The EIA or Environmental Impact Assessment is an invaluable tool of the regulatory process in India. EIAs became part of policy during the 1970s in the Euro-US world. The World Bank soon after began to establish mandatory EIA requirements, and around this time India too legislated EIAs as a mandatory prerequisite for any new projects or activities, or any modernisation or expansion of existing projects.

The first notification to this effect came in 1994 wherein no expansion, modernisation or new project or activity was to be undertaken except in accordance with the environment clearance regulations of the central government. The process for conducting an EIA was laid down, and public consultations were deemed mandatory for all projects classified as Category A or B1 of the relevant schedule. The notification was amended many times until a revised EIA notification was introduced in 2006.

In some respects the 2006 EIA notification was an improvement over the 1994 version, but it failed to make some necessary accommodations. Many experts said it had failed to strengthen the process of public consultation, by allowing authorities to forego public hearings if they deemed them unnecessary. It further weakened the process by barring the participation of non-local members of the public.

A third draft has now been proposed by the Union Ministry of Environment, Forest and Climate Change. The 2020 EIA draft notification was uploaded on the ministry website on March 12 and already the government has begun public consultations.

The problem, though, is that India is currently under complete lockdown. To access the draft, understand it, confer upon it will be a near impossibility. This is especially true of people from the communities we marginalise, who will be starkly affected by this legislation, but are in no position to participate in the ongoing consultation in any meaningful way.

Environmental experts who have gone through the draft, however, point out a number of red flags in the new draft notification. Three are highlighted here which they believe the Centre should seriously reconsider.

Build First, Clear After

First, the draft makes room for allowing projects that began construction without first acquiring an environmental clearance to get one retrospectively. This extremely problematic suggestion inverts the logic of the precautionary principle which forms the bedrock of environmental jurisprudence in India.

The issue has been deliberated at great length by the National Green Tribunal and the Supreme Court in the past, and both courts summarily disagreed with the idea of providing an environmental clearance (EC) after the fact.

In Alembic Pharmaceuticals vs Rohit Prajapati the Supreme Court observed that the “concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA notification dated 27 January 1994. It is, as the judgment in Common Cause holds, detrimental to the environment and could lead to irreparable degradation.

“…before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision-making process have been completed. Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of the industrial activity or the expansion of an existing industrial activity are considered in the decision-making calculus.

“Allowing for an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment.

“Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the environment. In either view of the matter, 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.”

This is not the first time government authorities have tried to help builders skirt environmental safeguards. In 2017 the union environment ministry provided a safeguard for project proponents who wished to obtain environmental clearances retrospectively.

According to Zaman Ali, an advocate at the Bombay High Court, “The Madras High Court heard a challenge to a notification amending EIA 2006 which allowed for a one-time measure to all violating industries to consider granting of ex post facto environment clearance. Initially the notification was stayed by the court, but during the final stage of hearings it upheld it by recording the Additional Solicitor-General’s submission that the amendment would be used only and only as a one-time measure.”

What the government said would be a single exception it is now proposing as policy. Ali believes the “draft EIA 2020 has taken even more advantage of this situation and defeated the very purpose of a one-time measure, by now setting up a permanent mechanism to grant ex post facto approval by paying remediation costs.”

Please Confess Your Crimes?

Second, the draft relies heavily on project proponents who violate environmental norms to report themselves to the authorities. “The draft notification runs totally opposite to the solid environmental jurisprudence developed by our superior courts in this country,” says Ali. “According to me, such a provision will not create any deterrence effect whatsoever in the minds of industrialists and factory operators.

“The let-mistakes-be-discovered approach of violators will continue, since they know that as and when a violation is discovered, they can pay, and have their violations condoned. It seems the polluter-pays principle has been changed to pollute and pay!”

Public Consultation Without a Public

The 1994 EIA notification mandated public consultations for all Category A or B1 projects or activities. This clause was diluted in the 2006 EIA notification only to be watered down further now: the new draft seeks to reduce the amount of time available for people to furnish their suggestions and objections to only 20 days. It proposes that the entire process of public consultation be concluded within 40 days.

Curtailing the public’s right to have a say in state policies is sure to increase tension and conflict between the state machinery, and those who will be most affected by these policies.

“It can be said that this notification will make the company more irresponsible, weakening its adherence to environmental provisions. Efforts will be made to make the processes of environmental acceptance more project-friendly, in which public consultation will be completely weakened or removed.

“Due to this, the objections of the affected community will not be recorded for any project, which will have serious adverse effects,” says Alok Shukla, convenor of the Chhattisgarh Bachao Andolan.

In order for public consultations to be meaningful, steps should have been taken to ensure that people’s concerns and viewpoints are addressed through a participatory mechanism of decision making.

When it comes to evaluating how a proposed project will affect “the environment”, relying on scientific datasets is not enough. It is crucial to involve people, especially those most affected by a proposed project, at the very onset of the decision making process. Effectively managing an area’s ecology requires the support of local knowledge, of knowledge systems unlike our own. And yet, it is the people who hold this knowledge who are usually dismissed entirely while the state makes decisions.

Exemption Anyone?

A questionably large number of project categories have been exempted from the process of public consultation: secondary metallurgical industries, chemical fertiliser plants, soda ash industries, pesticides, petroleum products and petrochemical based production of graphite, synthetic chemicals, biomedical waste treatment facilities, common effluent treatment plants among others.

Additionally, all building and construction projects are proposed to be exempt from public consultation. Along with the very broadly worded category, “projects of strategic consideration as determined by the Central Government”.

The draft further permits fencing and the levelling of ground without prior environmental clearance. “The spirit and purpose of the EIA notification is to ensure that the precautionary principle applies in matters of environment. Levelling involves the transformation and destruction of the existing natural features of the land. At times these features can be crucial to helping the biodiversity. Altering them makes destruction complete without any accountability or responsibility.

“It is a mischievous clause inserted to defeat any attempt to protect the land,” says Stalin Dayanand, director of Vanashakti, a Mumbai based environmental NGO.

These are only the most worrying provisions of the draft notification, which happily dilutes several important regulations meant to ensure compliance from project proponents. It inverts the most basic principles of environmental jurispudence: the precautionary principle, the polluter pays principle.

The proposed watering down of these fundamental provisions of ecological justice stand contrary to the EIA notification’s stated objective. They are contrary to the logic of conservation and dignified coexistence.

Radhika Jhaveri is an environmental activist based in Mumbai