Draft Environment Impact Assessment (EIA) 2020

Context: Recently, the Ministry of Environment, Forest and Climate Change (MoEFCC) has proposed a draft Environmental Impact Assessment (EIA) notification 2020, that seeks to replace the current notification which goes back to 2006.

Relevance:
Prelims:

• Economic and Social Development Sustainable Development, Poverty, Inclusion, Demographics, Social Sector initiatives, etc.
• General issues on Environmental Ecology, Bio-diversity and Climate Change.

Mains: GS III-

• Conservation, environmental pollution and degradation, environmental impact assessment.
• Indian Economy and issues relating to planning, mobilization of resources, growth, development and employment.
• Effects of liberalization on the economy, changes in industrial policy and their effects on industrial growth.

• Environmental Impact Assessment 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.
• EIA covers projects such as mining of coal or other minerals, infrastructure development, thermal, nuclear and hydropower projects, real estate and other industrial projects.
• The projects are assessed based on their potential impact on the environment.
• Based on the assessments, they are granted or denied environmental clearance by a panel of experts. 

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.
• A signatory to the Stockholm Declaration (1972) on Environment, India enacted laws to control water (1974) and air (1981) pollution soon after.
• But it was only after the Bhopal gas leak disaster in 1984 that the country legislated an umbrella Act for environmental protection in 1986.
• Under the Environment (Protection) Act, 1986, India notified its first EIA norms in 1994, setting in place a legal framework for regulating activities that access, utilise, and affect (pollute) natural resources.
  • Every development project has been required to go through the EIA process for obtaining prior environmental clearance ever since.
• The 1994 EIA notification was amended when 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.
• Earlier this year, the government redrafted it again to incorporate the amendments and relevant court orders issued since 2006, and to make the EIA “process more transparent and expedient.”
• 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 current EIA Process in India

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

1. Screening:
   • The project plan is screened for the scale of investment, location and type of development and if the project needs statutory clearance.
2. Scoping:
   • The project’s potential impacts, the zone of impacts, mitigation possibilities and need for monitoring.
3. Collection of baseline data:
   • Baseline data is the environmental status of the study area.
4. 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.
5. Mitigation measures and EIA report:
   • The EIA report should include the actions and steps for preventing, minimizing or bypassing the impacts or else the level of compensation for probable environmental damage or loss.
6. Public hearing:
   • On completion of the EIA report, public and environmental groups living close to the project site may be informed and consulted.
7. 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).
8. Monitoring and implementation of an environmental management plan:
   • The various phases of the implementation of the project are monitored.
9. 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.
10. Risk assessment: Inventory analysis and hazard probability and index also form part of EIA procedures.

How does the draft EIA Notification differ from the one now in force?

• Among the major departures from existing regulations is the removal of several activities from the purview of public consultation.
• A list of projects has been included under Category B2, expressly exempted from the requirement of an EIA (Clause 13, sub cl. 11).
• The projects under this category include
  1. offshore and onshore oil,
  2. gas and shale exploration,
  3. hydroelectric projects up to 25 MW,
  4. irrigation projects between 2,000 and 10,000 hectares of command area,
  5. small and medium mineral beneficiation units,
  6. small foundries involving furnace units,
  7. some categories of re-rolling mills,
  8. small and medium cement plants,
  9. small clinker grinding units,
  10. acids other than phosphoric or ammonia, sulphuric acid,
  11. micro, small and medium enterprises (MSMEs) in dye and dye intermediates,
  12. bulk drugs,
  13. synthetic rubbers,
  14. medium-sized paint units,
  15. all inland waterway projects,
  16. expansion or widening of highways between 25 km and 100 km with defined parameters,
  17. aerial ropeways in ecologically sensitive areas, and
  18. specified building construction and area development projects.

The projects in this list are, under existing norms, identified on the basis of screening by Expert Appraisal Committees, rather than being exempted through listing in the Schedule. Also, coal and non-coal mineral prospecting and solar photovoltaic projects do not need prior environmental clearance or permission in the new scheme.

