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Draft EIA Notification does not adhere to the polluter pays principle in letter or spirit

Objections to the Draft Environmental Impact Assessment Notification 2020 issued the Ministry of Environment, Forest and Climate Change, Government of India, by the People’s Union for Civil Liberties, Maharashtra:
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The People’s Union for Civil Liberties (PUCL), Maharashtra Unit, firmly objects to the Draft Environmental Impact Assessment Notification 2020 (Draft EIA 2020) issued by the Ministry of Environment, Forest and Climate Change (MoEFCC) on March 12, 2020. The Draft EIA 2020, set to replace the EIA Notification, 2006 currently in force, goes on to dilute the existing provisions of the law which itself were far from ideal, at a time when it needed strengthening in the wake of the environmental crises faced by the country. Conducting this exercise during this difficult time when the nation is dealing with an unprecedented pandemic, the public is under tremendous strain making it impossible for them to be able to effectively participate in the process and the courts and democratic institutions are reeling under pressure, is unfair and uncalled for.
At the outset, we are extremely bothered by the process followed by the MoEFCC in issuing the Draft EIA.
2020 at this time of crisis. Even as the nation was just acknowledging the Covid-19 pandemic, the Draft EIA 2020 was published on the website of the MOEFCC and objections were invited from the public on March 12, 2020. After much protest and legal intervention, following order passed by the Delhi High Court, this time limit for the submission of the objections and suggestions to the Draft EIA 2020 was extended until August 11, 20201, to ensure that the public had sufficient time to study the Draft EIA 2020 and to submit their objections and suggestions to the proposed law. Even the time extension until August 11, 2020 is highly inadequate in light of the continuing Covid-19 crisis. There is no plausible explanation why the government chose the imminent time of the pandemic to release the Draft EIA 2020, instead of postponing the process to a time when public scrutiny and debate are possible i.e. after the pandemic crisis is successfully averted and some semblance of normalcy returns.
The Draft EIA 2020, which is set to overhaul the environmental jurisprudence of our country and by that impact the lives, livelihoods and health of all the people of the country and the environment, has not been published in local languages, making the entire process of public consultation non-inclusive, non- representative and a superficial formality. Most people from different parts of the country, affected communities and local stakeholders will be precluded from participating in this important process. The High Courts of Karnataka, Chennai and Delhi have raised questions regarding this, however to date, the government has failed to release the Draft EIA 2020 in local languages or suspend the process of public consultations till the requirement is fulfilled. We object to the process being followed by the MoEFCC and demand that the Draft EIA 2020 be immediately withdrawn and the entire process be suspended until after the pandemic crisis.
At the further outset, we object to the bringing in of a substantive procedural law for EIA by way of a notification. Law providing for EIA is an important legislation that determines the potential environmental impact of projects and activities like setting up of industries, building construction, mining, infrastructure and power projects etc. It is pertinent that a law of such massive significance be brought in by way of an Act of the Parliament and not a notification that is susceptible to amendments and dilutions, as has been the case with the EIA notifications of 1994 and 2006 which have been chipped at and hollowed out extensively, at times bypassing public consultation process under the guise of public interest. What we need is to bring in a robust and effective law for EIA in place and in stead of the existing and proposed policy.
The Draft EIA 2020 has been drafted without consulting with the robust community of environmental activists and experts in the country, which reflects on bare reading of the proposed legislation. It is nothing but a compilation of dilutions to the existing legislation over the last several years and a further weakening of the EIA process to favour project proponents and disregard environment rights and rights of the people. We, after a detailed study of the Draft EIA 2020, are hereby writing to you to bring to your notice that the Draft EIA 2020 is completely contrary to law, unconstitutional, opposed to the well-established principles of environmental jurisprudence, unscientific, fails to meet the primary purpose of protection of the environment and fails to provide the necessary legal framework to support a robust and effective environmental regulatory and compliance mechanism. The Draft EIA 2020 thus fails in its fundamental purpose and must be immediately withdrawn.
As an organisation dedicated to protect and uphold the civil liberties and democratic rights of the people, PUCL Maharashtra, presents the following detailed specific objections to the Draft EIA 2020, which are not exhaustive.

