Brief Analysis of Environmental Impact Assessment Bill

1.????Introduction:

The Environment Impact Assessment or EIA can be described as a study to predict the environmental impact of a proposed activity/project. The EIA compares various options for a project as a decision-making tool and seeks to identify the one that represents the best combination of economic and environmental costs and benefits. EIA systematically examines the project's both beneficial and negative consequences and ensures that these effects are taken into account during the design of the project. It helps to identify the potential environmental impacts of the proposed project, proposes measures to mitigate the adverse effects of the project, and predicts whether, even after mitigation, significant adverse environmental effects will occur. For any developmental project to be sustainable, EIA plays a very significant role, as it preserves the balance between development and the environment.

2.????History of EIA

Environmental impact assessments began in the 1960s, with a technical evaluation aimed at contributing to more objective decision-making as part of increasing environmental awareness of EIAs. In the United States, with the passage of the National Environmental Policy Act, environmental impact evaluations acquired statutory status in 1969. There has been a growing use of EIAs around the world. The number of environmental assessments submitted each year has vastly surpassed the number of more stringent Environmental Impact Statements (EIS). An environmental assessment is a "mini-EIS" intended to provide the agency with adequate details to determine if it is appropriate to prepare a full-blown Environmental Impact Statement (EIS). EIA is an operation that is conducted to identify the result that will be accomplished before creation occurs.

The Indian experience began over 20 years ago with the Environmental Impact Assessment. It began in 1976-77 when, from an environmental viewpoint, the Planning Commission asked the Department of Science and Technology to investigate the river valley projects. Until 1994, central government environmental clearance was an administrative decision and lacked legislative support. Under the Environmental (Protection) Act 1986, the then Union Ministry of Environment and Forestry issued an EIA notification on 27 January 1994, making Environmental Clearance (EC) mandatory for the expansion or modernization of any activity or for the setting up of new projects listed in the notification's Schedule 1.

In September 2006, the Ministry of Environment, Forests and Climate Change (MoEFCC) announced the new EIA legislation. The notification makes it mandatory to obtain environmental clearance for various projects, such as mining, thermal power plants, river valleys, infrastructure (roads, highways, ports, and airports), and industries including very small electroplating or foundry units. However, unlike the EIA Notification of 1994, depending on the size/capacity of the project, the new legislation has placed the responsibility of clearing projects on the state government.

3.????The controversy on Environment Impact Assessment bill

The EIA process, although established to protect the environment, activists argue, often accomplished the opposite by offering a facade of legal paperwork for a variety of de facto concessions enjoyed by industries. For instance, reports on the potential (damaging) environmental impact of projects, the foundation of the EIA process, are often shoddy and consultant agencies that prepare those reports for a fee are rarely held accountable. The lack of administrative capacity to ensure compliance often makes long lists of conditions for clearance irrelevant. Then there are periodic changes that exempt one industry category or the other from scrutiny. For example, in its recent amendment to the EIA bill, the ministry suggested several exemptions to acquiring environmental clearance. One such was the exemption of thermal power plants up to 15MW, using eco-friendly fuel mix based on biomass or non-hazardous municipal solid waste using auxiliary fuel such as coal, lignite, or petroleum products up to 15 percent.

3.1. The red flag in EIA

No remedy is provided by the 2020 draft for the political and bureaucratic stronghold on the EIA process, and thus on industries. Instead, it proposes reinforcing the discretionary power of the government while limiting public engagement in environmental protection.

While national defence and security projects are naturally considered strategic, for other projects, the government decides on the "strategic" tag. No information on "such projects shall be put in the public domain" is stated in the 2020 draft. For any project deemed strategic, this opens a window for summary clearance without having to explain why.

Furthermore, the latest draft exempts from public consultation a long list of projects. Linear projects such as roads and pipelines in border areas, for instance, will not require any public hearing. The 'border area' is defined as 'an area falling within 100 kilometers of aerial distance from the Actual Control Line with India's bordering countries.' That would cover much of the Northeast, the richest biodiversity repository of the country. This will enable any project/development activity in the region, without public consultation, meaning the people living in the area will have no say about how their biodiversity is to be treated.

3.2. The shift of the old bill to the new draft

The provisions for post-facto project clearance and abandoning the public trust doctrine are the two most important changes in the new draft. Projects that are operating in breach of the Environment Act can now apply for clearance. It is a reiteration of notification from March 2017 for projects that are operating without clearance.

All a violator will need are two remediation and resource augmentation plans that correspond to 1.5-2 times "the assessed environmental damage and the economic benefit derived from the violation." For such late applications, a developer for the period of delay will have to cough up Rs 2,000-10,000 per day. Consider the effect of this penalty on, say, an illegal sand miner who every day takes out multiple truckloads.

The Supreme Court held, by order of 1 April, that 'ex post facto environmental clearances' were contrary to the law. It said: "The notion of an ex post facto clearance cannot be respected by environmental law." This would be contrary both to the principle of precaution and to the need for sustainable development.

The draft for 2020 also outlines how the government will be aware of such violations. Either a government body or the developers themselves have to report it. Any public complaint about violations has no scope. The reliance, instead, is on the violators to disclose, suo motu, that they have violated the law.

