Analysis on Environment Impact Assessment (EIA) in India by Advocate Himanjali Gautam (Supreme Court of India)

Abstract

Sooner or later, we will have to recognize that the Earth has rights, too, to live without pollution. What mankind must know is that human beings cannot live without Mother Earth, but the planet can live without humans.”– Evo Morales. This article will discuss in length the whole environment impact assessment in India and what the criticisms of environment impact assessment draft 2020 are.

Introduction

Environment protection is one of the important issues in India. The environment always clashes with industrial development. The state and Centre have to come up with legislation that will balance both environment and industrial development on the same path. To balance the same, the Ministry of Environment, Forest, and Climate Change came up with the Environment Impact Assessment (EIA), Draft 2020[1]. An EIA is a process for evaluating the likely environmental impact of a proposed project; it will evaluate the amount of damage caused to the environment due to the proposed project[2]. The EIA draft 2020 was prepared for public consultation or in accordance with the direction of the regulatory authority[3]. So, to get the public consultation, the government has left the forum open till 11th August 2020[4]. The Indian constitution provides a duty on the state to protect and improve the environment and to safeguard the forests and wildlife of the country[5]. And also, the Indian Judiciary in the number of judgments observed that under the article-21 right to life includes the right to a clean environment[6].

The environment Minister Prakash Javadekar once stated that “The Ministry has taken several policy initiatives and enacted environmental and pollution control legislation to prevent indiscriminate exploitation of natural resources and to promote the integration of environmental concerns in development projects”[7]

Historical Background

The roots of the Environment Impact Assessment can be traced from the United States of America, where it was enacted in 1969 through the National Environmental Protection Act (NEPA)[8]. In India, the idea of Environment Impact Assessment can be traced back from 1976-77, where the planning commission recommended the Department of Science and Technology to analyze the river-valley project from the point of the environment[9]. In the year 1994, the Ministry of Environment and Forest and the Government of India promulgated the mandatory provision stating that it is mandatory to obtain the Environment Clearance Certificate before setting up new projects, which has to align with the Environment Protection Act, 1986. In 2002, an amendment to the EIA was made, which states that Environment Clearance Certificate is not required for the High-Level Investment projects; here the government is concerned with industrial development and not the environment. In the 2003 amendment, the government reiterated the idea of mandatory environment clearance and stated that any project in a high area and/or within a 15 km radius of a sensitive ecosystem or the protected area would require environment clearance; this amendment aligns with the Bio-Diversity Act of 2002. Similarly, the 2005 amendment states that on case to case basis the government has provided temporary working permission for a period of two years without having any environment clearance; this led huge exploitation of the environment. In the year 2006, a new EIA 2006 notification was drafted to replace the 1994 notification[10]. The 2006 notification divided all the projects into two categories, where one category needs environment clearance from the central government and the other category needs environment clearance from the state government.

The illegality of post facto environmental clearance has never been in doubt. The Supreme Court declared in Common Cause vs. Union of India[11] that “the concept of ex-post facto or retrospective EC is completely alien to environmental jurisprudence including EIA 1994 and 2006”. In Alembic pharmaceuticals case,[12] the Supreme Court even explains lucidly why such post facto clearance should not be the norm. In Indian Council for Enviro-Legal Action Vs Union of India and Others[13], the Hon’ble Supreme Court observes that Enactment of a law, but tolerating its infringement, is worse than not enacting law at all. Perhaps, the enactment of a law and diluting it to the point of redundancy is far worse than tolerating the violation of the law. 

Judicial Approach

1. In the case of Vikrant Tongad vs. Union of India, the issue is concerning the extension of the time to submit the feedback form by the public, as per the facts the Ministry of Environment, Forest, and Climate Change issued the draft of EIA 2020 in the month of March and allowed the period for the feedback till 60 days (i.e. June 11th, 2020) from the date of such issuance(i.e. April 11th, 2020) and later on due to the Covid’19 restrictions the ministry has extended the period of feedback to another 60 days but last cut-off date was mentioned till 30th June 202[14]. In this case the Delhi High court clarified that the time limit to file the objections to the draft notification is up to 11th August 2020.

2. In the case of Union Conservation Movement Charitable and Welfare Trust vs. Union of India, the petitioner claimed that the organization has many objections concerning the draft EIA 2020 notification and there was a severe lack of publicity, but due to the lockdown restrictions, they can’t effectively communicate the same to all its members. The High Court of Karnataka directed the ministry to take sufficient steps to publicize the draft notification so that everyone will know and will give the objections and also stated to translate the draft into all 22 languages which are recognized in Schedule by the Indian Constitution. 

3. In the case of the Department of Mines & Geology, the state of Punjab vs. State Level Environment Impact Assessment Authority, Punjab, and the appellant filed an environment clearance application before the State Expert Appraisal Committee (SEAC) for mining minor minerals from the river, where the State Expert Appraisal Committee granted the environment clearance[15]. The respondent issued the notice to the appellant to show cause why miming environmental clearance granted and not pleased with the appellant response and cancelled the clearance. The appellant challenged such cancellation where the court observed that the revocation was valid because the expert committee report shows that the ground reality was different from what was projected by the appellant in its application filed by the appellant for the grant of the environmental clearance.

