By Anandvardhan Yagnik*
Barely a few days into the Covid-19 lockdown and people all over the country had started realizing and sensing how the skies were bluer than before, the air purer and the Ganges cleaner. The carbon emissions fell drastically as human activity came to a halt, the animals started returning to their natural habitats, and the environment started rejuvenating. The silver lining amidst the misery brought about by the decrease in economic activity and growth is the unprecedented decline in pollution. But is it really so? Considering that the lockdown is temporary, the causation therefore is momentary and short term. Short term, I say, because environmental protection and sustainable development have never been on our priority list.
The rise of Covid-19 has not only made us realize the importance of a sound public health system in all nations and the need for the revision of laws regarding nutritional security but in this lockdown, the recuperating ecosystems have also made us realize the importance of the environment. We Indians have a history of reassessing what is meaningful and important to us and our nation, only after the bad things happen. That is the most plausible justification I can attribute to the way we’ve been neglecting its conservation and letting the ruling dispensation normalize with apparent ease the dilution/s, one after the other, in the environmental clearance process. Probably we are waiting for an environmental catastrophe to strike. But well, the lockdown then won’t help. It would be too late to mend our ways.
For the conservationists and the intellectuals who follow environmental updates, they know of the dilutions, but sadly beyond those circles, others have failed to notice as to how since 2014, the most important part of the environment clearance process, the “Public Hearings” are given a go by/exempted or reduced to a mere farce.We take so much pride in the epithet of being the world’s largest democracy, only to probably realize later that it ceased to be “one”. More so since with each passing day, freedom of speech and expression, participation, deliberation, discussion, all of which constitutes the basic tenets of democracy, stand eliminated and the absence of the same has now stopped raising eyebrows as we are too busy to notice as the transgression continues to be normalized.
But, well, of late, since all of us have been attempting to be human, to be sensitive towards our surroundings, thanks to Covid-19, let us take this opportunity to understand the importance of “Public Hearing” in Environment Clearance Process and have an informed opinion to prevent its dilution any further, so that even after the lockdown is long gone, the skies would continue to remain bluer, the air purer, the Ganges and other water bodies cleaner, the animals happier and the eco system and the environment healthier.
Environment Impact Assessment
UNEP defines Environmental Impact Assessment (EIA) as a tool used to identify the environmental, social and economic impacts of a project prior to decision-making.The fundamental stages of EIA in India include Screening, Scoping, Public Consultation and Appraisal. Public consultation is the third mandatory stage in the process for grant of environment clearance and it includes within its scope the component of Public Hearing.
Origin of EIA
India is a signatory to the United Nations Conference on the Human Environment held at Stockholm in 1972, which led to the culmination of Environment Protection Act, 1986. However it was only in the year 1994, it was decided to make EIA statutory and hence in January, 1994, a notification under the EP Act, 1986 was promulgated necessitating EIA for grant of environment clearance for specified projects.Origin of Public Hearing/Public Participation in Environment Protection
In Independent India, people’s participation has been put into black and white only in the Representation of the People’s Act, 1951 which gives the citizens the right to vote. But sadly, thereafter and apart from this, public participation has been a vague concept. Much later emerged the concept of public hearing in the process of environment clearance. India was a signatory to UNCED and hence adopted the Rio Declaration in 1992, which led to the introduction of public hearing in EIA process. The concept and the need of Public Hearing were crystallized in the year 1997 by way of amendment to the EIA Notification of 1994. However, it was by way of the EIA Notification, 2006 which made it an integral and mandatory part of the process, for mostly all projects with some exceptions.Judiciary’s Response towards Strengthening Public Hearings in Environmental Clearance Process
In practice, either on part of the executive or the project proponent, public hearings have never been a welcoming proposition, prior to 2014 or even thereafter. Even prior to the year 2014, there have been several instances of the then dispensation/s perpetrating and colluding passively, if not actively, in turning a blind eye to the procedural lapses qua public hearings and participation of the people. However, since 2014, the collusion between the industry and the regulator is so evident and the dilution at the behest of corporate interests so grave that it almost seems as if we’ve transitioned from a socialist economy to a capitalist economy where the corporate giants are the new “state” and where environment protection and public participation is seen as a threat to development.Thus, prior to the year 2014, the public hearings were sought to be defeated by way of procedural lapses and irregularities and after 2014 they are sought to be defeated and eliminated by way of legislative/executive tools.
