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DRAFT EIA 2020: A CRITICAL ANALYSIS

Updated: Jul 16, 2020

Author: Atharva Nikam

National Law University, Mumbai




ABSTRACT

Human beings have known the importance of the environment, since the very beginning of humankind. But, since the industrial revolution, projects and activities, which are needed for development are being carried out at the cost of the environment. In India, a draft issued by, Ministry of Environment, Forests and Climate Change, sets up the norm and regulations for such developmental activities. The draft is called the Environment Impact Assessment draft, and this essay revolves around the latest and modified version of this draft. This essay describes, analyses and explains the EIA draft of 2020. Reliable and relatable primary and secondary sources were used, to gather information, while composing the essay. The essay will introduce the readers to various aspects of the draft and will also describe the crux matter of the whole draft. There were basically two reasons for writing this essay, firstly, to introduce readers to this draft, and secondly to satisfy my quest, to know more about environmental laws of India. In the end, I hope that this essay justifies both the reasons.

INTRODUCTION

Draft Environment Impact Assessment (EIA), is a legal framework, established under the Environment (Protection) Act, 1986. The draft is issued with the purpose of imposing certain restrictions (in some cases even prohibition) on the undertaking of some projects, or expansion and modernization of the existing ones[1]. The projects that are mentioned above utilizes, and affects the natural resources, hence a framework is placed so as to regulate such activities, and the framework is the Draft EIA. The norms and the rules of EIA were first laid down in 1994, and hence, the first draft was issued in the same year. Since its inception, each and every developmental project and activity, is required to obtain a prior Environment clearance (EC) or a prior Environment permission (EP). The draft EIA of 1994 was replaced by a modified draft in 2006. The modification or change is the requirement of time, as various relevant court orders took place in the span of twelve years. Now, the EIA draft of 2006, is redrafted and will be replaced by the EIA draft of 2020. There are various reasons for the same, but the foremost one is to make the EIA “process more transparent and expedient”[2].

The Draft EIA 2020, is a very detailed draft in comparison to the earlier drafts of 1994 and 2006. The EIA draft of 2020, consists of twenty-seven schedules, ranging from the description of the draft itself to the procedure followed while dealing with the pending cases. It has been termed as detailed as the most recent draft (i.e., EIA draft of 2006) contained only twelve clauses[3], and now it has been expanded to twenty-seven. Along with the clauses, the draft contains schedules and appendices. The schedule mentioned in the draft appears after the clauses, it divides the developmental project that requires prior – EC and prior – EP, into three different categories, which are A, B1, and B2. These categories are made on the basis of environmental damage, the developmental project causes. After the schedule, comes the appendix. There are fifteen appendixes in total. The appendixes carry their own significance as it ranges from the procedure of public consultation (Appendix I), to the schematic representation of the procedure, which has to be followed while dealing with the violation cases (Appendix XV). Thus, we can observe that, the whole EIA draft of 2020, is divided into three sections, which are: Clauses, Schedule, and Appendixes. The description and analysis of the sections is done, hereinafter.

Beginning with the draft EIA 2020

Draft Environment Impact Assessment (EIA), 2020, is the modified version of Draft EIA 2006, encapsulating relevant court orders and amendments, which have been issued since 2006. The very primary aim of the draft is to regulate the developmental projects, which run at the cost of affecting and polluting the environment and the natural resources. In much simpler words, this draft places norms and regulations for such developmental projects, thus in a way ensuring the preservation of the environment. The draft begins by stating the statute, under which it is applicable, and how it replaces the EIA draft of 2006. Just after stating this, the draft states the reason for its inception. The reasons are relevant amendments and court orders, which guided the ministry to make this draft.

The draft mentions two such cases, firstly, Hindustan Copper Limited v. Union of India, and secondly, Sandeep Mittal v. Ministry of Environment, Forest and Climate Change & Ors. In first case, the High Court of Jharkhand held that, “the consideration for the proposal for Environment Clearance must be examined on its merits, independent of any proposed action for alleged violation of the environmental law”[4]. The second case appeared before the National Green Tribunal, and the NGT held that, “Ministry shall strengthen the monitoring mechanism for compliance of conditions of Prior Environment Clearance”[5]. Such judgments indicate the need to change the existing norms and regulations, and thus arose the requirement of a new draft.