4. In the case of T.N. Godavarman Thirumulpad vs. Union of India, the supreme court observed that the mechanism under the EIA notification dated 19.09.2006 issued by the government about processing, appraisals, and approval of the projects for the environment clearance is deficient in many aspects and what is required is a Regulator at the national level having its offices in all the states which can carry out an independent, objective and transparent appraisal and approval of projects for environmental clearances and which also monitor the implementation of the conditions laid down in the environmental clearances.[16] 

Criticism On Environment Impact Assessment Draft, 2020:

  1. The first and foremost criticism against the Environmental Impact Assessment draft 2020 is that the draft failed to recognize the rights of Adivasi’s, who have most affected the community, and also there is no mention of the word ‘Adivasi’ in the whole notification.
  2. The draft states that if any project is named as strategic by the central government then those projects which are named as the strategy can function without getting any environmental clearance. Here one can observe that the central government has discretionary power so that even though the state did not accept the project, the central government can bypass the state decision and can allow the project by inserting the project under the strategic category.
  3. The draft allowance posts facto clearance which means that any project can start its functioning without getting the clearance certificate and letter by paying a small fee the project can apply for environmental clearance.
  4. The response time for the public to give feedback regarding a project is reduced from 30 days to 20 days. This draft neglected the scope for public complaint, which is a violation of freedom of speech and expression under article-19 of the Indian Constitution.
  5. Many important industries that need public consultations like petroleum, mines, dams, and highways are exempted from the environment impact assessment process.
  6. This draft state that the projects which are exempted from environmental clearance are also exempted from wildlife clearance.
  7. As per the 2006 environment impact assessment with clans’ grasslands and Marsh, lands are considered as ecologically sensitive areas but this has been removed by the new draft of 2020 from the category of the ecologically sensitive area
  8. Earlier as per 2006 notification the exemption was given to projects that will occupy the land of 20,000 sq. mts. but the 2020 draft increases the land limit to 150000 sq. mts. 

Conclusion:

The Indian constitution imposes a duty on the state to protect and improve the environment and to safeguard the forests and wildlife of the country. EIA is a good tool to evaluate and assess the impact of any industry or any construction over the environment. That is why it is critical to have a balanced law for the same. Its initiation can be traced during the mid-twentieth century. Recently, government presented EIA Draft 2020 which has certain very significant loopholes like absence of “Adivasi” from the whole draft, lethargic laws for the compulsion of EIA, unreasonable exemption of states from wildlife, etc. These all are very significant issues regarding the seriousness of the government for environment. There are many provisions clashing the interest of the society as well as the environment. Thus, it deserves to have a close inspection of EIA Draft 2020 again.

ABOUT THE AUTHOR

The Author, Adv. Ms. Himanjali Gautam is an Advocate at the Supreme Court of India, Founding-Partner at Chambers of Himanjali Gautam, Ex-President- Law Centre 2, Faculty of Law DU, Columnist, Public Speaker and TV Personality.

You may reach out at- chambersofhimanjaligautam@gmail.com 

Twitter Handle- @himanjaligautam

Linkedin Account: linkedin.com/in/himanjali-gautam-b76320a3

REFERENCES


[1]G.Ananthakrishnan, What are the Key changes in the Environment Impact Assessment Notification 2020?, THE HINDU, Aug. 2, 2020, 11.22 AM),  https://www.thehindu.com/sci-tech/energy-and-environment/the-hindu-explains-what-are-the-key-changes-in-the-environment-impact-assessment-notification-2020/article32249807.ece  

[2] What is EIA2020? How does it water down the existing policy?, THE WEEK, (Aug.10, 2020 12;24 AM),

https://www.theweek.in/news/biz-tech/2020/08/10/explained-what-is-eia-2020-how-does-it-water-down-the-existing-policy.html

[3] The Environment Impact Assessment Draft, 2020, §. 3, cl. 23, Acts of Parliament (India)

[4]Asmita Bakshi, EIA Draft 2020: “Violence of Environmental law is seen as development’, MINT,(Aug.17,2020, 10:00 AM), https://www.livemint.com/mint-lounge/features/eia-draft-2020-violation-of-environmental-law-is-seen-as- development-11597593043757.html  

[5]The Constitution of India,1950. Art.48 A

[6] The Constitution of India,1950. Art.21

[7] Srestha Banerjee, EIA notification amended to bring small scale mining under its ambit, Down to Earth, (January 28, 2016), https://www.downtoearth.org.in/news/mining/eia-notification-amended-to-bring-small-scale-mining-under-its-ambit 52628#:~:text=After%20years%20of%20deliberation%2C%20the,mining%20projects%20under%20its%20ambit.

[8]Historical Background of EIA,  https://nitsri.ac.in/Department/Civil%20Engineering/CWE_222_Lectures_19,20,21.pdf (last visited on Feb.6, 2021)

[9] Centre for Science and Environment, https://www.cseindia.org/understanding-eia-383#:~:text=The%20Indian%20experience%20with%20Environmental,projects%20from%20an%20environmental%20angle.&text=The%20MoEF%20recently%20notified%20new%20EIA%20legislation%20in%20September%20200. (last visited on Feb. 6, 2021)

[10] Jay Mazoomdar, Reading the draft Environment Impact Assessment norms, and finding the red flag, Indian Express,(Aug.10, 2020, 10:14 AM) https://indianexpress.com/article/explained/draft-environment-impact-assessment-norms-explained-6482324/    

[11] Common Cause vs. Union of India (2017) 9 SCC 499

[12] Civil Appeal No: 1526 of 2016 dated 01.04.2020

[13] Indian Council For Enviro-Legal Action Vs Union of India and Others 1996(3) SCALE 579

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

[15] Department of Mines & Geology, state of Punjab vs. State Level Environment Impact Assessment Authority, Punjab, MANU/SC/ 1585/2019

[16] T.N. Godavarman Thirumulpad vs. Union of India, MANU/SC/0028/2014

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