The “decentralized democratic space”, as our Supreme Court fondly addresses public hearings as, have been a subject matter of challenge on innumerable occasions on grounds of illegalities and irregularities in the method and manner of how they are conducted by the project proponent.
The intervention of judicial and quasi judicial forums and the subsequent invalidation of grant of clearance on grounds of substantial irregularity in the public hearings can broadly be categorized into four grounds: procedural impropriety, adequate and authentic information, place of hearing and adequate consideration.
Procedural Impropriety
One of the foremost judicial interventions qua the issue of public hearing was by the Hon’ble High Court of Gujarat in Centre for Social Justice Vs. UOI reported in AIR 2001 Guj. 71. The Hon’ble High Court while dealing with a case of procedural impropriety in the conduct of public hearing by the project proponent, filled up the lacunae left by the executive and laid down detailed guidelines with regard to each aspect of conducting of public hearing from issuance of notice to publication of final report which are to be mandatorily followed.In another landmark case being Samarth Trust and Another Vs. Union of India and Others; Writ Petition (Civil) No. 9317 of 2009, the Hon’ble High Court of Delhi again while dealing with procedural impropriety in the conduct of public hearing/s, held that not only the affected people and people living in close proximity of the project site but all those who have “plausible” stake in the protection of environment are eligible to participate in the public hearing.
In another matter of Utkarsh Mandal Vs. Union of India; Writ Petition (Civil) No. 9340 of 2009, the Hon’ble High Court of Delhi, once again while dealing with the issue of Public Hearing, inter alia, held that the notice intimating about public hearing should be circulated at least thirty days prior in point of time and should be repeatedly circulated after a period of ten days so as to ensure maximum participation. These directions were subsequently translated into an Office Memorandum issued by the MoEF.
Adequate and Authentic Information/Adequate Consideration
Another instance wherein irregularity ran not just into procedural aspects but also qua lack of adequate and authentic information and adequate consideration by the project proponent and the regulatory body is the litigation concerning construction of Nirma Cement Plant at Mahuva in State of Gujarat, wherein the public hearing was nothing less than an eye wash. In the EIA report, the project proponent did not disclose that the factory was to be set up on a water body. Moreover the advertisement for public hearing was given in two newspapers i.e., Indian Express and Jai Hind, which had completely insignificant circulation in that region so as to frustrate peoples’ participation. The fact that GPCB permitted Nirma to give advertisements in such newspapers suggests that such autonomous institutions that are created to enjoy freedom also play active role in frustrating the mandate of Public Consultation. The objections raised during the public hearing were not incorporated in the minutes of the meeting and the written objections too were ignored. All of this because in the Vibrant Gujarat Summit, initiated by the then chief minister Narendra Modi, Government of Gujarat, had through MoU given commitment to provide for land for the project without taking into consideration the law.Place of Hearing
Subsequently, another instance is of 2010, concerning the Adani SEZ in Kutch. To frustrate people’s participation, public hearings of two different projects i.e., Adani’s Mundra SEZ and KPGL Power Plant, for environmental clearance were fixed on the same date at the same venue. There cannot be any time period fixed for completion of public hearing as everyone’s grievances ought to be heard and redressed. ence neither can the time limit for first public hearing be curtailed nor can the participants for the second hearing be made to wait all day. Either way, it would result in frustrating people’s participation. A petition (Mamad Siddik Kungara and Others Vs. MoEF and Others [2010]; Special Civil Application No. 12896 of 2010; High Court of Gujarat) was preferred by the affected villagers and after the intervention of the Hon’ble High Court of Gujarat; the public hearings were directed to be conducted on separate dates.A classic instance that includes all the ingredients of a farcical public hearing is that of the Shapoorji Pallonji Company Ltd’s project of constructing Greenfield Port and Thermal Power Plant near the Gir-Somnath region. To start with, the EIA Report was full of incorrect and misleading information and data; No wide publicity of EIA Report as contemplated in EIA Notification was given; out of 3000 participants only a few were permitted to express their concern and grievances.