Understanding draft EIA 2020 in totality

The first three clauses of the draft just introduces its name, area of applicability (which is whole India, including the territorial waters) and the definitions of the terminology used in the draft. The third clause, i.e., the clause which contains the definitions of the terms used in the draft, is a very detailed clause. The clause comprises of sixty definitions and along with it, it also states the acronyms of the huge terms. This clause is in fact the key, to understand the draft. In case we are not well-acquainted with this clause, we cannot understand the meaning of terms such as SEIAA, EAC and many more. The main part of the draft starts with clause four, which states that all developmental projects (Categories A, B1, and B2) require prior-Environmental clearance or prior-Environmental permission. This is an important step, required to ensure the safeguarding of the environment.

Now the question which arises is that what are these categories? The answer comes just in the next clause, which is titled as, ‘Categorisation of projects and activities.’ The classification into “Category ‘A’, Category ‘B1’, and Category ‘B2’ is done on the basis of potential social and environmental impacts and spatial extent of these impacts”[6]. These activities and their categories are mentioned in the schedule of this draft. Thereby, let us take an example to understand the categorisation perfectly. For example: the developmental activity or project, is the mining of minor minerals. Now, three categories are made on the basis of natural resources used. As it is a project of mines, the natural resource which will be used is land. If more than hundred hectares of land is used, then it will come under category ‘A’, if land used is between five and hundred hectares, then it will come under category ‘B1’, and if land used is less than or equal to five hectares, then it will come under category ‘B2’. Here we can directly observe that the impact on the environment will be immense if developmental work of category A is carried out. The impact will lessen with category B1, and will be least, with category B2. This is the type of categorisation, used in this draft.

The draft now moves towards the formation and composition of the Expert Appraisal Committee (EAC). Expert Appraisal Committee, “is a committee of experts constituted at central level by the Ministry for appraisal of projects referred to it and for making appropriate recommendations”[7]. Appraisal is defined in the draft as follow: it is the detailed scrutiny of the application in prescribed form(s) and all documents including final EIA report, outcome of the public consultations by the Appraisal Committee for grant of Prior Environment Clearance[8]. Clause six further goes on to describe the eligibility criteria for becoming the members of this committee. The draft, in clause six, eight, and nine, states and describes various types of committees, besides describing its formation and purpose. Such as it describes, the State or Union Territory or District Level Expert Appraisal Committee and the Technical expert Committee, in clause eight and clause nine, respectively. The EAC works at central level, and the committees mentioned in clause eight works at state, UT, and district level. The Technical expert committee’s function is to categorize and re-categorize, the developmental projects and activities.

The crux matter of draft EIA 2020

Clause ten of the draft is by far the most important draft, as it states the process of obtaining prior Environment Clearance (EC) or prior Environment Permission (EP). This clause just states the stages for obtaining prior – EC or EP, and then these stages are described in detail, in the upcoming seven to eight clauses. So, there are basically six stages, in the process of obtaining prior - EC or EP. The six stages are as follow:

“Stage (1). Scoping;

Stage (2). Preparation of Draft EIA Report;

Stage (3). Public Consultation;

Stage (4). Preparation of Final EIA Report;

Stage (5). Appraisal; and

Stage (6). Grant or Rejection of Prior Environment Clearance”[9].

All of the above-mentioned stages are described, correspondingly in the upcoming clauses. Clause twelve of the draft, describes about scoping. Scoping means the process of determining the Terms of Reference by the Regulatory Authority for the preparation of EIA Report, for the project, seeking prior-EC[10]. Of all the stages of getting prior Environment clearance, public consultation, is considered of greater importance, compared to others. Public consultation is the stage, where concerns of the local people, who will be affected the most by such developmental activities, is taken into consideration, while designing the project. It is one of the most important steps, as it asks for the view of local people, because, in reality they are the ones who suffer the most. Such consultations ensure a window of hope for minimising the damage, to the local community.

Each and every clause after clause ten, have one area of concern in common. They all relate (in a way or other) to the prior-Environment clearance process. Clauses eleven to eighteen, describes the six stages (mentioned above) in detail. The clauses nineteen to twenty-four, discusses a variety of concepts, related to the prior and post EC process. Some of these concepts are the validity period of the prior-EC, the process of dealing with the violation cases and the cases of non-compliance of norms. Clause twenty-five states about the appeals against prior – EC granted by the regulatory authority. The draft states that such appeals shall come under the jurisdiction of the National Green Tribunal. The penultimate clause of the draft states, the list of developmental activities, which does not require prior-EC or prior-EP. The list comprises of forty activities or projects, which causes minimal environmental damage. The last clause of draft EIA 2020, states that all of the prior drafts will be superseded, from the final date of publication of this notification. It also states that all the prior-EC issued after the publication of this notification, will be considered to be issued under this notification[11].

