From 2006 to 2020: The Ongoing Problems of the EIA
Updated: Oct 19, 2020
- Stella James and Nayana Udayashankar*
In the early days of the lockdown, as everyone worried about the spread of COVID-19 and mourned the deaths, environmentalists were grappling with another piece of news. On April 11, 2020, the Ministry of Environment, Forest and Climate Change (‘MoEFCC’) officially made public a draft Environment Impact Assessment (‘EIA’) notification.
This came along with other controversial moves, such as the notification of the construction of the coastal road in Mumbai as an essential service by the Bombay Municipal Corporation. This controversial road project has seen massive protests and litigation by environment groups for its threat to marine life and the livelihood of fish workers. In the same month, the Karnataka government gave clearance to the controversial Hubbali-Ankola railway line, that cuts through biodiversity hotspots in the Western Ghats, leading to the resignation of members of the National Wildlife Board. In Uttarakhand, the Forest Department proposed transferring more than seven hundred hectares of the Rajaji National Park for the Kumbh Mela.
We often hear of the importance of finding the balance between ‘ecology’ and ‘economy’. The EIA framework is the practical part of how this balance is tried to be achieved. In India, the EIA notification first came into effect in 1994 [‘the 1994 Notification’]. The 1994 Notification was seen as problematic too as it covered only a few industries and many were left out of the scope of impact assessment. It was amended several times to keep pace with industrial growth. In 2006, a new notification was brought with the objective of consolidating the various amendments to the 1994 Notification [‘the 2006 Notification’]. However, the 2006 Notification diluted the provisions in the 1994 Notification in many ways.
In April this year, MoEFCC released another new draft EIA notification, which is now in the public domain for comments [‘the 2020 Draft Notification’]. Like the previous notification, this draft further dilutes several important environmental protections.
In this 2-Part article, the problems of the EIA framework, in general, and that of the 2020 Draft Notification, in particular, have been examined. As an organization working on tourism impacts, we look at EIA from the particular lens of how tourism impacts are taken into consideration. Part 1 scrutinizes some of the larger issues of EIA - the undemocratic nature of EIA governance in India, the gaps in the framework, and how EIA interacts with other environmental laws. Part 2 examines the notification in relation to tourism, giving specific examples of how the large gaps in the EIA notifications have major environmental and social impact. Comic artist Rohan Chakravarthy has aptly captured some of these dilutions in his comic:
As illustrated by Rohan above, the 2020 Draft Notification has severely diluted the EIA framework of India. Unfortunately, the dilution in the 2020 Draft Notification is simply a continuation of the paradigm of environmental relaxations given to industries over the years. These relaxations have been effectuated through amendments to various environmental norms, such as the EIA Notifications of 1994 and 2006, as well as the Coastal Regulation Zone notifications of 2011 and 2019.
The EIA framework should be the lifeline of environmental governance in any country. But in India, right from its inception, the EIA notification has been a rather weak and undemocratic link in the framework of environmental governance.
I. Undemocratic Nature of EIA
At the outset, the EIA framework in India is merely a ‘Notification’ under the Environment Protection Act, 1986 (‘the Act’). Thus, it is a subordinate legislation, brought into effect as executive decisions, without the full power of a statutory law, and without discussions in the legislature. As pointed out by Saldanha et al in Green Tapism, EIA would have been subject to far more scrutiny and debate had it been brought about, at least as, ‘Rules’ to the Act. Section 26 of the Act provides that Rules to the Act be brought before the Parliament. The nature of the legal instrument used to bring about norms is a significant marker of how important the subject is for governance. The choice of a ‘Notification’ is an indicator of the cavalier position of EIA in environmental governance in India.
Secondly, such an important part of environmental governance has barely seen any public consultation. Before the 2006 Notification, the MoEFCC had organized sporadic consultations with stakeholders, such as the corporate sector, civil society organizations, and state government representatives to discuss the draft National Environment Policy. In one such consultation on the Environment Policy, the EIA notification was simply slipped in as an agenda for discussion. The changes planned to be introduced to the 1994 Notification were sprung upon unprepared participants in the name of consultation. There were no broad-based consultations, and no efforts were made to reach the public through the media.
