Tuesday, October 27, 2020

Environmental Impact Assessment (EIA) Draft notification 2020 explained: Facts vs allegations of harming the environment

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— Consider reading the article Environmental Impact Assessment (EIA) Draft notification 2020 explained: Facts vs allegations of harming the environment on OpIndia website —

Congress Party and a lot of non-governmental organisations (NGOs), especially from Tamil Nadu, are criticising the draft Environmental Impact Assessment (EIA) 2020, issued by Narendra Modi Government, saying that it will harm the environment.

In the month of March 2020, Ministry Of Environment, Forest and Climate change had proposed certain amendments which are incremental to the EIA 2006 which was issued on 14 September 2006, in the super-session of EIA 1994. The Notification was issued under relevant provisions of the Environment (Protection) Act, 1986.

What is Environmental Impact Assessment (EIA)?

EIA is a management tool to minimize adverse impacts of developmental projects on the environment and to achieve sustainable development through timely, adequate, corrective and protective mitigation measures. In a layman’s words EIA, is a process to evaluate the environmental impact of a proposed project (be it railways, bridge, roads, buildings). A decision-making tool whereby people’s views are taken into consideration for granting approval to any developmental project or activity.

History of EIA in India

The Indian experience with Environmental Impact Assessment began over 20 years back. It started in 1976-77 when the Planning Commission asked the Department of Science and Technology to examine the river-valley projects from an environmental angle. On 27 January 1994, the then Union Ministry of Environment and Forests, under the Environmental (Protection) Act 1986, promulgated an EIA notification making Environmental Clearance (EC) mandatory for expansion or modernisation of any activity or for setting up new projects.

The Ministry of Environment, Forests and Climate Change (MoEFCC) notified new EIA legislation in September 2006. The notification makes it mandatory for various projects such as mining, thermal power plants, river valley, infrastructure (road, highway, ports, harbours and airports) and industries including very small electroplating or foundry units to get environment clearance.

Changes in 2006 to Environment Protection Act, 1986

The Act was amended in 2006 making the EIA report mandatory for mining, thermal power projects, river valley projects, infrastructure development and electroplating and foundry units. The 2006 amendment also put the onus of clearing the projects on the State government. Till then, it was the responsibility of the Union government.

Environment Impact Assessment Notification of 2006 has decentralized the environmental clearance projects by categorizing the developmental projects in two categories, i.e., Category A (national level appraisal) and Category B (state-level appraisal).

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Category A projects are appraised at the national level by Impact Assessment Agency (IAA) and the Expert Appraisal Committee (EAC) and Category B projects are appraised at the state level.

State Level Environment Impact Assessment Authority (SEIAA) and State Level Expert Appraisal Committee (SEAC) are constituted to provide clearance to Category B process. ‘B’ was further categorised into B1, which required an EIA report, and ‘B2’, that does not require such a report.

What was the Need For The 2020 Draft Notification?

The Hon’ble High Court of Jharkhand through its order dated 28 November, 2014 ruled that the proposal for environment clearance must be examined on its merits, independent of any proposed action for alleged violation of the environmental laws. The Notification clearly provides that cost of remedial measures would be imposed on the violators seeking environmental clearance after an assessment of the damage caused to the environment.

National Green Tribunal (NGT) ruling in 2018

How do the effects of sensitive environmental issues emerge from natural and man-made causes led the NGT to pronounce various directions. The NGT also emphasised on the priority areas regarding the environment that can be strengthened with appropriate environmental monitoring mechanisms.

The Major Change: Post Facto Approval

One of the major changes, which is misinterpreted by those opposing the EIA 2020 is the Post Facto Approval. It can be seen that the opposition argues against the EIA that ANY project can begin operation without environment clearance and then seek Post-Facto Approval. The fact is that the post-facto approval will apply only for those projects that are currently in operation without which have not been given a green signal with respect to environment clearance. No new project can seek post-facto approval. Further, the exemption of Environment Clearance is on specific projects and not all. Here is an Excerpt from the Draft EIA 2020 Section 4.

