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DRAFT EIA NOTIFICATION 2020: A ‘TOOTHLESS TIGER’

As per the World Health Organization (WHO)1, 1.5 millionpeople in India died because of pollution in 2012. According to Swiss-based IQ Air Visual report 20192, out of the top 30most polluted cities worldwide, 21cities are in India. The above data shows that India is at high risk and the need of the hour is to take strict preventive measures. The EIA draft 2020 was expected to strengthen the laws of environmental protection and to impose severe restrictions on new industries to protect the environment. However, EIA 2020 has been modified from pro-environment to pro-industry rather than balancing between the two.

What is EIA and Why It Is Being Criticized?

In 1984, India suffered a horrendous Bhopal Gas Tragedy, which questioned the environmental laws of the country. Therefore to prevent such environment disasters further, India came up with the Environmental (Protection) Act, 19863. In 1994, India issued its first Environment Impact Assessment (EIA)norms which scrutinize all the development projects before setting up. The EIA process scrutinizes the pros and cons of a proposed project or developmental impact on the environment. In 2006, these norms were reviewed and now again has been revised and published as EIA notification 2020 by the Government.

The Government of India has published the Environment Impact Assessment (EIA) notification, 2020 dated 11th April 2020 by the power conferred in section 3(1) and 3(2) (v)4 of the Environment (Protection) Act, 1986.

A writ petition was filed titled as Vikrant Tongad vs. Union of India5 in the Delhi High Court against the notification to give relaxation in the filing of objections due to the Covid-19 lockdown.

The Delhi High Court ordered to publish the notification at least in the languages mentioned in Eighth Schedule6 of the Constitution of India. Also, the Court ordered to file objections till 11th August 2020.

Some of the Features of EIA Notification 2020 Which are Problematic

Ex Post Facto Environment Clearance

Ex post facto environment clearance means that a project could be established without being cleared by environment norms. Ex post facto clearance is based on the principle of ‘Pollute and Pay’ approach. Under Clause 26 of EIA draft 2020, 40 different types of industries would get the benefit of prior environmental clearance. More notoriously, the 2020 draft legalized the prior projects which were established without environmental clearance before the commencement of the new draft. Recently, Vizag Gas Leakwas a prominent example of prior Environmental clearance.

However, in 1996, the Supreme Court discourages the ex post facto environment clearance in the landmark case of Vellore Citizens Welfare Forum v Union of India & Ors7. Then in 2018, the Supreme Court reiterated the discouragement in Common Cause v. Union of India8. The National Green Tribunal held that Ex Post Facto Clearance is illegal, void and Inoperativein 2016. Further, in April 2020, Apex Court in Alembic PharmaceuticalsLtd. v. Rohit Prajapati and others9ruled that “Ex Post Facto Environment Clearance is unsustainable in law.”

The cases mentioned above are the indication that the prior environmental clearance would be dangerous for the environment and arbitrary to the environmental jurisprudence. The post-facto approval should not be considered in this act. If considered, most of the illegal work may be considered as legal. This way environment can’t be protected.

Violator as Complainant

The 2020 draft consists of a lot of vague proposals in which the most vulnerable is clause 2210 which directs on who could file a complaint against the transgressor. Interestingly, transgressor itself or government authorities can file a complaint against any violation of the law. It is like a thief filing complaint against self for theft. Moreover, this clause points out that the Government wants to circumscribe the interference of citizens in decision making. It is a pro-industry clause as it reduces the checks on industries, and this can drastically impact our environment.

Reduced Monitoring of The Projects

The monitoring process by the Government is to keep check whether the firms are being adhered to the clearance conditions or not. The EIA draft 2006 set a monitoring frequency to twice a year. The 2020 draft was expected to strengthen the monitoring process instead it dilutes it by changing frequency to once a year.

