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EIA Draft 2020: What next for the controversial environment law?

The environment ministry’s deadline for public feedback on the draft EIA 2020 notification ended on 11 August. The ministry has received nearly 17 lakh public comments

The draft Environment Impact Assessment notification could shut local communities out of the decision making process on new industrial projects in biodiverse areas.
The draft Environment Impact Assessment notification could shut local communities out of the decision making process on new industrial projects in biodiverse areas. (Photo: AFP)

The window for public feedback on the contentious draft Environment Impact Assessment (EIA) notification closed yesterday, 11 August. According to a report in the Hindustan Times the Ministry of Environment, Forest and Climate Change (MoEFCC) said it has received an estimated 17 lakh comments from the public on the EIA. “We are still compiling the submissions. We have been overwhelmed with the number of comments," a senior ministry official told the paper on 10 August.

This would make it quite a watershed moment in terms of public participation in environmental lawmaking. For conservationist and former Indian Forest Service (IFS) officer, Manoj Misra, this makes for a big difference since 2006, when the current EIA regime had been put in place, modifying India’s first EIA notification in 1994. “This is the wonder of social media. In 2006 jangal me mor nacha kisne dekha?" he says, laughing. In a pre-social media world, says Misra, such modifications in environmental law had little chance of entering the public consciousness. “Now because of social media and its reach, this is what has happened. It is not that all of a sudden the nation has become very smart or sensitive to these issues. It is the media."

“It’s been all social media, because we haven’t been able to meet and talk and gather. And also you know a lot of movements have conflated in the environmental space, which is a very good thing," says conservation biologist and environment law and policy expert Neha Sinha. Sinha sees this moment as a sign that people are feeling fed up with business-as-usual, especially with the pandemic and news of industrial disasters in the past few months in India and abroad. “I always say that this is the generation that is living with chronic environmental degradation as a way of life. And they definitely feel that public good cannot be decided by anyone except the public," she says.

For the past few months, hashtags like #DraftEIA2020, #EIADraft2020 and #EIA2020 has been continuously trending across the country. Using them, activists and civil society groups have critiqued the draft, educated the public on the changes in rules and encouraged people to send in their feedback to the government.

When the youth climate network Fridays for Future India’s online EIA activism generated high engagement, with over a thousand emails sent to the environment ministry, FFF India’s website was blocked in July. On 12 July, the group received a notice stating they had been charged under the Unlawful Activities (Prevention) Act (UAPA). This was eventually withdrawn citing a “clerical error" by the Delhi police. Later, a notice was sent under the IT Act, which too was ultimately withdrawn.

Yuvan Aves, a volunteer with FFF India from Chennai, says that he doesn’t expect much from the government. “The EIA needs to be strengthened on the fulcrums of environmental protection and respecting nature’s rights and social equity. So on these two grounds, it needs to be strengthened not diluted. Public pressure has been huge. So if the government doesn’t give a damn about that and passes it, there’s going to be an uprising. Hopefully they will withdraw it," he says.

The draft has also sparked a political face-off between environment minister Prakash Javadekar and Congress leader Rahul Gandhi. On August 10, Gandhi termed the draft disgraceful and dangerous. “Not only does it have the potential to reverse many of the hard-fought gains that have been won over the years in the battle to protect our environment, it could potentially unleash widespread environmental destruction and mayhem across India," he wrote on a social media platform.

Environment minister Prakash Javadekar has said that protesting the draft EIA is unnecessary and premature. (PTI Photo/Atul Yadav)(PTI28-07-2020_000028B)
Environment minister Prakash Javadekar has said that protesting the draft EIA is unnecessary and premature. (PTI Photo/Atul Yadav)(PTI28-07-2020_000028B) (PTI)

In response, Javadekar was quoted by PTI to say, “We have received thousands of suggestions which we welcome. We will consider those suggestions. Then take a call and come out with the final draft. So people jumping just on the draft is not fair practice. Those who want to now protest, took many of the big decisions without consultations during their regime. It is unnecessary and premature."

