Subject: Conservation & Mitigation

The changes made in the recent notification gives rise to several issues. These changes and issues that could arise are discussed in this article.

• Environmental Impact Assessment (EIA) is a process of evaluating the likely environmental impacts of a proposed project or development, taking into account inter-related socio-economic, cultural and human-health impacts, both beneficial and adverse.
• UNEP defines Environmental Impact Assessment (EIA) as a tool used to identify the environmental, social and economic impacts of a project prior to decision-making.
• It aims to predict environmental impacts at an early stage in project planning and design, find ways and means to reduce adverse impacts, shape projects to suit the local environment and present the predictions and options to decision-makers.
• Environment Impact Assessment in India is statutorily backed by the Environment Protection Act, 1986 which contains various provisions on EIA methodology and process.

History of EIA in India

• The Indian experience with Environmental Impact Assessment began over 20 years back. It started in 1976-77 when the Planning Commission asked the Department of Science and Technology to examine the river-valley projects from an environmental angle.
• Till 1994, environmental clearance from the Central Government was an administrative decision and lacked legislative support.
• On 27 January 1994, the then Union Ministry of Environment and Forests, under the Environmental (Protection) Act 1986, promulgated an EIA notification making Environmental Clearance (EC) mandatory for expansion or modernisation of any activity or for setting up new projects listed in Schedule 1 of the notification.
• The Ministry of Environment, Forests and Climate Change (MoEFCC) notified new EIA legislation in September 2006.
  • The notification makes it mandatory for various projects such as mining, thermal power plants, river valley, infrastructure (road, highway, ports, harbours and airports) and industries including very small electroplating or foundry units to get environment clearance.
  • However, unlike the EIA Notification of 1994, the new legislation has put the onus of clearing projects on the state government depending on the size/capacity of the project.

The EIA Process

EIA involves the steps mentioned below. However, the EIA process is cyclical with interaction between the various steps.

• Screening: The project plan is screened for scale of investment, location and type of development and if the project needs statutory clearance.
• Scoping: The project’s potential impacts, zone of impacts, mitigation possibilities and need for monitoring.
• Collection of baseline data: Baseline data is the environmental status of study area.
• Impact prediction: Positive and negative, reversible and irreversible and temporary and permanent impacts need to be predicted which presupposes a good understanding of the project by the assessment agency.
• Mitigation measures and EIA report: The EIA report should include the actions and steps for preventing, minimizing or by passing the impacts or else the level of compensation for probable environmental damage or loss.
• Public hearing: On completion of the EIA report, public and environmental groups living close to project site may be informed and consulted.
• Decision making: Impact Assessment Authority along with the experts consult the project-in-charge along with consultant to take the final decision, keeping in mind EIA and EMP (Environment Management Plan).
• Monitoring and implementation of environmental management plan: The various phases of implementation of the project are monitored.
• Assessment of Alternatives, Delineation of Mitigation Measures and Environmental Impact Assessment Report: For every project, possible alternatives should be identified, and environmental attributes compared. Alternatives should cover both project location and process technologies.
  • Once alternatives have been reviewed, a mitigation plan should be drawn up for the selected option and is supplemented with an Environmental Management Plan (EMP) to guide the proponent towards environmental improvements.
• Risk assessment: Inventory analysis and hazard probability and index also form part of EIA procedures.

Importance of Precautionary Principle

• The basis in global environmental law for the EIA is the “precautionary principle”.
• Environmental harm is often irreparable and it is cheaper to avoid damage to the environment than to remedy it.
• We are legally bound to the precautionary principle under international treaties and obligations, as well as by Supreme Court judgments.

What is the issue?

• Streamlining the EIA process and bringing it in line with recent judgments are the reasons given by the government for latest notification.
• The Draft EIA Notification disables it, shrinks its scope and removes what teeth it did have.
• The most devastating blow to the EIA regime is the creation of an ex-post-facto clearance route. 

1.What is ex-post-facto clearance route?

• It applies to ongoing or completed project for which an EIA clearance was never sought or granted, and the construction of the project took place regardless.[violating the norms]
• The project now can be slapped with minor fines for the violations and get cleared.
• Where such ex-post-facto clearances were being granted previously, the courts cracked down on them as illegal.
• Therefore, what could not be ratified will now find itself notified.
• The legality of sidestepping the courts is questionable and will have to be tested.

How it will affect?

•  It will become a business decision as to whether the
• There is an argument that this route will be an “exception”.
• But it is difficult to believe in India. Our law has a long history of expanding the exception into the rule.

Time to furnish response shortened

• The draft notification also shortens the time for the public to furnish responses on the project.
• For project-affected people, who are frequently forest dwellers or otherwise do not have access to information and technology.
• This will make it harder to put forth representations.

2.Monitoring requirements reduced

• Monitoring requirements have been slackened.
• The draft EIA notification halves the frequency of reporting requirements from every six months to once a year.
• It also extends the validity period for approvals in critical sectors such as mining.

3.Scope of EIA reduced

• Industries that previously required a full assessment have been downgraded.
• The construction industry will be one such beneficiary, where only the largest projects will be scrutinised fully.
• While defence and national security installations were always understandably exempt, a vague new category of projects “involving other strategic considerations” will also now be free from public consultation requirements.

4.Recent industrial mishaps

• Oil India Limited’s oil wells in the Tinsukia district, Assam went up in flames this month.
• It is situated only a few kilometres away from protected forest.
• Recent processes for expansion and modification apparently took place without fresh environmental clearance.
• There was a deadly gas leak at LG Polymers’ Visakhapatnam plant in May.
• The plant had been operating without a valid environmental clearance for decades.

Consider the question “Examine the changes made in the draft EIA Notification and what are the issues with it? “

Way Forward

On a positive note, the 2020 draft notification has a clause dedicated to definitions to several terms related to EIA. It may be beneficial in the sense that it consolidates the EIA rules and has the potential of alleviating some ambiguity in the present law.

• The ministry, instead of reducing the time for public consultation, should focus on ensuring access to information as well as awareness about the public hearing and its impact upon the whole EIA process.
• In order to improve ease of doing business, the government should bring down the average delay of 238 days in granting environmental clearance, that emanates from bureaucratic delays and complex laws.
• Grow now, sustain later should not be the policy, as the notion is dangerously tilted against the concept of sustainable development.

Conclusion

Environmental regulation must balance damage to the environment with sustainable development and possible benefits but the new notification lays more emphasis on the benefits and so must be reconsidered.