Reduction in The Public Consultation Time Period

As per the EIA notification 2006, public objections were given the preference, and they were heard by EAC properly. The objections were strictly considered by the Ministry Of Environment, Forest and Climate Change (MoEFCC), the regulatory body. The new notification has hurt the idea of making EIA because it has reduced the time period from 30 days to 20 days for the public response on the projects. The projects affected peoples who are generally tribal people or forest nomads, do not have access to information and technology, making it harder to give their opinion. Thus, an attempt has been made by this clause to eradicate public participation in governmental projects. To provide fast track clearance to industries, the Indian Government has put aside these obligations and introduced an aggressive policy.

This is in violation of many decisions of the apex court of India. The Supreme Court of India has laid down in many judgments that the consultation time with the public must be adequate otherwise it is a violation of natural justice. In the Samarth trust case11, the Delhi High Court has laid down that the EIA is a part of participatory justice in which community is a jury and voice is given is to the voiceless in decision making.

Also, India is a party to the Rio declaration. This notification also undermines Principle 10 of the Rio Declaration12 which lays the importance of public opinion in the regulatory and decisive process regarding industrial development that may harm the local environment.

Exempt From Public Consultation

To provide fast track clearance to industries, the EIA 2020 has exempted a list of projects from public discussion. This clause is highly criticized by environmentalists and climate change activists in the country. It exempts the public from giving any consultations regarding irrigational projects, expansion of highways, building constructions in border areas. The border area is defined in the notification as to the area within 100 kilometers from the Line of Actual Control. This would cover the whole of the North East, which has very rich environmental reserves. By the new notification, Government can declare any project as ‘strategic project’, and no information regarding the project will be given to the public.

Also, the new notification has allowed red and orange toxic industries to be operational within 0 to 5 km of the protected areas. Various environmentalists had posed this as a danger to the natural habitat of the country and sources of water. The new notification will strengthen the discretionary power of the Government and limiting the voices of the affected.

The Way Ahead

Recently, the Ministry of Earth Sciences held first ‘Assessment of Climate Change over Indian Region’13 regarding environmental concerns in India. The report provided by the Ministry highlighted the deplorable condition of the environment over the Indian region. The report further stated that since 19012018 Surface Air Temperature had risen by 0.6-degree Celsius. The Ministry advised that mitigation measures should be adopted soon. The EIA draft notification 2020 has augmented environmental disasters and has tried to eschew the importance of a sustainable environment.

This notification does lean towards industrial development rather than balancing between the development and environment. This notification might benefit a few people, but it will be hazardous for the environment. It might attract and make ease to Foreign investments but at the cost of environmental misuse. India cannot endorse ‘Pollute and Pay’ bogus environmental law.

Web censorship has been imposed on many environment concerned websites like Fridays for Future by putting them down. This act shows the Governments attempt to silence any voice against the draconian notification and to sweep away the pro industrial draft silently. By this notification, Government has tried to recast EIA into a ‘toothless tiger’.

We like the fact that people are coming forward to save the environment and take the matter to court against peculiar EIA notification. The Delhi High Court extended the window for public feedback till 11th August 2020 because of mounting pressure by the people. The suggestions would be sent at eia2020-moefcc@gov.in and its time to show the power of responsible citizens to stop controversial sections of EIA draft from being introduced as law.

References

1 WHO on Air Pollution in India Available here

2 Report on polluted cities available here

3 THE ENVIRONMENT (PROTECTION) ACT, 1986 Available here

4 Id. At Sec 3

5 Vikrant Tongad vs. Union of India, [W.P.(C) 3747/2020 & CM APPL.13426/2020] see judgment

6 Eight Schedule of Constitution here

7 AIR 1996 SC 2715

8 2014 AIR SC 1556

9 Civil Appeal No. 1526 of 2016

10 Clause 22 of EIA notification 2020 pdf

11 Writ Petition (Civil) No. 9317 of 2009

12 Rio Declaration draft available here

13 Report Pdf available here

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