- Mridula Mary Paul*
The law is not inert. It neither originates in a vacuum nor operates in ether. This is especially visible in the case of laws that govern human interaction with the environment, given the immensely competitive demands made on the natural world in contemporary times. Environmental Impact Assessment (‘EIA’) norms, that determine the conditions under which environmental damage by industry or developmental projects is acceptable, are classic examples. In a world where “neoliberal hegemony has shaped environmental governance” (Bond et al 2020), the EIA is a creature concocted by a neoliberal world order to drape ‘business as usual’ behind a green cloak. In these instances, the law and legal regimes it creates can be termed “machines of extraction” (Capra and Mattei 2015). This article looks at the EIA as a political device (Cashmore et al 2010) and suggests that India’s EIA regime has been propped up in the interest of the prevailing economic system to be subservient to its needs.
The EIA originated in the United States in 1969 under the National Environmental Policy Act, in the context of activism against environmentally destructive economic practices (Weston 2004). From its inception, the EIA has largely been an ostensibly scientific device that aims to allay public concerns while primarily prioritizing the needs of industry and governments over the environment (Weston 2004). Having been enshrined in Principle 17 of the 1992 Rio Declaration as an important tool to balance the needs of the environment with development, every country in the world has some form of EIA regulation in place (Bond et al 2020). Its widespread acceptance can also be attributed to pressure from international financial institutions. These institutions made its adoption a condition for the grant of finance for countries transitioning to a liberalized economy (Menon and Kohli 2020).
India’s EIA regulation was formally introduced through a notification of the Ministry of Environment and Forests (as it then was) in 1994, under the Environment (Protection) Act, 1986. It was subject to twelve amendments (Menon and Kohli 2007) until 2006, when a full-scale revision led to the passage of an entirely new notification. The 2006 EIA Notification has been modified over a hundred and fifty times vide amendments, circulars, and office memoranda, with many of these creating exemptions and exclusions for various industries (MoEFCC 2014; MoEFCC 2019). An analysis of environmental clearances granted between 1994 and 2013 reveals a clearance rate of 70%, that is telling of the pronounced bias towards industry within the EIA process (Gupte 2020; Ramesh et al 2020).
The newest overhaul, which is presently in the draft form (MoEFCC 2020), has received strident criticism for liberally hacking away at the fundamental tenets of the EIA process (Menon and Kohli 2020). The notice period for public hearings, acknowledged as a critical component of EIA by the Ministry of Environment, Forest and Climate Change in submissions before the National Green Tribunal (Jyothimani 2014), has been reduced across the board, and entirely done away within a number of projects (MoEFCC 2020). The draft notification reintroduces previously unsuccessful amendments to the 2006 EIA Notification, such as waiving the requirement for prior environmental clearances in certain cases of project expansion (Chandrachud 2019). This amendment had been dismissed at the time by a ministerial committee that noted that it was “unacceptable that the modernization and expansion of projects be removed from the environment clearance regime” (MoEFCC 2009). This view was subsequently upheld by the Supreme Court, which observed that the “EIA Notification is an operationalization of the precautionary principle, which forms a part of the environmental law of India” (Chandrachud 2019).
Despite post-independence India having instituted a number of progressive regulations for environmental protection and conservation, threats to the environment continue to mount (Shahabuddin and Sivaramakrishnan 2019). The last four decades have witnessed unprecedented rates of industrial takeover of natural and farmed lands (Menon and Kohli 2015). This is only to be expected, given that practically every iteration of the EIA regulation has resolved the problems in the earlier versions in favour of industry, to the extent of weakening even the basic environmental safeguards previously in place. (Menon and Kohli 2020; Menon and Kohli 2007). Bolstered by findings that non-compliance with clearance conditions has never once resulted in the withdrawal of permission granted and the near-zero rejection rates, experts have called EIA a cover for governments and industry to put up a pretense of environmental concern (Menon and Kohli 2020; Menon and Kohli 2015).
An inefficient and toothless EIA regime is not specific to India. Some note that it is naïve to expect industry to commission studies that verify the viability of their projects and accurately report the findings, even assuming that experts on their payroll will valiantly present an adverse result (Weston 2004). Others use EIA in a neo-Gramscian framing to comment on the machinations of powerful neoliberal forces that have infiltrated governments and manoeuvre governance systems in their favour (Bond et al 2020; Bravante and Holden 2009). The failure of the EIA in India to conform to its purported mandate also gives us a vital clue to the flaw that underlies environmental regulation more generally. Many of us have been parroting the same old line for far too long – that the laws are good, but it is the implementation that lets it down (Shahabuddin and Sivaramakrishnan 2019). What if their inefficacy is not attributable to the pathological failings of the Indian administrative system, or to an undisciplined populace? What if it is the laws themselves that are at fault? What if they are willfully engineered to fail?
The EIA presents a blatantly obvious case of an environmental regime entirely held hostage by governments, to service the needs of industry. Some suggest that that is the very purpose behind retaining it as subordinate legislation, in contrast to an Act of Parliament (Menon and Kohli 2020). When pliability is the essence of an environmental regulation, it is clear that the environment is no one’s priority. When the government no longer operates as a check on industry, but as an enabler of economic interests, there is little store to be left in environmental regulation. India’s EIA regime presents evidence of how governments have irredeemably sacrificed the environment at the altar of their best interest. The new EIA draft is an attempt to engineer yet more latitude into the environmental clearance process, in a manner that confirms recent accounts (Dutta 2020) that India’s environmental governance is entirely compromised. It is likely that there is more regulatory dilution in the offing. We can save ourselves the trouble of being caught unawares when that happens, if nothing else.
*Mridula Mary Paul is a lawyer and environmental policy specialist, and works with the Ashoka Trust for Research in Ecology and the Environment (ATREE), Bengaluru as Senior Policy Analyst. She has previously practiced before the Madras High Court and has a degree in Development Studies from the University of Oxford.
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