Post-Facto Approval:

• The new draft allows for post-facto approval for projects.
• It means that the clearances for projects can be awarded even if they have started construction or have been running phase without securing environmental clearances.
• Projects operating in violation of the Environment Act will now be able to apply for clearance.
• This means that any environmental damage caused by the project is likely to be waived off as the violations get legitimised.
• As the only remedy would be to impose a fine or punishment; but that would not reverse the detrimental consequences on the environment.
• This is disastrous because we already have several projects that are running without EIA clearances.
  • After the gas leak at LG Polymers in Visakhapatnam on May 7, the Environment Ministry told the National Green Tribunal that the unit lacked environment clearance, exposing the low effectiveness of rules.
  • A similar incident was reported on May 27, where due to poor adherence of environment norms, the oil well of Oil India Limited in eastern Assam’s Tinsukia district had a blowout and caught fire.
  • This caused severe damage to the livelihoods in the region rich with biodiversity.
  • The State Pollution Board, Assam, had reported that the oil plant had been operating for over 15 years without obtaining prior consent from the board. 
  • This is against the principles of natural justice.
• Post facto approval is the derogation of the fundamental principles of environmental jurisprudence and violation of the “precautionary principle,” which is a principle of environmental sustainability.
• In 2017, post-facto clearance given to projects in Tamil Nadu was struck down by the Madras high court.
• In an order on April 1, the Supreme Court held “ex post facto environmental clearances” contrary to law.
  • It said: “Environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.”

Public consultation: 

• Public Consultation empowers the local affected persons and others who have a plausible stake in the environmental impact of the proposed project, to raise their concerns for or against the project.
• This social audit process is based on the principle of natural justice that further enhances transparency in the EIA.
• It should be fair and involve the maximum participation of the affected people.
• In Debadityo Sinha v Union of India and Save Mon Region Federation v Union of India, the National Green Tribunal had set aside the EC granted to the projects based on the inappropriate public consultation process.
• The Draft EIA Notification seeks to reduce and discourage public participation in the Environmental Impact Assessment.
• There is apprehension that the exemption from EIA and public consultation for listed B2 category activity and expansion and modernisation projects will seriously affect the environment since these will be carried out without oversight.
• The draft notification provides for a reduction of the time period from 30 days to 20 days for the public to submit their responses during a public hearing for any application seeking environmental clearance.
• Similarly, for project modernisation and expansion, the norms in Notification 2020 are liberal, with only those involving more than 25% increase requiring EIA, and over 50% attracting public consultation.
• The new draft exempts a long list of projects from public consultation.
  • For example, linear projects such as roads and pipelines in border areas will not require any public hearing.
  • The ‘border area’ is defined as “area falling within 100 kilometres aerial distance from the Line of Actual Control with bordering countries of India.”
  • That would cover much of the Northeast, the repository of the country’s richest biodiversity.
• The danger is that if adequate time is not given for the preparation of views, comments and suggestions to those who would be affected by the project, then such public hearings would not be meaningful.
• Unless a public hearing is meaningful, the whole EIA process would lack transparency and credibility.
• Further, the reduction of time would particularly pose a problem in those areas where information is not easily accessible or areas in which people are not that well aware of the process itself. 
• This will make it difficult to study the draft EIA report, more so when it is not widely available or provided in the regional language.

Compliance report issue:

• The 2006 notification required that the project proponent submit a report every six months, showing that they are carrying out their activities as per the terms on which permission has been given.
• Under the proposed changes, project proponents need to submit only one annual report on compliance with conditions, compared to the existing two.
• During this period, certain irreversible environmental, social or health consequences of the project could go unnoticed because of the extended reporting time.
• For example, if a mining project is being carried out at someplace which can be potentially hazardous to the nearby population and can contaminate the air, and water nearby, a half-yearly compliance report would better help in addressing these concerns.
• The move is seen as retrograde because the CAG found in 2016 that the deficiency in semi-annual compliance reporting was between 43% and 78%, while failure to comply with conditions ranged from 5% to 57%.
• Non-compliance was encountered particularly in the river valley and hydroelectric power projects and thermal power projects.

