need to conduct public consultations before seeking environmental permission.
Mining projects have been given much more leeway in the Draft Notification by extending the duration of environmental clearance from the earlier 30 years to 50 years, this full duration now being considered as part of the “construction phase.”
Under Para 26, the Draft Notification exempts Solar Photo Voltaic (SPV) power projects, solar thermal power plants, and solar parks, despite well-known environmental impacts, including diversion of agricultural land, demand on subsoil water, etc. Exemption is also given to “coal and non-coal mineral prospecting,” which can cause considerable ecological damage, quite apart from the larger extraction projects that may follow.
The objective of the draft is to be environmentally friendly but instead, it is pro-industry and anti-people. This notification would cause a landmark shift in the way clearances are obtained in the country. The EIA new draft 2020 allows post-facto clearance. This means that even if a project has come up without environment safeguards or without getting environment clearances, it could carry out operation under the provision of the new draft EIA 2020.
The draft offers no remedy for the political and bureaucratic stronghold on the EIA process, and thereby on industries. Instead, it proposes to bolster the government’s discretionary power while limiting public engagement in safeguarding the environment. While projects concerning national defence and security are naturally considered strategic, the government gets to decide on the “strategic” tag for other projects. The 2020 draft says no information on “such projects shall be placed in the public domain”. This opens a window for summary clearance for any project deemed strategic without having to explain why. This gives a virtual carte blanche to the government who could, for instance, define nuclear power projects, oil installations, etc as “strategic projects.” All such projects are also exempt from public hearings.
Additionally, the new draft exempts a long list of projects from public consultation. For example, linear projects such as roads and pipelines in border areas will not require any public hearing. The ‘border area’ is defined as “area falling within 100 kilometres aerial distance from the Line of Actual Control with bordering countries of India.” That would cover much of the Northeast, the repository of the country’s richest biodiversity.
India’s Environment Minister Prakash Javadekar complaint to Delhi Police against the mass emails to his inbox led to action against three environmental collectives – Let India Breathe, Fridays For Future India and There is No Earth B. The three websites were blocked and the police issued a notice under the stringent anti-terror law, which it later withdrew claiming there was an error.
Following the minister’s complaint, the Cyber Crime Unit of the Delhi Police issued a notice on July 8, 2020, to Fridays For Future India, under India’s anti-terror law, the Unlawful Activities Prevention Act (UAPA). The use of this law in this particular case drew criticism for its severity. The police then claimed inadvertent error and withdrew that notice on July 16. Currently, the websites have been unblocked, though individual claims about certain internet service providers that are continuing to block the websites still prevail.
Almost around 15 law colleges and over 1600 students across India have sent a letter to the Ministry of Environment, Forest and Climate Change (MoEFCC), seeking the withdrawal of the draft Environmental Impact Assessment (EIA) 2020. The draft was put in the public domain on March 12 by the Ministry of Environment, Forest and Climate change (MoEFCC) with a time period of 6o days for views and comments from all stakeholders and has been now extended till August 11th after Environmentalists approached the Delhi High Court. Draft notifications further devalues public consultations and public hearings, at one time a major safeguard against flagrant violations and favouring participatory governance, but of late being continually degraded and undermined. The 2020 draft lists numerous types of projects which are exempt from public hearings.
1. EIA 2020 Draft http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf
ABOUT THE AUTHOR
This blog has been authored by Divya Chowdary V. who is a 4th Year B.A., LL.B. (Hons.) student at Damodaram Sanjivayya National Law University, Visakhapatnam.
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