DRAFT EIA 2020: Silencing The Obstacles
Article 48A of the Constitution of India obligates the State to endeavor to protect and improve the environment and safeguard the forests and wildlife of the country. The Supreme Court on several occasions has repeatedly held that natural resources including forests, water bodies, rivers, seashore, etc. are held by the State as a trustee on behalf of the people and especially the future generations. Such public trust properties cannot be transferred to a private party if it interferes with the rights of the public and the public trust doctrine can be invoked for protecting rights.
In exercise of the powers conferred by Section 3(1) read with clause (v) of sub-Section (2) of Section 3 of the Environment (Protection) Act, 1986 read with Rule 5(3)(d) of the Environment (Protection) Rules, 1986, the Central Government issued the Environment Impact Assessment Notification thereby introducing the concept of environmental clearance and the procedure thereof for new and expansion of projects.
Loopholes in the previous EIA Notifications
But, the framing of notifications was not sufficient to solve the issue. The process of EIA, as per the old notifications, involved a number of glitches and has been under the constant scrutiny of the Courts majorly because of non-adherence of the EIC Notifications by the Ministry and its subordinates itself. Time and again many amendments and circulars have been introduced by the Ministry to the EIA notifications which created chaotic environment policies.
Among others, the improper manner of conducting public hearing has been the foremost concern in the process of grant of environmental clearance. The same issue was observed by the Hon’ble National Green Tribunal, Principal Bench, in Adivasi Majdoo Kisan Ekta Sangathan & Anr. V. MoEF & Ors., Appeal No. 3/2011(T) wherein the Court, observed that “…It was a mockery of the public hearing and the procedure required to be followed thereof. All the norms required in conducting a smooth and fair procedure was given a go by…” The Hon’ble Court while setting aside the EC granted to the project held that the MoEF had ignored the procedure as set out in the EIC Notification, 2006.
Through the years there has been a constant conflict between the communities and industries who interfered with there livelihood. One such instance is of POSCO’s Odisha project which faced a number of obstacles since it attempted to convert acres of fertile agricultural lands into a project site. After twelve years, majorly because of public resistance, the project was withdrawn leaving behind a damaged ecology and hopeless villagers who had surrendered their land to the project in turn of compensation.
Missing pieces in the Draft EIA 2020
An amendment always has the larger goal to fill the gap between the previous law and the ground reality but the present Draft EIA 2020 (hereinafter referred to as ‘the Draft’) has the potential to cause harm to the ecology. The Draft, inter alias, appears to remove the main obstacle, the people, who stand in between the industries and damaged ecology.
Primarily, under clause 3.1 of Appendix-I, the Draft reduces the notice period to the affected people from 30 days, which in itself was insufficient, to 20 days.
The projects have been divided into categories as per Clause 5 of the Draft, based on the potential social, environmental impacts, and spatial extent of these impacts. The Proviso to sub-clause (2) of Clause 14 of the Draft provides a list of projects exempted from public consultations and a closer look of the same highlights that inter alia many major projects such as building construction, area development projects, elevated roads or standalone flyovers or bridges, and near the border areas the highways or expressways or multi-modal corridors or Ring Roads & pipeline have been excluded from the purview of public consultation apart from including all the projects falling under the B2 category. The majority of the construction projects end up with the displacement of a huge number of people who have to constantly knock the doors of the Courts for an adequate amount of compensation for several years. Moreover, the ‘border area’ is defined as “…area falling within 100 kilometers aerial distance from the Line of Actual Control…” which will cover huge areas in regions like Northeast and North India.
Another creation of the Draft is an ex-post-facto clearance, as long as the project is permissible in the area, wherein, the project which continued without necessary Environment clearance could now be legalized. As per Clause 22, the violation will be assessed by the Appraisal Committee and the violator may be required to pay a nominal “late fee” ranging between Rs. 1000/- and Rs. 5000/- per day in case of suo moto cognizance and ranging between Rs. 2000/- and Rs. 10,000/-, per day, in case it is reported by Government Authority depending upon the category.
The above provision is an incomplete derogation to the holdings of the Supreme Court such as in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors., C.A. No. 1526 of 2016, wherein a division bench comprising of Hon’ble Dr. Justice D.Y. Chandrachud and Hon’ble Mr. Justice Ajay Rastogi held that “23. The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence….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.”
The Draft EIA 2020 might create ease of doing business for industries in India but the cost that we will have pay will be irreparable and irreversible. The present Draft will only result in the degradation of the environment and will destroy the purpose of the Environment Protection Act, 1986 along with other statutes. Environment lawyer, Mr. Ritwick Dutta was of the opinion that the present Draft is a mockery of law, undermining orders of the National Green Tribunal and legitimizes illegalities done by industries and gives the right to approval for a project that has violated environmental rules for as long as the project is permissible in the area.
The Vishakhapatnam unit of LG Polymers India, a Category A project, responsible for the deadly gas leak in May 2020, should act as an awakening call since it was running without valid environmental clearance substantiating the produced quantity as admitted by the company itself. On the other hand, the MoEFCC is granting fast-track clearances to industries during this lockdown through online platforms which are inefficient to exercise due diligence as it involves varied environmental issues, for instance, there were 31 proposals affecting 15 tiger reserves, sanctuaries, eco-sensitive zones. Such action is in total violation of the norms drawn out by the Hon’ble Supreme Court in the Lafarge judgment.
The present Draft EIA 2020 might lead to permanent damage to the ecology if we don’t step up. The Hon’ble High Court of Delhi in Vikrant Tongad v. UOI, W.P.(C) 37477/2020 observing the far-reaching consequences of the public consultation process ordered the translation of the notification into other languages and extended the time period for filing objections to the Draft EIA 2020 till 11th August 2020.
About the Author:
Debolina Roy is a practicing attorney at the Delhi High Court.
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