Violation of principles of Environmental Protection

  • The polluter pays principle, precautionary principle and public trust doctrine have not been adhered to, neither in letter nor spirit, and the new changes proposed are contrary to these guiding principles. The changes proposed to the EIA which seek to bring into effect large and wide exemptions to the detailed EIA process followed under the current law (EIA Notification, 2006), the reclassification of a large number of projects from category A to Category B1 and B2 and exemptions for projects with significant environmental impacts on the natural landscape, terrain, biodiversity, wildlife etc. will drastically reduce the rigours of the EIA process. The proposed changes listed and discussed herein below are ultra vires the parent Act, i.e. the Environmental Protection Act, 1986 and need to be withdrawn.
  • The EIA is an internationally recognised mechanism for environmental regulation and compliance of environmental protection standards. The Draft EIA 2020 is an obvious dilution of the environmental protection norms in place for projects. The new law seeks to reduce the stages of the EIA for many projects and even proposes to completely exempt many projects from the mandate of the EIA process. These provisions are not in the interest of the environment and must be immediately withdrawn.
  • The proposed EIA 2020 is not in line with India’s international obligations under the Rio Declaration, the Paris Agreement or with any of the other international environmental conventions that serve as guiding legal instruments e.g. the Espo Convention or the Aarhus Convention. Responsible business conduct under the UN Guiding Principles on Business and Human Rights and the upcoming National Action Plan are all premised on the existence of a strong regulatory framework and are hence bound to fail in ensuring accountability if the laws governing EIA are diluted in this fashion. 

Grant of Post facto clearances

  • The Draft EIA 2020 under clause 22 provides for post-facto environmental clearance, thereby legitimising the violations of project proponents commencing projects and activities without obtaining valid environmental clearance. This effectively renders the process of obtaining environmental clearance into a paper formality and violates all the three aforesaid principles, being the precautionary principle, polluter pays and public trust doctrine. This provision was introduced as a one-time measure by way of a notification in March 2018 and was challenged before several fora. On April 1, 2020, the Hon’ble Supreme Court passed a judgment in the matter of Alembic Pharmaceuticals vs. Rohit Prajapati and others, where it has observed that “ex post facto environmental clearance is in derogation of the fundamental principles of environmental jurisprudence… environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.” The Preamble to Draft EIA 2020 states that the “violations are to be brought under the regulations in the interest of justice”. This premise is opposed to law and common sense as no violation can be said to be interest of justice. The provision encourages violators to bypass and avoid the EIA process and present a fait acompli once the project is operational for the authority to regularise its wrongs. It amounts to putting premium on illegality and encouraging violations of the law. The potential impact of the provision can be gauged from the recent incident of toxic styrene gas leakage on May 7, 2020 at the LG Polymers India unit in Vizag, which led to the death of 12 innocent people and left 100s injured. The plant had operated without valid clearance from 1997 to 2019 and had applied for grant of an ex-post facto clearance.