Requirement of Prior Environment Clearance or Prior Environment Permission:-
(1) New projects or activities including expansion or modernization of project or activities listed in the schedule under Category ‘A’; Category ‘B1’; and Category ‘B2’ that are required to be placed before Appraisal Committee as specified in the Schedule, shall require Prior Environment Clearance from the concerned Regulatory Authority before start of any construction work or installation or establishment or excavation or modernization, whichever is earlier, on site or before expanding the production and / or project area beyond the limit specified in the prior-EC or prior-EP, as the case may be, granted earlier.

(2) New projects or activities including expansion or modernization of project or activities listed in the schedule under Category ‘B2’ that are not required to be placed before Appraisal Committee as specified in the Schedule, shall require Prior Environment Permission from the concerned Regulatory Authority before start of any construction work or installation or establishment or excavation or modernization, whichever is earlier, on site or before expanding the production and / or project area beyond the limit specified in the prior-EC or prior-EP, as the case may be, granted earlier.

(3) It is, however, clarified that ‘construction work’ for the purpose of this notification shall not include securing the land by fencing or compound wall; temporary shed for security guard(s); levelling of the land without any tree felling; geotechnical investigations if any required for the project

In fact under the earlier EIA 2006, any “Category B2” projects did not require an Environment Impact report. But the EIA 2020 also requires few of the Category B2 projects require Prior Environment Clearance process to be placed before Appraisal Committee.

Further, the post-facto approval are only for 40 categories of projects which are declared as non-mining by the State governments, solar thermal power plants, and units inside approved special economic zones or notified industrial clusters. For example, extraction of ordinary clay or sand by manual mining, by the Kumhars (Potter) to prepare earthen pots, lamp, toys, etc. as per their customs, extraction of ordinary clay or sand by manual mining, by earthen tile makers who prepare earthen tiles, removal of sand deposits on agricultural field after flood by farmers, customary extraction of sand and ordinary earth from sources situated in Gram Panchayat for personal use or community work in the village etc. Refer to the link [PDF] for all the categories.

Further, the EIA clearly states that ANY NEW PROJECT, will require the permission for operations It gives exemption to certain B2 projects which are exempted to be placed for appraisal committee but still required Prior Permission to operate. Refer the above excerpt

Approval for infrastructure projects

Opponents of the draft argue that no environment clearance is required for infrastructure projects and thus roads can be constructed taking away lands of poor farmers.

However, EIA 2020 only speaks of those projects concerning National Defence and Security or Involving strategic considerations NOT all infrastructure projects. The draft also exempts industries of “strategic importance” from getting environment clearance. This is in line with India’s defence requirements.

Truth About Exemptions To Public Hearings

As per the opposition proposed legislation exempts public hearing. According to the draft notification, all projects require public hearings. The only exemptions are for things such as modernisation of irrigation systems, projects under notified industrial areas, projects that don’t have an environmental impact and those of national defence importance.

Below is an excerpt from the draft EIA 2020 on public hearing:

Public Consultation
The public consultation shall ordinarily have two components comprising of:
a. A public hearing at the site or in its close proximity, district wise in case of the project area located in more than one district, to be carried out in the manner prescribed in the notification, for ascertaining concerns of local affected persons;
b. Inviting responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project;
c. In addition, if required, based on the nature of project, public consultation through any other appropriate mode may be recommended by the Appraisal Committee, or the Regulatory Authority, on case to case basis;

(1) However, the Regulatory Authority may decide on the feasibility and requirement of Public Hearing and/or consultation in the case of defence projects being considered
(2) All Category ‘A’ and Category “B1” projects of new or expansion proposals or modernization with capacity increase more than 50 percent shall undertake Public Consultation.

Time cut in Public hearing:

The cut in the time given for public consultations is very much fair as this would reduce the manoeuvring by anti-social elements and vested interests and three months is sufficient time for the hearing.

There have been several amendments issued to the EIA Notification, 2006, from time to time, for streamlining the process, decentralization and implementation of the directions of Courts and National Green Tribunal. Though the EIA Notification, 2006 has helped in realizing necessary environmental safeguards by assessing environment impacts due to the proposed projects, that require Prior Environment Clearance at the planning stage itself, the Central Government seeks to make the process more transparent and expedient through implementation of online system, further delegations, rationalization, standardization of the process, etc.

Draft EIA 2020 is against corruption. The public hearing for projects is a very ugly process in reality. There are deliberate reasons to provoke Locals to obstruct and delay the project, who when bribed, allow the project in their locality.

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