Strategic projects:

• Through the draft notification, the central government gets the power to categorise projects as “strategic.”
• While projects concerning national defence and security are naturally considered strategic, the government gets to decide on the “strategic” tag for other projects.
• The draft says no information on “such projects shall be placed in the public domain”.
• This opens a window for summary clearance for any project deemed strategic without having to explain why.

Other issues:

• The draft notification states that the new construction projects up to 1,50,000 square metres (instead of the existing 20,000 square metres) do not need “detailed scrutiny” by the Expert Committee, nor do they need EIA studies and public consultation.
• The Draft Notification excludes the role of affected parties, civil societies, and others from reporting the violation of the conditions of EC. Those cases reported by anyone other than project proponent or government authority will not be entertained. 

Now before moving further, it is essential to note that before the introduction of Draft EIA Notification, the status of Environment Impact Assessment was not much appreciable. EIA was struggling with several challenges, including

1. necessary reforms in the Expert Appraisal Committee (EAC);
2. inadequate EIAs along with misinformation about the project;
3. non-compliance with EC conditions existed for long in India;
4. non-submission and inaccuracy of compliance reports;
5. lack of adequate monitoring by officials;
6. ignoring the role of local communities affected by the projects, and
7. not engaging them to monitor the violation done by project proponents;

EIA experienced bureaucratic delays and red-tapism that only allowed around 20% of the EC applications to be disposed of on time.

Though the Courts and Tribunals have repeatedly emphasized to incorporate mechanisms that will strengthen the EIA process, it has still not successfully achieved environmental conservation goals.

• According to World Bank's annual report on the Ease of Doing Business (EODB), 'Doing Business 2020: Comparing Business Regulations in 190 Economies', India ranks 63rd out of 190 countries and has moved up by 14 spots in 2020.
• India ranked 142 in 2014 in these rankings.
• These rankings are based on a country’s regulatory laws for running a business, calculated by measuring the ease or difficulty for starting a business, dealing with construction permits, getting electricity, enforcing contracts, among other factors.
• A standard business environment is vital for any country's economic growth.
• Given India's ambitions to be a $5 trillion economy, the government has taken various measures to facilitate ease of doing business through optimization of economic cost:

Ease of Doing Business Reforms in India

1. Starting a business: 
   • India made starting a business easier by abolishing filing fees for the SPICe company incorporation form, electronic memorandum of association, and articles of association.
2. Dealing with construction permits:
   • India (Delhi) streamlined the process, reduced the time and cost of obtaining construction permits, and improved building quality control by strengthening professional certification requirements.
   • India (Mumbai) streamlined the process of obtaining a building permit and made it faster and less expensive to get a construction permit.
3. Trading across borders:
   • India made trading across borders easier by enabling post-clearance audits, integrating trade stakeholders in a single electronic platform, upgrading port infrastructures, and enhancing the electronic submission of documents.
4. Resolving insolvency:
   • India made resolving insolvency easier by promoting reorganization proceedings in practice.
   • India also made resolving insolvency more difficult by not allowing dissenting creditors to receive as much under reorganization as they would receive in liquidation. 

