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Draft EIA Notification, 2020: Institutionalising Information Blindspots
The Draft EIA Notification circulated by the government proposes to overhaul the framework for granting environmental clearances. While the stated objective is to “streamline” and “rationalise” processes, a closer look reveals measures that go against some of the fundamental principles of environmental governance. In an attempt to expedite the EIA process, the proposed changes compromise the very logic of a decision-making system.
The author has collaborated on and draws upon, the report prepared by the Vindhyan Ecology and Natural History Foundation on the Draft EIA Notification. The report is available at https://vindhyabachao.org/publications/reviews/798-review-draft-eia-2020 author would like to gratefully thank the reviewer for carefully reading the draft and suggesting comments that improve the readability and quality of this article.
Amid the COVID-19 crisis, other policy developments might be easily missed. However, proposals are underway to make fundamental changes to the legal framework that is at the heart of some of the most contentious environmental conflicts in India.
The central government has circulated a draft Environmental Impact Assessment (EIA) Notification (MoEFCC 2020), which is intended to replace the existing EIA Notification, 2006. The stated intent of this iteration is to consolidate the incremental amendments to the 2006 notification, streamline and rationalise processes, and implement decisions of various courts. However, a closer look reveals measures that do not align with some of the fundamental principles of environmental governance. In its attempt to expedite the EIA process, the proposed changes compromise the very logic of a decision-making system. At a time where the unintended impacts of uncontrolled environmental degradation are felt by every community, a revised system should reflect greater emphasis on strengthening, rather than weakening environmental safeguards.
EIA frames the flow of information leading up to the decision to grant or reject environmental clearance (EC) to a project. The long-term, direct and indirect impacts on a complex ecosystem and livelihoods need to be understood in deciding whether to grant clearance and under what conditions (Craik 2008). The effectiveness of such a system—which is an attempt to “institutionalise foresight” (Robinson 1992)—lies in its ability to reflect the relevant information in the appropriate stage of the process to meet the objective of sustainable development.
Categorisation of Projects
The categorisation is supposed to be on the basis of the “potential social and environmental impacts and spatial extent of these impacts.” Admittedly, not all activities require an equal level of scrutiny. However, the draft notification inexplicably recategorises many activities to a lower requirement of scrutiny. For instance, liquefied natural gas (LNG) terminals, which are listed as Category A in the current notification, are proposed to be recategorised as B2 in the draft notification. Likewise, many irrigation projects, metallurgical industries, and aerial ropeways, inter alia, which are considered as Category A projects in the current framework, have been reduced to Categories B1 and B2. The dilution of the EIA requirements of these projects leaves out of consideration significant environmental impacts. Any recategorisation should be evidence-based, and not arbitrary.
Quality of Information
The EIA report is prepared according to the terms of reference (ToR) for the EIA study, which is determined by the relevant appraisal committee. This stage, called “scoping,” is crucial since it sets out the premise of the information to be included in the EIA report. The changes proposed in the draft notification would reduce this stage to a formality. It relies excessively on standard sector-specific ToRs, and the regulatory authority has the discretion to refer a project for scoping to the appraisal committee only where it is “deemed necessary.” While standard sector-wise ToR can be an indicative starting point, the scoping stage is far from redundant. The ToR for EIA studies should involve an independent application of mind to identify the context-specific information that might need to be evaluated, in addition to the general information outlined in the ToR. By reducing the relevance of the ToR stage, the draft notification creates the possibility of generic EIA reports, which do not include significant context-specific factors.
The draft notification also dilutes the quality of information included in the EIA report. It allows for projects to proceed on the basis of baseline data for only one season for most projects. This is severely inadequate for a comprehensive understanding on environmental impacts since it would not reflect seasonal or temporal variations. In addition, it allows for the collection of baseline data “at any stage, irrespective of the application,” not only making the scoping stage irrelevant, but also allowing for data, which is up to three years old, to be used. In densely developing areas, such data might be severely outdated and would leave out the cumulative impacts of other projects that may have commenced at the time of application for clearance. In 2016, the Comptroller and Auditor General of India (CAG) Report on Environmental Clearance and Post Clearance Monitoring had scathing findings on the quality of EIA reports precisely on such EIA practices (CAG 2016). Instead of including provisions for improving the quality of EIA reports, by preventing such practices, the draft notification proposes to legitimise them.
The EIA study is conducted by an authorised consultant on behalf of the project proponent. This itself has been a contentious issue, since it raises questions of conflict of interest and a possibility that information that is disadvantageous to the project may not be presented at all (Wathern 2004). The best safeguard against this is a robust and broad-based public engagement with the EIA process. However, the draft notification betrays a deep mistrust of public engagement, restricting the scope for such engagement.
