The Dilution of Environment Policy with a Special Focus on the Environmental Impact Assessment Process

Session Report
Nikita Bhardwaj

LPPYF Law and Public Policy Youth Fellowship is an Online National Summer School Program, a Two- Month Online Immersive Legal Awareness & Action Research Certificate Training Course and Internship Program, from June-August 2023 by IMPRI Impact and Policy Research Institute. An informative and interactive panel discussion on “The Dilution of Environmental Policy with a Special Focus on the Environmental Impact Assessment Process” was held on the 14th July 2023 by Adv Lara Jesani, Independent Law Practice Professional based in Mumbai and a Human Rights Activist & Member, at People’s Union for Civil Liberties (PUCL).

The session began with the opening remarks of the chair, Prof Vibhuti Patel who provided a brief outline of the discussions and deliberations that had taken place in the previous sessions of the fellowship.

Adv Lara Jesani started the session by highlighting that the Right to a Healthy Environment has been recognised as an integral part of Article 21 by the Supreme Court. 

A Timeline of Some Important Environment-Related Laws and Conventions 

The crucial starting point of the world’s shared commitment towards the environment was the United Nations Conference on the Human Environment, Stockholm Conference which also ignited India’s environmental regime. Prior to this, the world had witnessed two wars and the industrial revolution which neglected the negative environmental impact in the strive for economic development. Some of the principal laws enacted at this conference were the Wildlife (Protection) Act, 1972, Water (Prevention and Control of Pollution) Act, 1974, Forest (Conservation) Act, 1980, Air (Prevention and Control of Pollution) Act, 1981

In 1976, there were two crucial two amendments to the Indian constitution. Article 48A created an obligation on the part of the State to protect and improve the environment and safeguard the forests and wildlife of the country. Article 51A(g) mandated that every citizen is duty-bound to protect and improve the natural environment and show compassion for living creatures.

In 1992, the United Nations Conference on Environment and Development known as the ‘Earth Summit’ resulted in the Rio Declaration which paved the way for many important principles that we know today. For instance, the precautionary principle states that we don’t have to wait for environmental damage to take place and we must prevent it. The polluter pays principle puts a strict liability on polluters to pay for the damage they have to the environment. An important document also came up during the time, the United Nations Framework Convention on Climate Change (UNFCC) which was ratified by 197 countries and further strengthened by the adoption of the Kyoto Principle in 1997.

Following this, we got the first Environment Impact Assessment (EIA) notification in 1994 which brought the principle of prior environment clearance before the beginning of any project. It catered to assessing the impact of a project on the environment and peoples’ rights affected by it. Additionally, it also looked at the possibility of mitigating the negative impacts of the project and compared the value derived from the project to its costs. 

In 2005, India got the Right to Information (RTI) Act. Adv Lara Jesani mentioned that it is the biggest tool in the hands of environmental activists. This act has changed the course for environmental jurisprudence in the country as it paved the way for public consultation processes in matters related to the environment and resulted in lacunas in the approval of projects. Moreover, the EIA Notification, of 2006 mandated firms to provide certain information and created prohibitions and restrictions on projects and activities they wish to undertake. The RTI Act enabled the common public to go to the government and seek information about any project and thus challenge it to ensure that their rights are protected.

Following this came a very important law for separate green courts. The National Green Tribunal Act, 2010 was brought in specially to adjudicate environmental disputes to expedite the process of environmental justice. The Coastal Regulation Zone Notification, 2011 talked about the impact of projects in the coastal region. Since land is required for all developmental projects, the Land Acquisition Act, 2013 further strengthened the movement for environmental protection as it provided market-rate compensation for land.

In 2015, India ratified the Paris Agreement which proposed to limit global temperature increase this century well below 2 degrees, preferably to 1.5 degrees. In the same year, the movement to combat climate change gained impetus with the introduction of the Sustainable Development Goals 2015.

India also brought in Corporate Environmental Responsibility (CER) through an office memorandum in 2014 and 2018. Due to confusion over whether CER is part of Corporate Social Responsibility, the law was scrapped in 2020.

Approach to Environmental Rights- Steps to a Rights-Based Approach 

  • Access to Information
  • Participation in Decision Making Process to protect our individual rights.
  • Due Diligence and Impact Assessment, both social and environmental, by experts. Due Diligence also looks at the track record of the people and whether they are undertaking the task with honesty.
  • Access to Justice – preventive, remedial, compensatory and reparatory measures.
  • Defending democratic spaces to fight big projects that could harm the nature and protecting environmental defenders.

Stages of the EIA under Indian Law

EIA mandates the requirement of prior environmental clearance. It is a 4 stage process that involves –

  1. Screening of applications which involves a thorough check by the appraisal committee on all aspects of a project like the land and quality of material used, the social and environmental impacts. 
  2. Scoping – Expert Appraisal Committee (EAC) determines the Terms of Reference addressing all environmental concerns for preparation of the EIA Report
  3. Public Consultation – Concerns of project-affected persons and stakeholders are considered after presenting the EIA report. 
  4. Appraisal – It involves detailed scrutiny by EAC of the EIA Report and the outcome of public consultations. The committee makes the decision of whether the projects should be passed or not.

The Situation Today

India has been ranked 180/180 on the global Environmental Performance Index (EPI) in 2022, according to a biennial report by Yale and Columbia Universities released alongside the World Economic Forum in Davos, Switzerland. 12.5 percent of the people in our country are dying on account of environmental factors such as pollution, disasters and unsafe water. Thus, protecting the environment should be the primary focus of legislation in our country. 

Meanwhile, as per the World Bank’s Ease of Doing Business ranking, India jumped to the 63rd position out of 190 countries in the 2020 report (since scrapped). The major attributing factor of this jump is the deregulation in the granting of clearances which insinuates the failure of the laws that have been enacted to protect the nature. 

Today we are staring at a crisis where land grab and forest encroachment is taking place for industrial and commercial projects. There is extensive mining, destruction of natural resources, loss of traditional livelihood and increasing water crisis and food insecurity. 

Dilution of the EIA

Over the past few years, there have been a series of amendments to the EIA notification (2006) to weaken the law. 

  • Relaxations in favour of polluting sectors, industries – thermal power, mineral beneficiation, coal mining, chemical fertilizer industry, highway and infrastructure projects and building construction
  • Bypassing the public consultation process
  • Single Window clearances
  • Validity of Environmental Clearance( time period during which the project is supposed to be executed) increased from 5 to 7 years, with further renewal of 3 years
  • Post-facto clearances and regularisation of projects and activities which had not taken clearances at the start of the project
  • Relaxations in ElA criteria and procedure

Draft EIA Notification 2020

  • A complete departure from EIA Notification 2006 and its commitment towards environmental protection
  • Allows post-facto clearance i.e. certain businesses can effectively set up operations without EIA
  • Private consultants can be engaged for preparing ElA Report
  • 40 different types of industry automatically exempted from prior environmental clearance
  • The requirement for public consultation was removed for several projects
  • Time for public hearing reduced from 30 to 20 days

With over 20 lakh objections to the amendment, it is kept in abeyance but is a looming threat to our surroundings. She highlighted that several projects were cleared unethically without proper impact assessment during the COVID-19 pandemic and there have been attempts to dilute the RTI Act.

In her concluding remarks, she stressed the need for awareness and vigilance by the common people and advocated the need to keep voicing our opinions to prevent any harm.  

Nikita is a research intern at IMPRI.

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