Changes in EIA regulations along with EOBD reforms

• Due to the above-mentioned reforms, India has seen a historic jump in ease of doing business, but reduced regulations to facilitate business will hurt the environment. 
• In recent years, there have various legislations focusing on infrastructural development and neglecting impacts of projects in an environmental and social context.  
• Since 2014, the government has diluted environmental legislation to make business easy, which may have multifarious impacts on the country’s environment.
• Soon after coming to power, the government weakened the process of granting Forest Clearance (FC), required for diverting forest land for non-forest uses, like mining, construction and others.
  • Under the new guidelines dated August 8, 2014, the Ministry of Environment, Forests and Climate Change (MoEF&CC) allowed project proponents to fell trees once the in-principle or the Stage I FC was granted.
  • Earlier, this was only allowed after the final approval or the Stage II FC was granted.
• Then in March 2016, the MoEF&CC created a list of 36 “non-polluting” industries, calling them “White Industries”, which were exempted from obtaining the otherwise mandatory environmental clearance (EC) to begin operations.
  • These industries, like solar power generation using photovoltaic cells, wind power, mini-hydro electric power (less than 25 megawatts) and others do not require an EC under the Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981 or consent from the pollution control board to operate.
• The environment ministry then brought an amendment to the Environmental Impact Assessment (EIA) Notification 2006 on December 9, 2016, exempting construction projects from getting prior environment clearance (EC).
  • Under the new rules, projects smaller than 20,000 square meters require a self-declaration for getting permission from the municipal body and those larger than 20,000 square meters the permission will be given by the municipal authority.
• More recently, the ministry decided to relax the Coastal Regulation Zone Notification, allowing mining of atomic minerals like uranium, thorium, titanium, tantallium and zirconium in October 2017.
  • Under the previous rules, mining of coastal atomic minerals was only allowed when they were not available in non-coastal areas.
• The revised regulations have sure helped India in climbing EOBD ranking but have severe consequences for the environment and locals for the long term.

1. Population-related challenges:
   • India is has a huge population and related challenges are poverty, hunger, low living standards, unemployment and disparities between class and gender.
   • Business opportunities are necessary for economic development and upliftment of the masses. 
   • A better EODB ranking for India facilitates better business opportunities which will increase capital formation.
   • High economic capital means reduced poverty and better livelihoods which will reduce social costs and environmental impacts.
   • More capital means more investment in R&D which will facilitate eco-friendly techniques and optimization of uses of natural resources. But that is a long way to go. 
   • Under the “Make in India” initiative, the country aims to be a manufacturing hub and a major investment destination so land and other natural resources for infrastructural development are vital. 
   • But ignoring environmental impacts of development projects diverts the country from the path of green and sustainable development. 
   • India's need for infrastructure in different geographical areas is fair, but leaving out local communities in the process of their development is strongly not advised.
   • Consultations with the public are necessary to aware them about the benefits of the projects and taking consideration of their issues and resolving them. 
2. Climate change-related challenges: 
   • India faces some unique challenges with a huge population to be fed and employed in a highly sensitive natural environment.
   • Many reports and studies have indicated towards India being an ecologically sensitive zone in the wake of climate change.
   • If mere economic development is given the priority, a huge population remains vulnerable to climate-induced challenges. 
   • Some highly sensitive areas such as the Himalayas, floodplains, wetlands, forests hold India's underdeveloped populations, like the tribals which depend directly on natural resources for their livelihoods.
   • For the development of these areas (take north-east for example), different projects such as dams, railways, roads, irrigation, mining centres etc are necessary. 
   • India needs a strong mechanism to balance economic growth with environmental protection for long-lasting, inclusive and sustainable development.
   • India is committed to achieving Sustainable Development Goals, but the government's push for economic development on the cost of the environment will have consequences.
3. Lack of R&D:
   • India faces a lack of R&D in using natural resources for energy and other purposes- which ensures their wastage.
   • We still use primitive technology in mining.
   • We haven't developed advanced technology for waste management, renewable energy production etc. 
4. Corruption and red-tapism:
   • Prevalence of corruption and bureaucratic loopholes is rampant in assessing the impacts of a project on society and environment and compliance us a major challenge.
5. Weak EIA regime:
   • Some activists argue that though established to safeguard the environment, the EIA process often achieved the opposite by offering a façade of legal paperwork for a range of de facto concessions enjoyed by industries.
   • For example, reports on projects’ potential (damaging) impact on the environment- the bedrock of the EIA process- are frequently shoddy and consultant agencies that prepare those reports for a fee are rarely held accountable.
   • Lack of administrative capacity to ensure compliance often renders long lists of clearance conditions meaningless.
   • Then there are periodic amendments exempting one category of industries or the other from scrutiny.
   • On the other hand, developers complain that the EIA regime dampened the spirit of liberalisation, leading to red tape and rent-seeking. 

