13 Aug EIA Notification 2020 – An Unpopular View in today’s Opposing Narrative
Today, the media is rife with opinions being expressed on the Draft Environmental Impact Assessment (EIA) Notification 2020. This is also being echoed in the various professional and environmental groups on social media. Very recently, a letter sent by Mr Jairam Ramesh, Ex-Minister of MoEFCC to Mr Prakash Javdekar, Minister MoEFCC, was being circulated. The letter listed some of the primary objections to the Draft EIA Notification 2020. A few days back, a very misleading and false message was also making the rounds on WhatsApp Groups and Facebook. This message stated that the Draft EIA Notification 2020 will see India lose it entire forest cover within a few years. With these circulating misinterpretations, it is quite clear that opposition to the Draft Notification is focused on issues that are false and completely misleading, also technically wrong.
Every time the government wishes to establish a new law or revise an old one, there is a standard process of inviting suggestions and objections from stakeholders and citizens. A procedural time of 60 days is given for this process. It is expected that during these 60 days, the citizens and interested parties should read the proposed law and record their suggestions and objections with reference to the clauses therein. However, today, typically, we see suggestions and objections being raised in a vague and philosophical manner. The suggestions and, mainly the objections, and mostly, the allegations, are vague and opinionated rather than ones that demand a systematic change to the proposal or the draft published. These larger, often opinionated objections are then published in the media, including the social media in form of personal messages that are often technically unsound in the least and downright misleading at its worst.
The issue of environment has become an emotional one for common citizens. So when such opinionated and vague messages get circulated, it becomes very easy for common citizens to join the bandwagon. As more and more citizens join the fray of opposition, the issue stops being technical and analytical and rather, it takes a political turn. And once it becomes political, the narrative gets split into factions, dividing people’s opinions on the basis of overall ideologies. The technical and legal analysis of an important Notification takes a backseat, and thus professionals and experts tend to remain outside of this discussion. What remain behind are just political allegations!
A clause by clause analysis is an essential part to understand the various opinions, suggestions and objections being expressed in the media. For the past 12 years I am practicing in the field of EIA and thus have a close understanding of the legal provisions, the expectations of the process and also the areas that need strengthening if we wish to see Development alongside Environmental planning & management of our resources. I also know that EIA is a highly techno-legal process that consists of various facets of the environment. It also involves a deep understanding of the developmental projects, their need for the larger society. An EIA expert also has to understand that every human project or activity will have an impact on the environment, whether small or large. So really, the task and scope of a good EIA is to look at ways and means to identify this impact and recommend a Plan by way of which the impact will either be avoided, reduced or compensated. The EIA Notification thus is instrumental in making this extremely difficult process legal and thereby binding on the project. Through this tool, projects come under the compulsions of developing the project with minimal environmental impact and potential conservation actions.
The EIA Notification in itself has a limited scope that of outlining a procedure for assessing development projects, granting them permissions with reference to the conditions of the Environmental Management Plan (EMP) submitted and ensuring that the EMP is implemented on project site during and post execution. The EIA Notification of 2006 was a first of its kind in India under the umbrella Environmental Protection Act of 1986. In the past 14 years, there has been a tremendous economic & infrastructure growth in the country. We have also seen massive environmental degradation despite the existence of EIA Notification 2006. So the opposition solely targeting the Draft EIA Notification 2020 as a potential legislation that will destroy the environment, is ridiculous. Any law , if not implemented as per its intent is the biggest threat to the environment. And that’s what we really need to focus on rather than the changes brought about by the Draft EIA Notification 2020 to streamline procedures and timelines of the EIA study process.
There is a general sentiment in India that when approvals and permits take time, they are to be deemed as stringent and effective. Ease of Business, thus remains solely as a philosophy, because, even each one of us citizens abhor fast approvals and oppose them. So the laws and their procedures end up becoming complex and time consuming and often open to interpretation, leading to administrative corruption. In fact, it’s the time consuming process of the approvals that lead to private (and public) agencies to seek illegal means to save time U& thereby costs.
EIA Notification 2006 consists of many such time consuming and open-to-interpretation clauses and thus there is an urgent need to amend this. Unless amendments are made to streamline timelines and assign roles and responsibilities effectively and bring clarity on the punitive process, we will continue to see non-implementation of prescribed environmental conditions. In this sense, the Draft EIA Notification 2020 is a definite forward step.
