EIA Draft 2020: “Violation of environmental law is seen as development”

On 11 August, the deadline for public feedback on the draft Environment Impact Assessment (EIA) 2020 notification ended. According to reports, the environment ministry has received at least 17 lakh comments from the public, a record. This has been possible, in part, due to the success of environment and civil society groups in raising awareness about the controversial changes in environment law that the draft EIA proposes. The most contentious of these is the proposal for post facto clearance of projects that have been operating in violation of the Environment (Protection) Act (EPA).

However, this runs afoul of a Supreme Court judgement delivered on 1 April. The court had observed, “The concept of an ex post facto EC (environmental clearance) 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." The environment ministry has also come under fire from the courts for neglecting to publish the notification in Indian languages other than English and Hindi. On August 13, the Supreme Court rejected the central government’s petition challenging a Delhi high court order to print the draft EIA notification 2020 in 22 languages.

Mint spoke to environmental lawyer Ritwick Dutta, founder and organizing trustee of Legal Initiative for Forest and Environment (LIFE) about the legal contradictions of the draft EIA. At present, Dutta is pursuing litigation on subjects related to environmental clearance and he sheds light on the way that environment impact assessments have always worked in India. Edited excerpts.

Environmental lawyer Ritwick Dutta is the founder and organizing trustee of Legal Initiative for Forest and Environment.

From a legal and constitutional standpoint, how is one to view the resistance of the government to publish the notification in regional languages—as now directed by the Delhi and Karnataka high courts?

It is rather unfortunate that in a multilingual society, the government is adamant that a law which impacts the lives of people across the length and breadth of India, is to be made available only in English and Hindi. We must understand that Hindi is not the ‘national language’ of India but only the ‘official language’ of the central government. There is no constitutional requirement that the official work of the state governments must be in Hindi. We must keep in mind that the India is not a ‘melting pot’ of diverse culture and language resulting in one language and one culture. It is rather a ‘salad bowl’ where varied cultures and languages exist together in harmony without losing their identity, flavour and uniqueness. It is the constitutional, statutory and moral duty of the central government to take a draft law to the people. Opaqueness while enacting a law was the hallmark of the British Raj; it has no place in a democratic society.

With the idea of post facto clearance becoming a reality in the present notification, how do you see this impacting both current environment laws and precedent—in context of the recent Supreme Court order as well as the NGT judgement—and future litigation?

Post Facto is not a new idea or practice. The government, the courts and the legislature have all allowed post facto to become the de facto practice over the last many years. The central idea behind post facto is that if a person invests large sums of money in an illegal activity, such as construction of a shopping mall, mining, industry, there is a presumption that the investments made were bona fide: with the intention to benefit the nation as a whole and for altruistic purpose. There is also a presumption that the law was violated because of ‘ignorance’. The government’s view is that taking penal action would create hurdles in ‘ease of doing business’; while for the Courts, such illegal activities have been justified by highlighting the need to ‘balance environment versus development’. Unfortunately, violation of environmental law is seen as ‘development’. Neither the Supreme Court nor the NGT (National Green Tribunal), nor the various high courts have come out strongly against post facto approval.

The draft EIA notification 2020 foregrounds the ‘ease of doing business’, diluting the existing consultation process. Where does this fall in the balance between constitutionality, environment protection and economic growth?

The principle aim of the draft EIA notification 2020 is how not to do an environmental impact assessment. The focus is on getting an environmental clearance and permission. We must differentiate between environmental clearance and environmental impact assessment: India is under an international obligation to conduct EIA’s. It is a scientific, legal and social tool to assess the likely environmental consequences of a proposed project. The draft EIA notification has three main objectives: first, to ensure that most ecologically destructive activities do not require an EIA; second, create broad exceptions for EIAs such as higher thresholds; third, ensure that those (projects) that require EIAs are not scrutinised by either the public or experts. There is no evidence that all these dilutions will help achieve economic growth. The simple reason is that even under the existing EIA 2006 regime, no project is ever rejected. The environment ministry’s track record is 100% approval for all projects. And you cannot improve if you are already delivering 100%. The government has created a myth that environmental laws are a hurdle to economic development, and most people, including the courts, happily believe in this myth.

There was a legal backlash against activist groups expressing their reservations with the notification, with the use of laws such as the Unlawful Activities (Prevention) Act UAPA and the IT Act, that were later withdrawn. What kind of precedence does this set for environment activism?

Well, all the backlash has just the opposite effect. Because of the backlash by the government by illegally invoking the UAPA and IT Act, the issue of EIA is no longer the domain of environmental groups. It is today an issue of free speech, right to participate and of the meaning and implications of democracy itself. The governments backlash has helped unite diverse social groups and interests and generate public debate on a poorly drafted, myopic, unconstitutional, discriminatory and regressive law which has no place in a country which has more people dying because of poor environmental quality than anywhere else in the world. The draft EIA 2020 notification cannot be termed as a legal document; it is at best a white paper of how the central government wants to create a new society which encourages and rewards those who have no regard and respect for the rule of law.