EIA 2020: OBLITERATING THE ARCHITECTURE OF ENVIRONMENTAL PROTECTION STRIKING THE FUNDAMENTAL PILLARS
This Article has been authored by Varun Wahane and Aranya Chatterjee, students at New Law College, Bharti Vidyapeeth, Pune.
After the 1984 Bhopal gas disaster, the government realized that environmental laws are not sufficient to protect and preserve the healthy environment in the country. Therefore, to frame better laws in 1984, the Indian government introduced the first major legislation post-Bhopal gas tragedy that is the Environment Protection Act 1986 (EPA).
The Central Government, in the exercise of its powers under the Environment (Protection) Act, 1986, issued a Draft Notification in March 2020 to replace and supersede the present 2006 Notification. Several amendments have been made to the rules in this notification and it will change India’s environmental regulatory regime. According to the government, this has been done to make the process more transparent, efficient, and orienting it with the recent judgments of the courts and the National Green Tribunal.
The EPA gives the process of Environmental Impact Assessment E.I.A, which is mandatory requirement of getting an environmental clearance for projects of industrial, governmental, or commercial use. The process is verified to evaluate the impact of a proposed project on development, considering interrelated social-economic, cultural, public health impacts, and positive and negative aspects of the project.
The EIA is done to analyze the impact of a project on the natural resources of the area as well as its impact on the everyday life of the inhabitants of that region. It is the discretion of the environment ministry of the Union Government of India to give the clearance.
Overview of the EIA process
a) Site selection: - A location is selected for the project.
b) Conducting impact analysis: - An analytical assessment is done to ensure that the project is not harmful to the environment or the localities and resources of the area.
c) Application of NOC: - A no objection certificate is granted by the committee.
d) Public hearing: - Public hearing is conducted where the affected people are asked if they have any objection to the proposed project.
e) After the process, the report is given to the Environmental Appraisal Committee and the Committee may release an alternative suggestion such as giving jobs to the people of the area and to plants more trees to compensate for the deforestation in the area.
Weak implementation of EIA
a) Public hearing:-The public hearing was not conducted in the process of EIA in the case of expansion of Jindal Steel and Power Limited land in Chhattisgarh as the local administration did not issue a proper notice of public hearing. In some cases, proponent of the project arranged a large attendance of the public to hijack the process and muzzle dissent. The state-owned oil India limited had mange to get environmental clearances to expand its hydrocarbon testing and drilling activities in the eco sensitive zone of Baghjan area in Assam’s Tinsukia district and a detailed environmental impact assessment (EIA) plan, which were mandatory for getting approval to carry out an oil and gas exploration activity near eco-sensitive zones.
b) Fake EIA reports:- It has been observed that the reports have been completely plagiarized, contained false or concealed facts and figures because of such weak implementation of the EIA process, the localities may face health issues because of chemical reactions from the project which was sanctioned by the EIA order of the Environmental Ministry. This was observed in the past in the Ganga pollution case of M.C. Mehta v. Union of India and in Taj Trapezium case of M.C. Mehta v. Union of India, 1986. In the Visakhapatnam gas leak disaster, the chemical plant did not have any environmental clearance but still operated without objection. Therefore, it is observed largely that EIA procedure is not implemented properly hence such cataclysmic disasters take place.
Problems in the EIA 2020
The government brought a new EIA draft in March 2020, notifying about the changes in the EIA Bill, 2020. The government was open to suggestions on the EIA draft till August 2020. The major problem in the new EIA 2020 Bill is that rather than making the environmental laws stronger it weakens an important environmental safeguard.
1. Post facto clearance:- The new draft allows post-facto approval for the project. The clearance for the project can be awarded even if they have started construction or have been in the running phase without securing environmental clearance. This increases the risks of environmental disasters. The Supreme Court gave the judgment in April 2020 that “ex post facto environmental clearance is in derogation of the fundamental principle of environmental jurisprudence”. It is detrimental to the environment and could lead to its irreparable degradation.
