Development can have, and has had over the years, extensive adverse effects on the environment, by demeaning forests and water bodies, changing landscapes and threatening ecosystems. Additionally, these developmental activities have a notable economic cost as well as a negative impact on human health. Environmental Impact Assessment (hereinafter referred to as EIA) is a mechanism that identifies the potential risks or expected negative impact of the development project and identifies the ways to minimize them. EIA is one of the most successful policy experiments that took place in the 20th century for the conservation of the environment. EIA emerged in the early 1970s, during the enactment of the National Environment Policy Act, 1969 in the U.S.
In India, the first EIA notification was promulgated in 1994 under the Environment (Protection) Act, 1986 making environmental clearance compulsory for any developmental or modernization project listed in schedule 1 of the said notification. Later on, the 1994 EIA notification was replaced with a modified draft in 2006. In a study, it was found that in spite of various amendments, the condition of the environment has not improved in India. Recently, the central government proposed a new draft of EIA to make the EIA procedure “more transparent and expedient” for the stakeholders and published it for public comments and objections.
THE NEW EIA DRAFT
The 2020 EIA draft notification was issued by the Ministry of Environment, Forest and Climate Change (MoEFCC) under the powers vested under the Environment (Protection) Act, 1986 in April 2020. Although the said draft aims to make the EIA process more transparent and expedient, the draft proposes removal of several developmental activities from the purview of public consultation. Various environmentalists also came against the drafts as they feel that this draft EIA would make the EIA process a mere formality. The draft notification gives rise to various issues, which are discussed as follows: –
- LIMITATION ON PUBLIC PARTICIPATION
Public consultation is one of the most significant parts in EIA because it is the general public who will be most affected because of any developmental project. The current EIA draft provides a period of twenty days for the public to submit their reply to the government on the EIA report, whereas the previous EIA notification of 2006 provided thirty days for the same. Environment activists argue that reducing the period will affect the public responses, as the public would not get sufficient time to file their suggestions or objections. Moreover, under clause 14(2) of the EIA 2020 draft, various projects such as developmental projects in border areas or offshore projects are exempted from the public consultation.
- Ex-POST FACTO CLEARANCE OF PROJECTS
The EIA draft proposes an ‘ex-post facto clearance’, which means any project, which is already operating without obtaining the environmental clearance by presenting a remediation plan and natural and community resource augmentation plan. However, this concept is completely in violation of one of the most important principles of environmental jurisprudence that is the ‘Precautionary Principle’. Recently, in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors, the Supreme Court held that ex-post facto environmental clearance is unconstitutional. The Court observed “Public hearing, Screening, scoping and appraisal are prerequisites of the EIA process to ensure that the impacts of the developmental activities must be taken into account during the decision-making process. Permitting the ex post facto clearance would condone the operation of industrial activities without the grant of clearance. In the absence of such clearance, there would be no tool that would safeguard the environment…”
- EASING OF ENVIRONMENTAL CLEARANCES & PERMISSION
Under clause 26 of the draft EIA, around forty types of projects including solar thermal power plants are exempted from any kind of prior environmental clearance or prior environmental permission. This exemption will allow the developmental projects in environmentally sensitive areas that could have detrimental effects on the inhabitants including flora and fauna.
- CONTROL MECHANISM
The proposed EIA draft provides no remedy for tackling the political and bureaucratic control over the EIA process and thereby on industries. Rather, it intends to strengthen the government’s discretionary power while restricting public participation. Projects relating to national defense and security are considered as “strategic” projects, meanwhile, the government has the power to label any project as a “strategic” project. In this context, the 2020 draft under clause 5 clearly states that no information on ‘such project shall be placed in the public domain’. This gives the absolute power to the government to tag any project as “strategic” and get clearance without any accountability.
The basic principles that form the foundation of environmental law – ‘Precautionary Principle’ and ‘Sustainable Development’ would be seriously violated if the draft EIA of 2020 came into effect. Such regulations not only dilute the framework of environmental protection but also hamper human life. According to a study, India ranked 168th out of 180 countries in the 2020 Environmental Performance Index (EPI). Moreover, despite having many environmental regulations, the country faces enviro-industry disasters like LG Polymers gas leak in Vishakhapatnam (2020), Bhilai Steel Plant Pipeline Blast (2018), Belur Chlorine Gas Leak (2017) every year. These incidents show that there is a need for a strong EIA mechanism to protect the environment as well as human life.
The current situation of the economic slowdown due to the Covid-19 pandemic might be an argument in favor of the government as the said draft ensures faster permission and clearance of the development projects. However, it is indeed important to balance economic growth and environmental protection. The current EIA draft certainly falls short in this regard, as the majority of the provisions give way to further environment degradation.
 Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors, Civil Appeal No. 1526 of 2016.