It proposes to remove the requirement of public consultation for many projects by recategorising them as B2 category projects. In addition, it creates widely worded exemptions from public consultation. Specifically, it leaves open the possibility of any project to be classified as exempt if it involves “strategic considerations as determined by the Central Government.” Arguably, all developmental activities have strategic considerations, and such vague phrasing could be misused to pre-empt any expression of dissent by affected communities. For projects that need to undertake public consultation, it proposes to reduce the notice period for the public hearing from 30 to 20 days. The draft notification also restricts the engagement of affected communities in the operational stage of projects. It is important to highlight that the EIA framework provides for continuous engagement and accountability of actors and institutions (Vatn 2015). This is available in the present framework where violation of EC conditions can be registered by any person. However, under the draft notification, complaints can be registered only by regulatory bodies, or raised by the proponent itself.
None of the proposed changes acknowledge the need to address the fact that public engagement in complex, technical issues like EIA need to be supported with capacity building and additional safeguards. Rather, it significantly reduces the existing avenues of engagement. These provisions, presumably to aid efficiency, will reinforce the information gaps and biases of the existing system and would have long-term consequences.
Ex Post Facto Clearance
One of the most problematic provisions of the draft notification attempts to institutionalise ex post facto clearances, which turn the entire logic of EIA on its head. The provision, which accepts such “recurring” illegalities as a reality, is surprising since the Supreme Court has held on multiple instances that such a concept is not valid in law. In Common Cause v Union of India (2017), the Supreme Court had held that “the concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence including EIA 1994 and EIA 2006.” In a more recent judgment, Alembic Pharmaceuticals v Rohit Prajapati & Ors (2020), the Supreme Court held unequivocally that an executive notification allowing post facto clearance goes against the parent statute.
Not only is a post facto clearance bad in law in the current environmental jurisprudence, it defeats the purpose of EIA. The fundamental premise of EIA is that a comprehensive assessment of all impacts is considered before a project is granted clearance. The regularisation of illegal activities is a tacit approval of the illegalities and reflects a fait accompli; it pre-empts the possibility of rejecting the project since it has already been undertaken. Second, the impacts of activities that have commenced—particularly insensitive or ecologically significant ecosystems—may be irreversible. Finally, in the absence of proper baseline studies, the ecosystem changes may not even be understood in their entirety. Any mitigative measures would be either a very meagre attempt or only a paper reality.
Information Choices of EIA
In its ideal sense, the EIA framework should reflect a deliberation of complex, interdependent and multidimensional considerations to facilitate an informed decision. The proposal of a revised framework should enable better decisions, and not just expedited or convenient decisions.
Undoubtedly, it is a challenging task to simultaneously address concerns of efficiency, comprehensiveness, engagement and uncertainty. It is precisely for these challenges that emerging and well-recognised norms of environmental governance should be relied on; most pertinently, the precautionary principle and environmental rule of law.
The opportunity that a new framework provides should be used to introspect on the shortcomings of the current system. The manner of collection of information and the process of appraisal need to be aligned with the logic of EIA. The sequential nature of each of these processes directly speaks to the quality of information that is collected and the independent application of mind at each stage. However, the proposed change dilutes the rigours of many such requirements and reduces them to mere paper formalities. The draft notification, if notified, would systemically weaken the decision-making framework. As a consequence, projects and activities could be granted clearance on the basis of limited or outdated information. These information gaps will lead to sanctioning activities that could irreversibly threaten fragile ecosystems and the broader ecological balance.
Alembic Pharmaceuticals v Rohit Prajapati & Ors (2020): “Civil Appeal No 1526 of 2016,” Supreme Court judgment dated 1 April.
CAG (2016): “Report on Environmental Clearance and Post Clearance Monitoring,” Performance Audit, Report No 39 of 2016, Comptroller and Auditor General of India, New Delhi.
Common Cause v Union of India (2017): SCC, SC, 9, p 499.
Craik, Neil (2008): The International Law of Environmental Impact Assessment: Process, Substance and Integration, Cambridge: Cambridge University Press.
MoEFCC (2020): “Environment Impact Assessment Notification, 2020 (Draft),” Ministry of Environment, Forest and Climate Change, Government of India, New Delhi, http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf.
Robinson, Nicholas (1992): “International Trends in Environmental Impact Assessment,” Environmental Affairs Law Review, Vol 19, No 3, pp 591–621.
Vatn, Arild (2015): Environmental Governance: Institutions, Policies and Actions, Cheltenham: Edward Elgar Publishing.
Wathern, Peter (2004): Environmental Impact Assessment: Theory and Practice, London: Routledge.
This article was first published in Economic & Political Weekly on 11 May 2020. The original article can be accessed here.