2. Reduction in the time period for public hearing:- A period of 30 days was given in the EIA process for public hearing before any new project could be undertaken, whereas in the new EIA bill 2020 the time limit has been decreased to 20 days for the public hearing process.
3. Exemption from public participation: - If any project violates the environmental law, the public does not have any right to point out or complain about the violation. It can only be reported by the violator or the government itself. This is given under the provision for Suo Moto application by the project proponent. This is completely against the fundamental principles of environmental law protection.
4. Strategic exemptions defined by the government:- In the new draft, it is defined that projects considering national defense or involving other strategic considerations such as data mined by the Central Government will not be opened to public hearing. Further, no information regarding such projects shall be placed in the public domain.
This gives the government complete discretion to claime any project as a “strategic defense” which will not be opened for any public hearing or could be opposed by the people nor can they be notified with any information regarding the project.
5. Additional exemptions from public consultation:- All linear projects under items 31 and 38 in border areas, that is an area coming within 100 kilometers aerial distance from the actual line of control with bordering countries of India, are exempted from having any public consultation.
According to this the whole northeast part of the northeastern part of India can be turned under the border area, can be exempted from the public hearing. This is putting a lot of national parks of northeast India in the risk of misuse under the definition of strategic Defense use for national security.
Consequences of EIA 2020
The above-mentioned problems in the EIA 2020 highlight the need to rebalance our relationship with nature. Here are some consequences which would take place if this policy gets implemented.
a) Advantage of industries:- A reading of the Draft Notification unveils the true intent of circumventing the environmental protections secured by the judicial pronouncements and tribunal rulings by altering and revising the regulations to the advantage of industries.
b) The exploitation of nature:- This will worsen the condition of natural resources in India and give a free hand to the industries to exploit national parks and public gardens under the guise of governmental projects.
c) Corruption:- This will also increase corruption in the administration and have a grave impact on public health. Industries will make a profit doing business with the administration to get more land and resources.
d) Increase in pollution:- A massive impact of environmental pollution has been the Delhi fog in winter; the urban areas do not have any green parks which makes the air clean and reduces the high pollution of the city. Therefore, it is a necessity to protect and preserve the natural parks and other green areas surrounding the cities which will balance the need for better living and help in preventing the environment.
In the Municipal Council; Rartlam vs Sri Vardhaichand & Ors. it was held by the Supreme Court that pollution free environment is an integral part of the right to life under Article 21. The EIA 2020 is in the direction of obliterating the very architecture of the environmental protection in India by striking at one of its fundamental pillars. With the above analysis, it can be observed that such public policy would be beneficial to some individuals but not the public. The industrialists and the government will gain profit from such a policy while the public health will be put to risk. There are higher chances of corruption, manhandling, and public inconvenience a consequence of the implementation of EIA 2020. The public health and environment are incorporated in the Article 21 of the Indian Constitution as a fundamental right. The Constitution under the blanket of fundamental rights protects the environment and the nature to provide healthy surrounding to the citizens. [s1] It was highlighted in the case of, Rural Litigation and Entitlement Kendra, Dehradun and Ors. v. State of U.P. and Ors., that the people do have a right to live in a healthy environment corroborating with the fundamental right of living,
According to Article 48-A of the Indian Constitution, the State shall endeavor to protect and improve the environment and to safeguard the forests and wildlife of the country. Similarly, Article 51-A(g) imposes a fundamental duty of every citizen to protect and improve the natural environment, including forests, lakes, rivers, and wildlife. Together they make a balance of responsibility of the state as well as the citizens to protect and preserve the environment.
The basic framework of EIA including the public consultation process that previously allowed public participation in the environmental clearance process. Apart from this, various projects have been exempted from the ambit of EIA including national highway projects and inland waterways. It has also allowed post facto approvals regarding construction projects which were a violation as per EIA draft 2006. Hence, it can be stated that the draft is much more pro-industry giving industries a free hand over land and natural resources which will weaken the environmental safeguards causing a drastic impact on environment protection laws.
[s1]Please add a few more lines in the conclusion.