Those who spoke against were compelled to sit down by the Collector in a threatening and insulting language, Most of the time of the public hearing was used up by the Collector, representative of the project proponent and the Member of Parliament from Junagadh Constituency Mr. Dinu Bogha Solanki who gave a political speech in favour of the proposed project. Few of the participants who could speak were assaulted and/or beaten in the presence of the Collector and others. Therefore, video recording demanded under RTI was denied. Prior to public hearing, the project proponent had employed through Member of Parliament about 300 young villagers from three Villages in the vicinity in order to influence the public hearing. The Collector being a Presiding Officer acted as if he were a representative of the Company instead of playing an impartial and neutral role. Minutes of the public hearing were not prepared immediately on the spot and the signatures of all the participants were not taken.
Another exemplar, is of an ongoing litigation wherein for expansion of M/s Nayara Energy Ltd.’s [Erstwhile Essar Oil Ltd.] refinery capacity, the MoEFCC while issuing Terms of Reference for expansion of the said petrochemical refinery, as a part of public consultation under EIA Notification, 2006 has only provided for public objections in writing without holding any public hearing which is on the face of it without jurisdiction, power and authority and is again illegal and invalid. However, during the pendency of the petition before the High Court of Gujarat, the proponent has decided to conduct the public hearing which was subsequently kept in abeyance because of the lockdown and Covid-19 and is yet to take place. However, this tendency of doing away with public hearing for expansion purposes has been gaining trend amongst project proponents’ post 2014 and the same is being actively accommodated by the regulatory body.
In January, 2020, the Mundra port waterfront development project in Mundra, Kutch, Gujarat had sought an exemption from conducting public hearing for its expansion works. The Expert Appraisal Committee approved an amendment to the Terms of Reference issued to the proponent and exempted the project from public hearing that the panel itself had originally recommended. The same is now pending approval of the MoEF.
Last in the line of judicial trends, is the instance of the Ultra Tech Cement Ltd., wherein, UltraTech had been granted clearance in January 2017 to mine limestone from Talli-Bambhor site in Talaja Taluka of Bhavnagar District, Gujarat, for 50 years. In the public hearing that took place, there was a 100 percent opposition, however, disregarding the same, the project proponent had been granted approval.
It has been observed that the project proponents mostly find it more feasible to push through their projects quietly rather than involve the public because for them the public participation has always been seen as a hindrance thinking that it would delay the project and compel them to revise, thus, inter alia, jeopardizing their profit margin goals.
The trajectory of these instances show how the public hearings till 2014 suffered from irregularities which led to frustrating the objective of public hearing and people’s participation, to which the judiciary had to rise to the occasion every now and then. However pursuant to the year 2014, with the frenzy of state led dilutions, the public hearing in itself is sought to be eliminated thereby leaving no scope for any sort of intervention even for a constitutional court to come to rescue of something as democratic as a public hearing.
State Agenda and the Dilutions
Since 2014, however, even the state agenda has shifted from welfare of the state, to being industrial friendly; the project proponents are now extended more and more backing from the state authorities to render the stage of public hearing nugatory so as to “ease the doing of business”.Over the years, several attempts have been made to do away with the need of public hearing. This has been especially true for projects concerning coal mining expansions. From 2012 to 2014 multiple notifications were issued to exempt coal mining expansion projects to a certain capacity, from the requirement of public hearing. And with this policy of exemption from public hearing, intentioned by the executive coupled with project proponents began the attempt at normalizing the doing away with the requirement of public hearings in the environment clearance process.
In the year 2017, with a view to further the ruling dispensation’s goal to increase coal production to 908 million tonnes by 2019-20, the expert body i.e., the Expert Appraisal Committee, held that for expansion of coal mining projects up to forty percent capacity will not require public hearing. This relief was extended on a proposal made by Coal India Limited.
Subsequently, in the same year, the MoEF issued a notification, giving an opportunity to all projects which were running without environmental clearances to apply for EC. Basically it was a one-time scheme to turn illegal units into legal units like the state does with unauthorized constructions and tax evasions. However, this was worse because the units were permitted to be converted into legal units through a simplified clearance process which exempted public hearings.
