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Setting dangerous precedent: Allowing projects to start without an eco-clearance

Submission by independent researchers Meenakshi Kapoor and Krithika A Dinesh, independent researchers, working on environmental regulation and policy matters for years, to Rameshwar Prasad Gupta, Secretary, Ministry of Environment, Forest and Climate Change, on the Draft Environmental Impact Assessment Notification 2020:
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On March 23, 2020, the Ministry of Environment, Forests and Climate Change issued a draft notification in order to replace the Environment Impact Assessment Notification, 2006. The draft was open for public inputs for a period of two months. This implied that the ministry expected the public to comment on the draft law during the national lockdown and a global pandemic. Following submissions from several organisations and policy researchers the comment period was extended to June 30. During this while the country was brought out of the lockdown in a phased manner. However, the country is still encountering a health and economic crisis. A large number of Indians are struggling to ensure their economic, livelihood and even food security. A genuine public engagement at such a time cannot be expected. Therefore, our primary appeal to the ministry is that the draft be withdrawn at the moment. Any discussions or actions for issuing a new notification should take place only at a time when the situation has reverted to normal. Alongside making this appeal, we are sharing our broad concerns with the Environment Impact Assessment (EIA) process, several of these were part of the EIA Notification 2006 and have been retained (if not built upon) in the draft EIA Notification 2020. We request the ministry to pay attention to these while drafting a new EIA law at an appropriate time in future.

Undermining the very concept of prior environmental clearance:

The draft notification seeks to set a dangerous precedent by allowing projects that started to construct or operate without an environmental clearance (EC) to apply for post facto clearance. The Supreme Court as recently as April 2020 said that the post facto clearances are fundamentally at odds with the EIA Notification (In Alembic Pharmaceuticals versus Rohit Prajapati & Ors Civil Appeal 1526 of 2016) . The damage to the environment is often irreversible and can have long term consequences. Fines are also not proven to be an effective deterrent against violations. The examples of repeated violations by projects are many, with recent cases such as the blast in LG Polymers in Visakhapatnam, and Oil India Limited in Baghjan have only highlighted the complacency with which negligent companies act.
Prior to this, in 2017, the MoEFCC had issued an amendment to the EIA Notification 2006 allowing one-time amnesty to projects that initiated work without a prior environmental clearance. At the time, among many justifications provided for the step, one was that it was a stop gap arrangement to deal with the violations which came through after the similar orders by MoEF in 2010 and 2012. The move was highly criticised at that time as well, but making this stop-gap arrangement into a permanent feature is contradictory to the principle of ‘prior approval’.

Shrinking spaces for Public Participation:

We analysed 53 amendments of the EIA Notification passed between 2006 and May 2020. Out of these, 49 amendments required a public notice period and this was bypassed on account of ‘public interest’ more than 70% of the time. Three amendments were issued even after the draft notification was put out for public review. Perhaps, compiling these as a single document was an administrative need. But instead of reviewing the dilutions, the draft EIA 2020 not only retains those, it also slips in several others in the form of exemptions from environmental clearance, scoping, appraisal and/or public hearings.
Besides, the draft EIA law states in clause 14(1)(c), that in addition to public hearing and written comments, if required additional modes of obtaining public views would be used. Would these modes be in addition to public hearing and written comments? Under no circumstance, it should mean that the mandatory public hearing and written comments can be side-lined ‘if required’.
Many projects are brought in vulnerable areas, where historically oppressed people live. Our constitution grants them protections to address the historical injustices meted out to them. However, these protections have been under attack in the name of ‘national importance’ and ‘public interest’. EIAs to this date are not even translated wholly to regional languages, and are written in a highly technical and intimidating language. This only excludes meaningful participation and eliminates any possibility of the socio-political context to weigh in the decision-making on projects. Besides, the draft reduces the notice period for a public hearing from 30 days to “a minimum of 20 days”. This further reduces the scope for reading, understanding and meaningfully engaging with the draft EIA report.

Obliterating the context:

In the last few years the focus of the EIA process has been on standardising, which compromises the incorporation of the contextual realities. Several changes made to the EIA process in the last decade have disregarded the local context and the draft EIA 2020 obliterates it completely. Here are the ways in which it is being done:
  • Emphasis on standardised Terms of Reference for the preparation of EIA studies and standardised sets of conditions with which the environmental clearances are to be granted.
  • Tightening of timelines all across the EIA process. 
  • Bypassing public consultations for several categories of projects. 
  • Preparation of EIA reports by consultants who are chosen by the project proponents, while on one hand poses a clear conflict of interest, on the other these consultants often lack a thorough understanding of the region concerned and tend to carry out slipshod assessments. While including a formal provision for blacklisting of organisations or individuals responsible for including false/incorrect/misleading information is commendable, there needs to be a process that gives an opportunity to citizens to bring such information to the EAC, and a time-bound response to the citizens. With recent analysis suggesting that EACs spend as less as 10 minutes per project in a meeting, it is pertinent that special forums are established for the public to hold projects accountable. 
  • Removing the screening stage from the appraisal process in the draft EIA 2020 reduces the chance for the context to be taken into account. The notification further leaves it to a technical committee to categorise or re-categorise the projects. It is unclear whether these changes in project categorisation will be open for public comments or not. 
  • EIA process continues to be project-centric. However, there is a need for sectoral and regional EIAs to understand the impacts of projects and ancillary activities in totality. 
  • While it is a welcome move that opposing views will be recorded and reflected in the meeting minutes of the expert appraisal committees, but they continue to be part time. This affects a genuine appraisal by committees that can pay attention to the regional and sectoral considerations while examining the projects. Several analyses in the past have highlighted that members appointed to EACs often have conflict of interests or do not have expertise in environmental matters. The members and Chairperson of EAC should be people who have expertise in the subject of environment. Otherwise as stated by NGT in 2014 (Kalpavriksh & Ors versus Union of India in App No 116 (THC )of 2013), it would lead to adverse environmental consequences. Besides, the terms of selection for the Chairperson are not elaborated in the present draft. The NGT had stated that, “It will not be in the interest of any of the stakeholders to leave such a significant appointment (Chairperson) in vacuum, when eligibility of other appointments are provided by exercise of subordinate legislation. Improper exercise of administrative power for such a vital aspect of Environmental Clearance is likely to give rise to arbitrariness”. Despite this order neither the subsequent amendment made in 2014 nor the present draft addressed the specific requirements. 
  • In the draft EIA 2020 the need of appraisal by an expert appraisal committee for B2 projects has been erased. The new approval category called environmental permissions created under the draft for B2 projects seems to be only a tag to be flashed at the time when the projects are challenged for lack of an environmental appraisal. Several projects such as inland waterways, aerial ropeways in eco-sensitive zones, water aerodromes and heliports, which needs careful appraisal, have been put under B2. The EACs in the past have considered several of such projects as A. For example, the EAC in March 2016 had appraises the proposed heliport in Greater Noida as a Category A project. Similarly three water aerodromes in April 2020 were considered by EAC as Category A. The draft has categorised projects as B2 without giving any reasoning. While addition of projects missing in the EIA 2006, in the draft EIA 2020 is a positive change, most of these additions are in B2 category. Environmental permissions given to B2, as stated above are not sufficient to ensure a sincere appraisal of environmental impacts. 
  • Doing away with the need for an EIA report for B2 projects and modernisation of projects takes out the context. Besides the Environmental Management Plan, an EIA consists of analysis of alternatives, cost benefit analysis, anticipated impacts, mitigation measures and environmental monitoring procedures. A thorough appraisal, therefore, is needed to frame clearance conditions that factor in the site-specificity, demography and existing pollution load and risks. Not just this, even viability and desirability of a project gets examined. But if the draft is finalised as is, several projects won’t entail such an appraisal. 

Dilution of EIA process in relation with other laws:

As the EIA process often goes on in parallel with other permissions such as forest clearance, wildlife clearance and land acquisition, it is worrying to see changes in these laws which together with changes in draft EIA can cause irreversible damage to local livelihoods and ecology.
Allowing prior EC to projects even before they have obtained Forest and Wildlife clearance renders the wildlife and forest permissions a showpiece, without any real meaning. The views of the committees responsible for these permissions should be factored in prior to the grant of an EC.
Under the CRZ Notification 2019, any project looking to set up in CRZ I and IV areas, needs the final clearance from the MoEFCC after the approval of the coastal zone management authorities. If activities such as maintenance dredging have been made exempt from the need of obtaining an environmental clearance, which mostly take place in CRZ I and IV areas, what would their fate be? Would MoEFCC overlook the conservation needs of CRZ I and IV areas and let dredging activity continue without any appraisal? If so, it would be a serious let-down of the responsibility the ministry took on for protection of biologically significant areas of CRZ I and IV. The Draft EIA 2020 allows levelling of land even prior to acquisition of environmental clearance. What would happen to this land if the project is not granted the clearance?
In 2019, MoEFCC made the wildlife scrutiny of projects to be located within 10 km of a protected area not mandatory if an eco-sensitive zone (ESZ) around the protected area is notified. There are several examples of how the extent of these ESZs are compromised and made often in consultation with project owners. Often times, no additional buffer is notified in certain stretches around these protected areas and the extent of ESZ in such stretches is stated as 0 km from the protected area. In such a scenario, allowing projects in 10 km buffer zones around protected areas without an oversight from the angle of wildlife is detrimental to India’s biodiversity.