Detrimental changes to the EIA process 

  • Exceptions of projects: The Draft EIA 2020 under clause 26 has removed 40 types of projects from the requirement of prior environment clearance (EC) or prior environment permission (EP) altogether. Accordingly potentially high-impact projects such as solar thermal power plants, common effluent treatment plants, dredging for dams, extraction for linear projects such as roads, pipelines, manufacturing units under Ministry of Defence etc. have been exempted from requirement of prior EC or prior EP.
  • Introduction of Environmental Permission: The Draft EIA 2020 under clause 4 introduces the concept of environmental permission for certain category B2 projects. Projects required to obtain environmental permission under this sub-category of B2 projects in the Draft EIA 2020 will be entirely exempted from the 4 stage EIA process of screening, scoping, public consultation and appraisal and from going before the Expert Appraisal Committee (EAC). Projects such as commercial heliports, projects in respect of inland waterways, building construction projects up to 50,000 sq.m. built up area, certain medium enterprises involved in petroleum product processing, cement plants, mineral beneficiation etc. have been included in this sub-category. The remaining category B2 projects will be exempted from submitting EIA report and public consultation. Several slabs of projects which were earlier subject to scrutiny under the rigorous EIA process due to their polluting nature have been included under this category, thereby relaxing the requirement for a thorough EIA for several industries and projects. Ports, harbours, backwaters and capital dredging (inside and outside the ports or harbours and channels) in inland waterways, certain SEZs, irrigation, mining projects up to a certain threshold have been reclassified as Category B2 projects when in fact these projects do put significant pressure on the environment. 
  • Exemptions to all projects involving national defence or security or other strategic considerations: The Draft EIA 2020 provides under clause 5 (7) that no information regarding projects concerning “national defence or security or involving other strategic considerations, as determined by the Central Government” will be provided to the public, thereby effectively robbing the public of any right whatsoever to understand the impact of the project or effectively challenge the project. The Draft EIA 2020 exempts all such projects from the public consultation process under the provisio (e) to clause 14 (2). The parameters of what would constitute strategic importance have been left undefined and hence open to interpretation and exercise of arbitrary discretion. The clause is intentionally vague and open ended. This would result in a large variety of projects being exempted from any kind of public scrutiny under the garb of being defence or security projects or involving other strategic consideration, irrespective of their impact on the environment and the people. 
  • Exemptions for modernisation and expansion of projects and activities: The Draft EIA 2020 provides that for projects of modernisation and expansion only those involving more than 25% increase require EIA (under clause 16(1)), and only those involving more than 50% increase require public consultation (under clause 14(2)). This is arbitrary and completely disregards the potential impact of the slightest expansion or modernisation of a high impact industry. 
  • Exemption from conducting public hearing: The Draft EIA completely exempts certain largescale projects from the process of conducting a public hearing despite these projects having a huge impact on the local communities and the environment. The reclassification of several high impact projects and activities from category A and B1 to category B2 in the Schedule and the removal of the requirement of a public hearing for category B2 projects has effectively taken away the right to public participation in decision making for a majority of the projects. Under the Draft EIA 2020, all projects falling under category B2 in the Schedule and all other projects in the provisio to clause 14 (2) have been exempted from the requirement of conducting a public hearing. Many of the projects falling under the items / heads are projects that have a large social impact on marginalised communities, encroach upon important wildlife corridors and core protected areas such as tiger reserves and ecologically fragile areas. The removal of the requirement of a public hearing is deliberate to dilute the scrutiny afforded to the public under the current EIA Notification 2006. This proposed change to the law encourages red tape, non- transparency and corrupt practises, and leaves little need for accountability to the public. 
  • Time for filing objections during public consultation process: The Draft EIA 2020 under Appendix-I clause 3, reduces the time limit for the public to submit their responses to the proposed project from 30 days to 20 days. This reduction of time is significant as usually the documentation needed to effectively participate in the public hearings are difficult to access. These documents are also hard to understand for the local communities most likely to be affected by the project. The local communities would have to seek guidance on the repercussions of the project to better represent themselves and the period of 20 days is grossly insufficient. Even with respect to the studying the draft EIA and presenting comments or suggestions from the public, this period of 20 days would be grossly insufficient. The public must have a right to participate in the projects that affect their lives and their livelihoods and cannot be denied their right to be heard. Some of these projects involve large scale displacement of communities and others cause devasting changes to the local environmental and livelihood of the people especially the traditional livelihoods of fisherfolk, traditional farming, forest dwelling communities. Without hearing the local communities and stakeholders, the authorities cannot be permitted to grant the requisite clearances / permissions to commence the project.
  • Reporting of violations by public: The Draft EIA 2020 under clause 22 excludes reporting by the public of violations. It states that the government will take cognisance of reports only from the violator-promoter, government authority, Appraisal Committee or Regulatory Authority. Such projects may then be approved with conditions, including remediation of ecological damage, which, again, will be assessed and reported by the violator and not an independent agency. This provision is deeply problematic and goes against the right of citizens to participate to report environmental wrongs, access justice and redress its grievances and participate in environmental decision making. Affected communities, stakeholders, experts, NGOs, public spirited individuals must be able to report on violating projects or activities affecting the environment, or plans and programmes relating to the environment and these comments should to be taken into due account in decision-making by the authorities. 