The subsequent doom for community participation came with the introduction of the 16th January, 2020 amendment of the EIA Notification, 2006. By way of amendment, the MoEF exempted hydrocarbon exploration activities from the requirement of EIA and Public Hearing. The amendment was brought about in response to the proposal by MNC giant Vedanta for a project to explore hydrocarbons in the Cauvery delta. The public opposition to the project was so strong that had it been mandated for it to pass through the rigours of EIA and public hearing, the project probably would not have seen light of the day and hence our “industrial and investor friendly dispensation” with a view to “ease the business” brought into effect an amendment and straight away exempted the nature of project/s from the requirement of EIA.
In the schedule to the EIA Notification, the nature of projects have been classified category wise. Projects in category A are the ones with huge potential impacts and require mandatory environmental clearance while projects in category B are further classified into B1 and B2, wherein projects classified as B2 do not require environmental clearance. Thus B1 projects are the ones which require EIA report for appraisal and also have to undergo public consultation process while projects classified as B2 do not require EIA study and hence do not have to undergo public consultation.
Thus, hydrocarbon exploration projects, which use environmentally damaging techniques to drill bore wells hundreds of kilometres deep, have now, by way of an amendment been moved from Category A project to a Category B2 project which do not require environmental clearance and hence no EIA and public hearing. It was illogical to come to a conclusion that the risks and impact of a project which had a potentially huge impact on the environment would have been lowered overnight. Rather it was the corporate interests which were to be served at the risk of the environment and the health of the people.
The project proponents have always feared public participation and hence ever since its introduction in the environment clearance process, one would hardly find a case at hand where the public hearing was conducted in all propriety and in its true spirit and substance despite of the judicial forums chalking out various guidelines to maintain the sanctity of the concept and need of public hearing. Initially the hearings were sought to be frustrated by way of procedural lapses, impropriety and irregularities. Now, the shift from socialist to capitalist ideology and the change of agenda to facilitate ease of business required that time be saved and hence to accelerate the development process, the hearings are simply done away with, with the help of legislative/executive tools.
Moreover, if one studies the EIA reports which are prepared by the project proponents and start getting familiar with the concept and content of it, one cannot fail to notice that these reports are not even close to being called credible. Most of the times they contain copy pasted content from other reports and the rest is just generic data with not much concern regarding the impact of the project at hand. I may be sounding cynical but in India everything comes at a price and hence the regulatory bodies of the likes of SEIAA and EAC are mostly manageable by the project proponents and thus they would never call out the fraud perpetrated by the proponents. Hence, the importance and essentiality of public hearings comes into play. Armed with all the information and the ground reality, when the likely impacts of the project are put to question, discussed and debated, and then the issues adequately addressed and redressed, is when it would lead to sustainable development.
Draft EIA Notification [March 2020] – The Final Nail in the Coffin
After normalizing the exempting of public hearing over a period of time, the subsequent and the biggest blow to public consultation has been in March, 2020. The MoEFCC has released a new draft of the environment impact assessment notification to replace the EIA Notification of 2006. The new draft notification seeks to incorporate and consolidate the several notifications and amendments issued from 2006 till date, however, the environmental activists say that it is a lot more than that and rather the new draft EIA notification is a consolidation of environmental violations.Clause 14(2) of the draft notification which is still at the stage of public comments exempts public consultation for projects including modernisation of irrigation projects, all building, construction and area development projects, inland waterways, expansion or widening of national highways, all projects concerning national defence and security or involving “other strategic considerations” as determined by the central government, all linear projects like pipelines in border areas and all the off-shore projects located beyond the 12 nautical miles.
The notification further holds that “all projects concerning national defence and security or involving other strategic considerations, as determined by the central government, shall require prior-environment clearance, from the ministry without any change in the category of the project” but “no information relating to such projects shall be placed in the public domain.” Moreover, as per the 2006 notification mining projects were entitled clearance up to 30 years which as per the new draft notification has been increased to 50 years, in the beginning.
The provision is dampening, arbitrary and suffers from excessive delegation, to say the least. In the name of “strategic importance”, the executive can now exempt any project from public consultation thereby frustrating the whole objective of public consultation.