4.????Reaction and response of EIA in the public arena

The EIA process evaluates the potential impact of the proposed project on the environment and negative externalities before the ground is broken and determines whether it can be carried out in the proposed form or whether it is to be abandoned or altered. The evaluation is carried out by an Expert Appraisal Committee (EAC) made up of scientists and experts in project management. The scope of the EIA study is framed by the EAC and a preliminary report has been prepared. The report is published and there is a public consultation process where objections can be heard, including from people affected by projects. The EAC can then make a final project assessment and forward that to the Ministry of Environment and Forests (MoEF) regulatory authority. Ordinarily, the regulatory authority is obliged to accept the EAC decision.

As environmental policy must balance environmental risk with sustainable growth and the future benefits of the project, it is important to carry out an independent evaluation on a precautionary basis before investments, employment and infrastructure are put on the line. Industries and corporate interests, however, have long considered the EIA a thorn in their eye. The Draft EIA Notification disables it, reduces its reach and eliminates what teeth it had, under the pretext of streamlining the EIA mechanism and getting it in line with recent decisions. Compared to the 2006 warning, reading through it, one gets the feeling of malicious vandalism, as if an engineer had gone through the system with a series of instruments, loosening controls, opening up escape routes and obscuring transparency.

The most crippling blow to the EIA regime is the development of an ex-post-facto clearance road, where an EIA clearance has never been obtained or given, and the building of the project has taken place regardless, the project promoter will enter an appraisal phase and find his sins blessed, with some minor fines for the violations. Where such ex-post-facto clearances were previously issued, they were cracked down on as unconstitutional by the courts. Accordingly, what could not be ratified would now be informed. It is unclear the legality of sidestepping the courts and will have to be checked.

The proposal notice also shortens the public's time to provide input on the project. This would make it difficult to bring forward representations for project-affected individuals who are often forest dwellers or otherwise do not have access to information and technology. The criteria of monitoring have been slackened. The proposed EIA notification halves the frequency of reporting requirements and extends the validity period for approvals in sensitive industries, such as mining, from every six months to once a year.

It is set to shrink the reach of the EIA regime. Industries that previously fall into the categories needing a complete evaluation have been downgraded. One such winner would be the building sector, where only the biggest projects would be completely scrutinised. Although defence and national security facilities have previously been understandably excluded, a vague new category of projects 'involving other strategic factors' would now also be exempt from the criteria of public consultation. Will that category fall into a power plant? It is fundamentally anti-democratic to undermine the EIA mechanism. A referendum on existential risks is a public consultation for affected communities, where seismic changes in the local climate can threaten livelihoods, flood a valley or kill a forest. To curb it is to muzzle voices which are otherwise rarely heard.

The acts of the government on environmental regulation (as opposed to its bon mots and rhetoric) indicate that it views it as an obstacle to the ease of doing business. The MoEF worked quickly to explain projects during the national coronavirus lockdown, including public hearings via video conference.

5.????Reaction and response of EIA in the bureaucratic arena

Competent management of a rational and accountable EIA mechanism is certainly a "very high order." EIAs are detailed papers to be prepared and reviewed, requiring input from the physical, biological and social sciences (including policy and planning), applied sciences such as engineering, and professional management to build a cohesive story together. And an EIA mechanism (at least in the developed world) involves consultation with the public, Aboriginal people, and stakeholder groups, and thus requires juggling sometimes competing interests in order to provide decision-makers with informed advice. Forging a multi-disciplinary undertaking into an inter-disciplinary commodity that is both an art and a science that is useful for decision-making.

EIA managers, meanwhile, will have to provide sufficient opportunities for the public to be consulted on EIAs. Such consultation in Canada is complicated by the constitutionally guaranteed rights of persons and the obligation of the government to consult them and, if considered necessary, to provide accommodation for breaches of those rights. Because EIA is usually the only opportunity for the public to be briefed about a project administrator, not only do project-related concerns have to be discussed, but also broader issues such as the type or overall speed of progress in an area and residual complaints from past development activities. There is a long tradition of public consultation during the EIA in India, and administrations have a profound experience with it. In recent years, consultation has become increasingly difficult as individuals obtain clearer rights through the courts, the extent of those rights is constantly evolving, and it is difficult for all to understand how to deal with them politely and meaningfully.

6.????References:

1.????Mazoomdaar, J. (2020). Reading the draft Environment Impact Assessment norms, and finding the red flags. The Indian Express. https://indianexpress.com/article/explained/draft-environment-impact-assessment-norms-explained-6482324/. Retrieved on 09 November 2020.

2.????Sarna, S. (2020). Draft EIA Notification is an attempt to weaken regulation, silence affected communities. The Indian Express. https://indianexpress.com/article/opinion/columns/ease-of-harming-environment-6478163/. Retrieved on 09 November 2020.

3.????Barnes, J. L., & Boyle, J. (2015). The Weak Link in EIA Effectiveness: Challenges in Process Administration. https://conferences.iaia.org/2015/Final-Papers/Barnes,%20Jeffrey%20-%20The%20Weak%20Link%20in%20EIA%20Effectiveness.pdf. Retrieved on 09 November 2020.