The 2020 Draft Notification would also have come in without adequate debate, if not for the concerted efforts of students, environmentalists, and artists. The draft notification was published on the website for public comments on March 23, 2020 - just a day before the first national lockdown was announced, and a few days after restrictions had been announced in several states. On April 11, 2020, when the lockdown was not fully lifted, the draft notification was published in the gazette. MoEFCC extended the period for public comments only after several online petitions and letters were written, and there was outrage about the deaths and injury caused by the Vizag gas explosion. Later, the Delhi High Court pushed the deadline to August 10. The Karnataka High Court on August 5, 2020, expressed concerns over MoEFCC’s failure to publish the draft notification in regional languages.
However, there are still several concerns about what the dilutions to environmental protections will really mean, which are dealt with in detail in Part II. To understand the problems with the 2020 Draft Notification, it is important to first understand the basic framework of EIA in India, and why seemingly minor changes in the notification have serious real-life implications.
II. Issues with the Framework of EIA
At its core, the EIA notification is a regulatory framework that requires certain commercial projects to obtain a prior Environmental Clearance (‘EC’) or Environmental Permission (‘EP’). This clearance is to be granted after taking into account the environmental impacts of the project. A set process for the examination of these impacts and issuance of EC has been prescribed under the notification.
A. Process of EIA
The general process of clearance is:
In the stage of ‘Scoping’, projects are issued Terms of Reference (‘TORs’), based on which the impact assessment is done.
The ‘Preparation of EIA Report’ is done by the project proponent, that is, the company that wants to develop the project.
‘Public Consultation’ is managed by the Pollution Control Board and is done in 2 ways- through public hearings and written responses.
An ‘Expert Appraisal Committee (EAC)’ at the state or national level looks through the EIA Report and other documents and makes recommendations to grant or reject clearance.
Finally, the Impact Assessment Authority (‘the Authority’) at the state or national level, is the regulatory authority that actually ‘grants or rejects’ the EC.
TORs, issued by the Authority, provide the scientific basis on which the EIA Report is undertaken. This may, for example, require the proponent to collect data on the impact on topography, soils, land-use change, etc. TORs are critical to the process of assessing environmental impact as the EIA Report and the appraisal are based entirely on them. The context in which the project comes up is also important. For instance, a multi-storey construction in a hilly area would be different from a multi-storey construction along the plains. Hilly areas could be vulnerable to landslides whereas coastal areas are vulnerable to coastal erosion, each requiring specific reference points for environmental assessment. However, in many cases, standard TORs are issues based on the sector, without taking into account the peculiarities of the landscape. In the 2020 Draft Notification, certain projects like ‘Highways’ and ‘Building Construction’ are to be issued standard TORs within 7 days.
Additionally, the process for clearance and the level at which a project’s environmental impacts are assessed, vary significantly depending on the ‘Category’ under which a project falls.
B. Categorization and Levels of Assessment
The Schedule is a crucial part of the EIA notification. It contains a detailed list of all projects that require an EC or EP. Any project falling outside this Schedule does not require an environmental clearance, even though it may have serious environmental impacts.
Furthermore, under the 2006 Notification and 2020 Draft Notification, the Schedule is categorized into 2 major categories - Category A and B. Categorization is an important marker, as it decides what level of assessment and appraisal the project goes through. The chart below shows how the process for clearance differs based on the ‘Category’, as per the 2020 Draft Notification.
Under the 2020 Draft Notification, unless specifically mentioned, a project under Category B2 does not have to go through the appraisal process at all. The Authority grants the EP after the submission of an Environment Management Plan (‘EMP’) and other required documents. Projects under Category B2 also do not go through public consultation. The change in category, therefore, has a serious consequential impact as it does not undergo the same level of scrutiny.
C. Public Consultation
Public consultation is one of the most important processes for clearance. Public consultation is done in 2 ways- through a public hearing and written submissions. Local communities have been at the forefront of resisting projects that are harmful to the environment. In the very technocratic process of the EIA, public consultation is the only space where those who will be affected by the project and the general public can engage with the impacts of the project. However, there are several exceptions and dilutions within the public consultation process.