The process has been dogged by controversy ever since the MoEFCC released the draft in the Gazette on March 23, a day before the country went under lockdown to contain the covid-19 pandemic. But if the ministry believed that the draft would pass unnoticed, it was in for a shock. Both the draft notification and the the ministry's handling of the mandatory public feedback process, created outrage across the country.

The most problematic part of the debate is the 2020 draft itself. Following a rationale to promote the “ease of doing business", it dilutes the assessment process, and effectively shuts out the public from having a say on how new projects get environmental clearances. The most controversial change in rule the draft proposes is the provision that projects can receive clearances post facto. A project that is already operating in violation of the EPA can now apply for clearance. This despite a Supreme Court bench of Justices D Y Chandrachud and Ajay Rastogi noting in a 1 April judgement that, “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." In a word, illegal.

The new draft also exempts a long list of projects as outside the purview of the EIA, including any project the government labels as “strategic". The draft says that no information on “such projects shall be placed in the public domain". The exempt list also includes all inland waterways and national highways projects. The other point of concern is that construction projects of up to 150,000 sq. m shall be exempt from EIAs, which would then include the largest infrastructure projects in the country, like airports. It also seeks to curtail public hearings on individual environment impact assessments from 30 to 20 days. The draft also seeks to move a large variety of projects to the B2 category. Projects in this category require no environment clearance at all.

“Any project can be called strategic by the government. But what is strategic? It could be a defence installation or it could be a rayon factory. Somebody will say an underwear factory is strategic," says Sinha. The existing EIA already has problematic aspects which actually need to be tightened, says Sinha, rather than diluted further.

One of these is the practice of project developers employing an EIA consultant to create a report. “This ensures that no study report will ever be honest. I am a consultant and somebody gives me a job, obviously I will have to follow what he wants. There are serious lacunae in the existing 2006 and 1994 notifications. So there is actually a compelling reason to re-appraise, to actually revisit the entire system," says Misra. Diluting the public hearing process and placing increasing number of projects in categories that require no environment clearances, impinges on the idea of democratic participation, he says. “You are basically saying that people will have no role whatsoever. You are totally muting people’s voice. And this will create far more problems," he says.

A robust Environment Impact Assessment is needed to prevent environmental catastrophes like the Baghjan gas leak in Assam. Getty Images
A robust Environment Impact Assessment is needed to prevent environmental catastrophes like the Baghjan gas leak in Assam. Getty Images

Sinha is cautiously optimistic with what lies ahead. “If the government is hell-bent on changing the law, I would hope that we could have a fresh look at this through independent experts. Now this is just a hope because it seems that they have tried to change the EIA act to make it even more industry-friendly," she says. Sinha proposes that the government sticks with the current notification, and strengthen it further. “That would be done by making the EIA consultant process more indirect and less of a foregone conclusion," she says.

Misra hopes that the government takes cognizance of the country-wide opposition to the draft and pay attention to what people are saying. “The least that the ministry should do is to create an independent expert committee to vet these responses," he says, adding, “Whatever this external committee does, it should be done in a transparent manner. So that the nation understands how they have gone about their task."

However, Misra fears that the ministry won’t budge from its stance. In which case, he says, the entire exercise would have been just a formality. “With that in view, people will be compelled to go to court against this notification if it is finalized," he says. According to him, the Supreme Court judgement from 1 April paves the way for a clear legal challenge. He also says that predicating the draft on “ease of doing business" goes against the constitutional mandate of the MoEFCC. “The constitutional mandate under Article 48A is to protect and improve the environment. So at least, as a ministry, you do your job?"

Sinha says that one of the rationales on which the notification could be challenged is that it harms the environment. “This draft considers the environment to be a problem. At least a few of the provisions are against the nature of the EPA. For example, EIAs are supposed to happen before the project. But the draft is telling them it’s ok, go ahead don’t do an EIA and we’ll find a way around it," she says.

As things stand, on 5 August, the Karnataka high court issued an order to the MoEFCC that the ministry couldn’t publish the final notification based on the draft EIA till September 7. A division bench held that, “Prima facie it appears to us that the Right of Citizens to file objection has been taken away."

(With inputs from Asmita Bakshi)

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