The need to balance both poles

• In the wake of the worsening climate crisis, it is crucial to consider the environmental impacts of development projects.
• Better EIA would ensure better risk reduction and mitigation of climate-induced disaster and diseases without risking livelihoods of the masses.
• Sustainable livelihoods make a way for better human capital which will, in turn, guarantee better business and economic development.
• So it is crucial that EIA and EODB go hand in hand for a green and inclusive economic development. 
• Environmental democracy is the need of the hour. 
  • The term ‘environmental democracy‘ broadly refers to the participation of the citizenry in decision-making processes that have an impact on their immediate environment.
  • Public hearings for EIA processes or the necessity for a Gram Sabha’s consent in obtaining a forest clearance are critical benefits of fostering an environmental democracy.
  • It actively ensures another layer of checks and balances while equipping citizens to inform state decision making.
• India does not have the strongest foundations for fostering environmental democracy.
  • Take the land-related conflicts mentioned earlier, for example.
  • These have been on the rise, according to a 2012 study conducted by the Rights and Resources Initiative.
  • One-third of India’s population is affected by land and forest takeovers; the reason often being that local communities were neither consulted nor gave consent before the land was provided to industries.

How does the draft notification compare with global norms?

• EIA rules must meet the requirements of the precautionary principle of avoiding harm, and intergenerational equity.
• The European Union, as an evolving example, has modified its processes in accordance with the Aarhus Convention, 1998, which stipulates that
  1. environmental rights and human rights are linked,
  2. the present generation owes an obligation to future generations,
  3. sustainable development can be achieved only through the involvement of all stakeholders,
  4. government accountability and environmental protection are connected, and
  5. interactions between the public and public authorities must take place in a democratic context.
• The EU Directive on EIA includes climate change and biodiversity concerns.

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.

However, it needs to address the above issues. In this context:

• 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.
• With the EIA, we also need Social impact assessment to achieve sustainable development in true sense.

To balance the ease of doing business with environmental impact assessment, the following measures are suggested:

1. Inclusion and training of locals in developing small and medium industries which use local resources optimally, and creating local employment through the process. More emphasis on footloose industries and sunrise industries. 
2. Alignment of environment conservation and economic development through initiatives like Green Credit Scheme and Carbon Credit Market. 
3. Investment in R&D in the clean energy sector and environment-friendly techniques in infrastructural development. 
4. Emphasis on an easier tax regime with encouragement to clean projects.  
5. As an immediate measure, there is a need to counter corruption and red-tapism in all forms of business and bureaucracy. 
6. As a long term major, environmental consciousness is necessary to align with public day to day life on our path to sustainable inclusive growth. 

Conclusion

• We need much stronger laws to protect the environment and to ensure that natural resources are available to the poorest who need them the most.
• There are a large number of communities like Adivasis, peasants and coastal and fisher communities whose lives mainly depend on the state of the environment.
• Any drastic changes in EIA will have a direct impact on the living and working conditions of these people and the ecology. 
• This Draft Notification necessitates the need to re-visit the principle of sustainable development.
• The Supreme Court in Alembic Pharmaceuticals Ltd. case held that,
  “….Given the social and environmental impacts of industrial activity, environment compliance must not be seen as an obstacle to development but as a measure towards achieving sustainable development and inter-generational equity.”
• EIA is an opportunity to achieve sustainable development.
• Without an effective EIA, any project will face difficulty in proving its consistency with sustainable development.
• Notably, some issues under the EIA Draft Notification contradict the environmental laws and core legal principles.
• Thus, it is crucial to see that, if adopted, how far it can successfully undergo judicial scrutiny.