Some exceptions and gaps in public consultation are-
The agency charged with conducting the public hearing can report that it is ‘not possible’ to conduct the public hearing in a manner that will enable the views of the concerned local persons to be expressed freely. Based on this, the Authority may decide that public consultation in the case need not include a public hearing.
As per the Appendix to the 2006 Notification, authorities were required to ‘widely publicize’ the draft EIA Report within their respective jurisdictions. This provision has ‘now been removed.’
‘Several exemptions to public consultation’ are provided under Paragraph 14(2) of the 2020 Draft Notification, including for Category B2 projects, building construction, industries like chemical fertilizers, and several others that fall within Industrial Estates, defence projects, and others.
Under the 2020 Draft Notification, the ‘time for public hearing’ has been reduced from 45 to 40 days, thereby giving affected persons even lesser time to formulate their response.
As can be seen, there are some significant gaps and issues within the EIA 2020 Draft Notification. Further, the current form of EIA also has issues in the way that it interacts with other environmental laws.
III. Isolation from other Environmental Laws
One of the biggest flaws under the 2006 Notification has been the failure to integrate EIA with other frameworks that form a part of environmental governance. The 2020 Draft Notification has also lost the opportunity to fix that. In the last few decades, it has been globally acknowledged that the rights of indigenous peoples and local communities are a major part of environmental governance, both in terms of environmental justice as well as in understanding that local communities are the primary stewards of their environment.
In India, the rights of communities, who have historically been at the forefront of environmental governance, have been recognized under the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. This right was further recognized under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 under which consent for land acquisition was made mandatory. Other laws, such as the Biological Diversity Act, 2002, the Panchayats (Extension to Scheduled Areas) Act, 1996, and Panchayati Raj Acts of different states, and several other laws give rights to local governments to manage environmental resources. These laws were meant to protect the lives and livelihood of communities that are resource-dependent and to allow citizen participation in developmental decisions.
Yet, there has been little done to integrate the EIA framework with the current framework of environmental governance in India. The right of communities to meaningfully participate in decision-making has been repeatedly ignored. The penultimate step of ‘public consultation’ is very limited because, by the time this process starts, the EIA study is complete and the draft report is already prepared.
The EIA process must, drawing from different laws, recognize the critical role of Panchayats in the development of the area by ensuring full participation and consent of the Panchayat from the ‘Scoping’ stage itself. The Forest Rights Act, 2006, and the Biodiversity Act, 2002 have created committees with the explicit purpose of environmental protection. These local environment protection committees must be closely involved in the process of assessing impacts and planning mitigation measures. Furthermore, rather than a simple ‘consultation’ process, the full consent and participation of the Gram Sabha must also be secured within the EIA framework.
The EIA framework is supposed to be a tool to ensure a balance between environmental protection, human rights, and economic development. However, in India, the framework has failed to ensure either adequate protection to the environment or the rights of the people affected. The primary focus on easing the process of economic development has been a huge blow to the environmental systems in our country.
In the last few months, with the halt on industrial production, there has been a marked improvement in air quality, as well as in water quality of the Ganga, Yamuna, and Kaveri rivers, along with an unprecedented surge in the population of birds and butterflies. With the reduction in pollution, we have been waking up to the insistent calls of the Asian koels, leafbirds, jungle mynas, and babblers, rather than the insistent sounds of heavy drilling in the construction site next door. The sights and sounds of the lockdown have given us a rare and powerful glimpse of what our lives could be with healthier ecosystems.
It is with this knowledge and understanding that we must approach the care and safety of our ecosystems in a post-COVID world. Maintaining healthy ecosystems require robust environmental governance that protects biodiversity, maintains air and water quality, and regulates human activity. For this, it is crucial to withdraw the current 2020 Draft Notification and drastically revise and strengthen the EIA framework.
Authors’ Note: We call on you, as environmentally conscious travellers, to endorse this letter to the Environment Secretary, asking to withdraw the draft notification and to hold broad consultation to draft a new strong Act for environment impact assessments.
*Stella James and Nayana Udayashankar are affiliated with Equitable Tourism Options (EQUATIONS). EQUATIONS is a research, campaign, and advocacy organization, working on supporting environmentally sustainable and people-centred forms of tourism.
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