Exemptions based on fluid and unrelated labelling/classifications:

Micro, Small and Medium Enterprises (MSMEs): The draft introduces MSMEs as a differentiating category within the schedule. MSMEs are defined based on their investments. Whereas under EIA, projects are screened based on their capacity, size, location and technology. Investment was a criterion in EIA 1994: projects with investment below 50 crores (which was later changed to 100 crores) did not fall under the purview of EIA. Using this criterion as an easy escape, often projects would be split up to keep themselves under the threshold. This criterion, however, was discontinued when the 2006 Notification was put in place. A reversal to a discarded practice is a regressive step. Further, since the definition of what comes under MSME is not within the ambit of MoEFCC, how can these categorisations be included? In the period of past two months itself, the definitions of projects coming under MSMEs were expanded and changed twice. For example, on May 13 when the Finance Minister announced revised definition of MSME, medium enterprises were expanded from ‘Investments within 10 crores’ to ‘Investment within 20 crores and a turnover of less than 100 crores’. When the Cabinet on June 1 cleared the definition change, medium enterprises were further expanded to ‘Investment within 50 crores and a turnover of 250 crores’. How can EIA exemptions be given on the basis of investment, which not only misses out on capturing the level of risk but also can be easily changed under an altogether different law. Moreover, the MSMEs that have been granted exemptions include industries categorised by CPCB as ‘17 highly polluting industries’ like cement plants, dyes and dye intermediaries. Just emphasising on the investment and turnover without taking industries’ potential to cause pollution and other environmental harms into account is counteractive to the precautionary principle.
Industrial Estates (IEs):While exemptions to projects in Industrial Estates (IEs) were part of the EIA 2006 too, the draft has expanded the scope of notified IEs. Coastal Economic Zones, Special Investment Region, Petroleum, Chemicals and Petrochemical Investment Regions and many others have been added to the already long list of IEs. This, coupled with the generic exemption under Clause 26(16) to projects not listed in the schedule but coming within premises of already approved projects, gives a freehand to projects in IEs.
Hydropower and Renewables: Similarly, by making hydropower projects of less that 25MW as B2 and allowing them to obtain an environmental permission without a public hearing and scrutiny by an expert panel, we are turning a blind eye to the impacts of small hydropower projects on wildlife habitats, local livelihoods and river ecologies. Small hydropower projects, like wind and solar power have been clubbed under renewable projects. However, we need to bear in mind that ‘renewable’ and ‘environmentally harmless’ are not interchangeable words. The expansion of the capacity under B1 category for hydropower projects and exemption granted to solar projects need to be viewed with the recent Electricity Amendment Bill 2020. It advocates assigning targets to state governments for procurement of hydropower (and other renewables) and penalty for not meeting those. Both these changes rely on the assumption that renewables are without any impacts. A push for hydropower and other renewable technologies without understanding and addressing the damages it causes to environment, biodiversity and traditional income generation activities is a dangerous move.
Green Buildings: In the past, the environment ministry had suggested that proposals for green building be considered on priority basis for environmental clearance. The draft EIA 2020 places the buildings of 50,000 to 150,000 sqm area with certificates of ‘green’ buildings under B2 category. B2 projects are not examined by the expert appraisal committee. However, different green ratings have different definitions and criteria. Building performance cannot be evaluated based on green ratings as each one of them assigns a different weightage to a particular aspect of building performance such as energy efficiency, and water consumption. This relaxation would come at the cost of a comprehensive analysis and context-based evaluation of projects by an expert appraisal committee.

Stopping short at pollution impact:

Section 16 of the draft notification allows modernisation projects (without increase in land area) with increase in production capacity of upto 50% to bypass public consultation. Further, it gives the option for projects, on recommendation of the Technical Committees of the State Pollution Control Boards, to replace EIA reports with a “No Increase in Pollution Load Certificate” (NIPLC). The Mauskar Committee had debated a similar amendment in 2009, where the proposed amendment was scrapped eventually because it raised concerns about impacts that will come with the additional raw material and infrastructural requirement. It discussed the additional burden expansion/modernisation and/or change in raw material or product mix may put on natural resources, land and transportation. These additional impacts will not be captured if EIA reports are allowed to be replaced with NIPLC certificates.