In December, 2016, MoEF had brought into effect an amendment in the 2006 notification whereby, the building and construction projects covering 20,000 to 1,50,000 sq meters of built up area were permitted to proceed without environment clearance. Thus essentially, the big realty were sought to be exempted from the need for environment clearance and public consultation. However upon challenge before the National Green Tribunal, the amendment notification was set aside, the same being in violation of the provisions and spirit of the Environment Protection Act and EIA Notification, 2006. Hence, now to invalidate the effect of NGT’s judgment and to carry forward with its agenda of “ease of doing business”, the new draft notification is sought to be introduced.
Since the attempts to make the process easier for corporate was against the spirit of the EIA Notification, 2006, hence the spirit itself is sought to be exorcised and a new spirit which is conducive to its agenda is sought to be brought into effect.
Moreover, the new draft notification also cuts time for the public hearing. The 2006 notification provided for a period of thirty days notice period for the public to respond and required the public hearing to be wrapped up in 45 days while the new draft notification specifies for a minimum period of only twenty days for notice period and reduces the time for completion of public hearing to 40 days.
We have seen how the judicial forums have laid much stress on the 30 day notice time period for public hearings. Yet ignoring the judicial wisdom and speeding up the process for the setting up of industries, the executive has arbitrarily sought to dilute the provision.
Wake-up Call
One doesn’t need to go into the technicalities of environmental jurisprudence and scientific know how to understand that the tweaking of the law. Even basic understanding and logic should be enough to gauge how the new draft notification is nothing but an attempt to facilitate corporate, mining companies, builders and the MNC giants to flourish. Most regulatory bodies in our country have always been manageable. Hence what stood out in the process of EIA and what held its sanctity was the need of conducting a public hearing. And if that is eliminated than nothing remains.Coming to the million dollar question as to why is the public participation in environmental clearance process perceived as something unsavoury by the government and the project proponents? As I’ve answered earlier that we’ve already transitioned from a socialist economy to a capitalist economy. One major reason is that the state has completely abdicated its responsibility of providing employment and generating revenue. It completely relies on the industries and the corporate to perform this function and hence as long as the state would rely on the project proponents to generate employment and revenue, the corporate project proponents will continue to have an upper hand.
The environmental violations also speaks and reflects a lot on us i.e., the middle class and the upper middle class residing in urban areas because it is essentially the urban population which utilizes the maximum amount of resources while neglecting the environment and the wrath is in turn being faced by the rural people. The industries are mainly set up in and around rural areas. It is the rural local populace which gets affected because of coming into being of these industries. However the consumption, be it of anything, is mainly by the people of the urban areas. Yet in the whole process the disproportionate suffering is to those locally affected people and despite of that we don’t stand up when their collective rights are violated by the state by doing away with public hearings. We remain mute spectators and hence we are as much culpable as the executive.
Even amidst this deadly crisis and the pandemic, while we all were confined within the comforts of our home, the Union Government was busy diluting the provisions, granting clearances and accelerating its agenda and the development.
The saddest and gravest of the trajectories is the Central Vista Project of the Union Government. The government has camouflaged the project as a routine building and construction project under Section 8(a) of the EIA Notification, 2006. It would mean that it being a project classified under Category B2, it won’t have to undergo public consultation and there would be no Environment Impact Assessment. Camouflage, I say, because clearance is sought only for a small part of the project being the new parliament building while leaving apart the development/ redevelopment of Parliament Building, Central Secretariat and Central Vista. The project has been given a green nod even as the apex court is seized of the challenge qua the project. While at the same time the Hon’ble Supreme Court has recently refused to stay the project saying that during Covid-19 nobody is going to do anything and hence there is no urgency. Well, if one has been following the judiciary’s inclinations off late, then the observation and the abstinence by the apex court should not come as a surprise.
The redesigning of New Delhi’s Central Vista Project which is the most recent project which has bypassed public hearing as a part of Environmental Clearance process proposes to convert the existing parliament building into a democracy museum. Well, it might be a while before India has its own formal museum for democracy, but in substance and to the world, with the way towards it is progressing; it already has become a museum for democracy. How else does one justify the doing away of something as democratic as public hearings!
Covid-19 would soon be gone with the measures being taken and with the anticipated invention of the vaccine. But this hammer blow to the environment and the ecosystem by conveniently just eliminating the requirement of public hearing/s and the damage that it is going to exert, is a virus which is going to haunt us for longer than we can ever imagine.
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*The author is an advocate practicing in the High Court of Gujarat
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