While there is significant opposition to some of the eased procedures in EIA Notification 2020, there seems to be no reference made to the small and medium industrial activities that have been newly added under the purview of the Draft Notification. For example, micro hydro electric projects (less than 25 MW) were exempted under EIA Notification 2006, but it now comes under the purview of the Draft Notification. Similarly, there are 22 other industries and sectors that have been added to the Draft Notification, which were exempt in EIA Notification 2006. For example, battery manufacturing and allied industry was not included earlier which now comes under the purview of the Draft Notification.
It is to be noted that any public policy should incrementally or in a stepwise manner include additional legislation to new economic sectors. This is important because additional legislation always adds costs to the economic process and for small and medium scale enterprises (SMEs), these costs can lead to closure of the industry, causing economic distress. Keeping this in view, the newly added small and medium scale industrial activities are required to apply for Environmental Permission (EP). The EP, unlike a Environmental Clearance (EC), is a shorter duration scrutiny by the government based on the Environmental Management Plan submitted by these industries. While, it is less cumbersome, less time consuming and less costly than an EIA study, it still brings some liability to these SMEs in case of environmental non-compliance. These SMEs which remained outside the scope of the EIA Notification, are now under its purview and can be penalized for environmental pollution.
An important process of an EIA study is Public Consultation via a Public Hearing. However, in the EIA Notification 2006, the Public Hearing process is not adequately addressed in terms of all its timelines and procedures. Often, development projects seeking an Environmental Clearance get stuck at this stage due to delayed timeline, many times extending to 2-3 years. While, this is a very important aspect of the process, it was necessary to assign strict timelines to it. The Draft EIA Notification addresses this concerns and thus ensures a stricter implementation. This would ensure that the project proponent, the government and the stakeholders are all bound in a timely redressal of issues and concerns and not cause undue delay to basic infrastructure projects.
Every Notification or Legislation should have a clear clause that defines the punitive action of the government in case of non-compliance. Every legislation needs to have provisions in place for non-complying projects and a way forward on how to deal with projects that have remained in a limbo due to non-compliance even when massive investment has happened for the project. In EIA Notification 2006, these provisions are very cursory and merely mention that non-compliance will lead to criminal action. As a result of this vague provision, in the past 14 years, no court in India has been able to strictly enforce this punitive action. In fact, High Courts in the various States of India and even the Supreme Court and NGT have given numerous verdicts which have led to confusion in the issue of punishments for environmental damage.
Ex Minister of MoEFCC highlights this aspect of DeFacto Environmental Clearances in his objections. He argues that if DeFacto EC provision is made, projects will always opt for this regularization rather than applying for Prior Environmental Clearance. It is important to note that the practice of DeFacto EC will be considerably more time taking, with additional scrutiny and costs. In fact, a more strict EC process will automatically incentivize projects to undertake a regular Prior EC.
We have to also view the Draft EIA Notification 2020 with respect to the changes and rules in other sectors such as Building Bye Laws and Development Control Rules, in case of Building & Construction Projects. If the other rules have become more stringent, it is prudent to let Municipal government tackle these at local level than a Central Ministry spend time and effort for it.
What is sorely missing in the opposition of Draft EIA Notification 2020 is the focus on Implementation of its various conditions. Even today, this aspect of the Notification remains weak. While the 2020 version addresses some critical aspects, EIA Notification 2006 did not have clarity nor a stringent mechanism for checking compliance once Environmental Clearance is accorded to the project. This is where we need to target and focus our energies than opposing stricter and shorter timelines in the Draft Notification.
For the past 12 years that I am practicing in this field, I have come to realise that we, as consultants, The government through its various departments and the Project Proponents spend a massive effort and time and costs into bulky EIA study reports and thousands of papers promising to do everything right for the environment. However, this process gets so convoluted and complex that none of us focus on its effective implementation once the project gets off the ground. A real revolution is needed in bringing this to the fore than seeking merely voluminous paperwork.
In all sense, the Draft EIA Notification 2020 is a revised and improved version of the earlier Notification. Suggestions can always be made to amend smaller and finer points. However, it complete withdrawal as sought by the opposition does not gold ground at all. Implementation of the Notification needs to be focused upon if we wish to really improve the Environment around us. Period.