CONCLUSION

The draft EIA 2020 is a unique draft, in comparison with the earlier ones. It is unique in the terms of its representation, language, and concepts used. The representation is reader friendly, as it describes each and every concept, in a perfect manner. The draft chronologically describes each and everything related to the process of obtaining prior-EC or prior-EP. For Example: Clauses one to five, introduces the draft and describes various categories of developmental process. Then clause six to nine, describes committees and regulatory authorities, related to the process. Further clause ten, describes the stages involved in the process of obtaining prior-EC, and then the upcoming clauses describe each and every stage in detail. Such type of representation of ideas and concepts makes the draft easier to comprehend.

Apart from all of this, the draft is a fairly criticized notification. The draft has faced criticism from a variety of individuals, even including acclaimed environmentalists. Some of the valid criticisms are stated hereinafter. The draft in Sub-clause 2 of Clause 14, mentions about the developmental projects, which shall be exempted from public consultation. This clause is completely arbitrary as it exempts projects such as building construction, constructing elevated roads or bridges, and all projects of category ‘B2’. By exempting such crucial projects from public consultation, the draft shows apathy towards the local residents and communities. The local residents would be the one who will suffer the most, by such projects, and the draft, instead of helping them, will let them suffer. Then the draft under some sub-clauses of clause 22, “allows the project owners to pay compensation in cases where they pollute the environment and continue their operations as if nothing remains unchanged”[12]. This clause compares the environmental damage to monetary compensation, which is a highly problematic idea. The environmental damages are irreversible and it is something which money can’t buy. The draft was put in place, so as to strengthen environmental norms, but by encapsulating such clauses, it is weakening such norms and regulations.

Such valid and considerate criticisms of the draft helps the government and specifically the ministry in improvement of the draft. In the previous paragraph, only two such criticisms are mentioned. There are various others, such as the draft cuts out the time for public hearing[13], then how it possesses a major threat to the Western Ghats[14]. The draft in its very first paragraph states, that the draft will be taken into consideration, after expiry of sixty days, beginning since the date, the draft is made public. This span of sixty days is primarily given to take into consideration, the objections (against the draft) raised by the public. Therefore, I think that though the draft is detailed, descriptive, and self-explanatory, it also contains some loopholes, which should be addressed.

References:

[1] Draft Environment Impact Assessment (EIA) Notification - 2020, Ministry of Environment, Forests and Climate Change (Moef), March 12, 2020, Available at http://moef.gov.in/wp-content/uploads/2020/03/Draft_EIA2020.pdf. [2] An article in the Indian express titled, “Explained: Reading the draft Environment Impact Assessment norms”, Available at, https://indianexpress.com/article/explained/draft-environment-impact-assessment-norms-explained-6482324/. [3] Draft Environment Impact Assessment (EIA) Notification – 2006, issued by The Ministry of Environment, Forests and Climate Change (Moef). Available at, http://www.environmentwb.gov.in/pdf/EIA%20Notification,%202006.pdf. [4] Hindustan Copper Limited v. Union of India, High Court of Jharkhand, W.P. (C) No. 2364 of 2014. [5] Sandeep Mittal v. Ministry of Environment, Forest and Climate Change & Ors, National Green Tribunal, Original Application (OA) Number 837/2018. [6] Sub-clause 1 of clause 5 of Draft Environment Impact Assessment – 2020. [7] Sub-clause 27 of clause 3 of Draft Environment Impact Assessment – 2020. [8] Sub-clause 3 of clause 3 of Draft Environment Impact Assessment – 2020. [9] Sub-clause 1 of clause 10 of Draft Environment Impact Assessment – 2020. [10] Sub-clause 49 of clause 3 of Draft Environment Impact Assessment – 2020. [11] Sub-clause 2 of clause 27 of Draft Environment Impact Assessment – 2020. [12] An article in live law, titled, “Draft EIA Notification 2020: Areas of Concern”. Available at https://www.livelaw.in/columns/draft-eia-notification-2020-areas-of-concern-159135. [13] An article in The Hindu, titled, “New environment impact norm cuts time for public hearing”. Available at, “https://www.thehindu.com/sci-tech/energy-and-environment/new-environment-impact-norm-cuts-time-for-public- hearing/article31052406.ece. [14] An article in The Hindu, titled, “Draft EIA Notification 2020 could spell disaster for Western Ghats, say experts”. Available at, https://www.thehindu.com/news/national/karnataka/draft-eia-notification-2020-could-spell-disaster-for-western-ghats-say-experts/article31965233.ece

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