Weakening of monitoring and enforcement mechanism:

  • Decreased frequency of compliance reports.
  • Presently while there are explicit provisions for the ministry to take cognisance and projects to self-report both violations and non-compliances, citizens are given no formal mechanism to report.
  • An excessive reliance is placed on companies’ ability to report its non- compliances and violations truthfully. The track record of companies being compliant to environmental norms or in acquiring prior permissions related to the environment has been dismal, to say the least. The Comptroller and Auditor General’s report- Report 39 of 2016 found a range of non-compliances in the 352 projects it audited for enforcement of environmental conditions. The High level Committee on Environment and Forest laws in its report in 2014 mentioned that compliance reports exist without any requirement of ground verification or adequate infrastructure. 
  • In the draft notification, there is no mention of the frequency of monitoring after giving environmental clearance. Clause 20(8), while mentioning that these monitoring reports should be uploaded within 15 days of monitoring, does not bind the authorities to any fixed time period.
  • The validity of environmental clearance for all projects have been increased. This is in stark contrast to the decrease in time period for consultation and appraisal. 
  • In both dealing with violations and non-compliance, reliance is placed on bank guarantee as a measure. A study conducted by Asian Environmental Compliance and Enforcement Network (AECEN) in collaboration with MoEF and CPCB in 2005 analysed the effectiveness of the bank guarantee mechanism set up by the West Bengal Pollution Control Board. While it inferred that bank guarantees can help in compliance, it raised questions on how the amount of bank guarantee should be calculated. It recommended that the amount should be made commensurate to the compliance history of the project. For making bank guarantees effective, a mechanism to calculate the amount, its linkage with the compliance history, annual turnover and other aspects of the project and its utilisation need to be delved into. 

Our Suggestions:

Therefore we request the ministry to retract the draft EIA 2020, and initiate the framing of a new EIA law with meaningful public participation and in a transparent and inclusive manner at a suitable time.
Whenever the redrafting of the EIA law is initiated we suggest the following for it:
a. Remove the sections allowing post-facto environmental clearances entirely.
b. Create a special committee to suggest a mechanism that is deterrent (and not encouraging) to deal with projects that initiate work without an environmental clearance. The committee should have an unbiased and balanced constitution with subject experts, representatives from different social groups and civil society. The suggestions should be framed in consultation with the public.
c. Allow increased public participation in the making of draft EIAs. For example by having citizens to report on biodiversity of an area, past non-compliances of a project, economic activities and other localised concerns.
d. Initiate sectoral and regional EIAs to capture impacts of projects in their totality. e. Reinstate the need for EIA reports for all new, expansion, modernisation and change in raw material, product mix and configuration projects. No Increase in Pollution Certificate should be in addition to EIA reports
f. Allow citizens to have a role beyond public hearings. This can be in the form of allowing citizens a separate mechanism to bring false and incomplete information used in EIA to the EACs and to file complaints on non-compliances and violations. Ensure time-bound accountability to these complaints.
g. Make an independent fund for contracting the consultants to make an EIA report. The project proponents can deposit the requisite money to this fund. Any contracts to the consultants should be granted through a transpa. rent and centralised system.
h. Projects in industrial estates are often found to be flouting environmental norms. A review of environmental performance of industrial estates should be carried out in consultation with citizens. Any exemptions to projects in industrial estates should be allowed only on the basis of the findings and suggestions of the review.
i. To avoid projects becoming fait accompli, environmental clearances should be granted after taking views from the forest advisory committee, and/or Standing Committee- National Board for Wildlife (as applicable). No work on the land should not be allowed prior to environmental clearance.
j. No exemptions should be allowed based on special labelling and categorisations or criteria that are not based on the environmental impact assessment of an industrial sector/ activity.
k. Set the amount for bank guarantee based on existing studies and experiences of State Pollution Control Boards in using bank guarantee as an enforcement mechanism, so that it does not become another redundant measure. Consider linking the amount with compliance history.
l. Selections of members to EAC/SEAC should be made transparent, and the criteria for selection of Chairperson elaborated.
m. Till such a process is initiated, no further dilutions should be made through amendments, official memorandum or expert appraisals in the EIA Notification 2006.
n. For activities that are not listed in the schedule of EIA 2006, they should be examined based on the impacts as observed by the locals and predicted by the subject experts. For example, in case of inland waterways both the local opinion and examination by an expert committee found out that dredging and ship movement holds serious impacts for river ecology and local livelihoods. Hence, it should be appraised as an A category project.
o. In case of the CRZ Notification 2019, the ministry finalised the draft law without incorporating public’s views — in fact it dismissed the 90% objections it received on the draft. Such a blatant disregard to public opinion defeats the very purpose of making the draft laws available for public inputs. It is also in contravention to the pre-legislative consultation policy of 2014 and against the very idea of participatory policy making. Therefore, we would expect the ministry to make submissions it receives on the draft EIA Notification 2020 available online. We also expect that any decision made on the draft would be in alignment with larger public opinion.

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