  • Validity of clearances: The Draft EIA 2020 under clause 19 (1) has increased the validity of prior EC and prior EP considerably. For mining projects, the validity has been increased from 30 to 50 years, river valley projects it is increased from 10 to 15 years and for all other projects it is increased from 5 to 10 years from the original EIA Notification 2006. At a time when the environment is rapidly changing and the impacts of climate change are already visibly affecting communities, such increase in the period of validity of prior EC and prior EP in the construction or installation phase and perpetual validity in the operational phase, can have severe impact on the environment and the rights of local communities. Scientific reasoning would demand that the validity of clearances be reduced and the project proponent be subjected to the EIA process afresh on the lapse of the clearance considering the rapid changes in the environment and the availability of modern technology for construction which has drastically reduced construction time. However this retrograde move is a clear indicator how the law is being weakened and not strengthened in favour of the environment. 
  • Allowing certain types of activities without prior EC or prior EP: The Draft EIA 2020 under clause 4 (3) dilutes the definition of ‘construction work’ by allowing activities like levelling of ground, fencing and geotechnical investigation before obtaining prior environmental clearance or permission. Some of these activities like levelling in mountains slopes can cause soil erosion and trigger landslides and the geotechnical investigation for roads and hydropower projects involves heavy construction activity like the excavation of tunnels into the mountains which impact the environment. 
  • Standard Terms of Reference: The Draft EIA 2020 under clause 3 (56) (b) provides for Standard Terms of Reference (TOR), which do not factor in the specific aspects of the project or activity. It is inevitable that the EIA will essentially be based on such standard TORs from the Committee without contextualizing the same in terms of location or characteristics of the particular project. 
  • Baseline Data for EIA Report: The Draft EIA 2020 under clause 13 (2) restricts the collection of baseline data for EIA report to one season only. This is illogical and unscientific. Data must be collected over a minimum of 12 months to understand the changes that occur naturally in the environment / project site. Without this understanding, it would not be possible to scientifically put in place measures to protect the natural ecosystem. Study of all the seasons as opposed to one permits the decision makers to take a well informed and reasoned decision. Moreover baseline data should not be permitted to be collected “at any point in time” but must be collected scientifically during different seasons and only when the application for TOR has been made so as to provide contemporaneous data for analysis. 
  • Definition of study area: The restriction to the ‘study area’ in clause 3 (54) of the Draft EIA 2020 for each project being 10 kms for A category project or 5 kms for B category projects is flawed as the effects of a particular project can sometimes be felt and seen many kilometres away and hence should not be restricted to a particular distance or margin but discretion should decided based on the site conditions and its proximity to protected areas. 
  • Diluting definition of General Conditions: The Draft EIA 2020 under Clause 3 (3) dilutes the General Conditions (GC) by reducing distance from boundaries of protected areas, inter-state borders, eco- sensitive areas and critically polluted areas from 10 kms to 5 kms for most types of projects and activities. Only 4 types of B1 category projects are retained required to be appraised at Central level if located within the boundary of 10 kms, namely River Valley projects, Thermal Power projects, Airports and Ship breaking yards (items 3, 5, 32, 33 of the Schedule), however the latter two have no classification in Category B1. Further, the non-applicability of the GCs to certain projects under Category B1 and all projects under Category B2 and specifically to Items 9, 10(f), 11(b), 25, 38, 40, 41, 42, and 43 and riverbed mining projects in the Schedule to the Draft EIA 2020 are unjustified. The GCs must be made applicable to a wider ambit of projects. 
  • Draft EIA Report and other documents in local language: The Draft EIA 2020 under clause 14 (3) provides that 10 copies of the draft EIA for the project to be made available in English and 10 copies of the summary of the EIA for the project in English and the local language. It is however essential for the local stakeholders to make an informed decision that all the documents, including the draft EIA report must be made available to the local communities in local language as they are directly impacted by the project and have a right to be informed of the contents of the draft EIA report. Other important project documents must also be made available such as the alternative site study analysis, the Social Impact assessments, the wildlife clearances, forest clearances, CRZ mapping, google maps of the project site, the environmental management plan, the details of whether the project site is in a hazard prone area etc must also be intimated to the public. 
  • Social Impact Assessment missing: The Draft EIA 2020 does not provide for a mandatory Social Impact Assessment of the project and this can be highly unjust especially considering that in a huge number of cases, the clearances and permissions will be granted without a public hearing being conducted. 
  • Penalties for violations: Strict penalties must be specified for the non-compliance of the EC and EP envisaged. However the Draft EIA 2020 does not provide for strict penalties in the event of the violation of the clearances issued under it. It instead only requires the project proponent to deposit a bank guarantee under clause 23 (10). This would invariably lead to a situation where the project proponent who does not have a dearth of money will literally pay to damage the environment and make profit from that damage. This is against the polluter pays principle and a gross abuse of the process of law. 
  • Compliance and monitoring: The Draft EIA 2020 under clause 20 (4) requires the project proponent to submit compliance report to show that the project proponent is conducting its activities as per the environmental clearance or permission granted only once a year. This was to be done once in 6 months under EIA Notification 2006. This investor-friendly dilution will only further violations of conditions upon which the clearance had been granted to the project and will considerably weaken the compliance and monitoring mechanism. 

Takes away independence of the committees

  • The involvement of the Central Government in the appointment of the members of the State Environmental Impact Assessment Authority (SEIAA) and Union Territory Impact Assessment Authority (UTEIAA) fails to provide any independence to the members of these committees and thereby effectively reduces their ability to act in a free and fair manner without fear, prejudice or favour.
  • The Draft EIA 2020 provides the Ministry with the power to change the constitution of the committees such as State Environment Appraisal Committee (SEAC) and the Expert Appraisal Committee (EAC), thereby taking away independence of the members of these committees and effectively reducing their ability to act in a free and fair manner without fear, prejudice or favour. 

Dilutes protections under other environmental laws

  • The Draft EIA 2020 fails to effectively support other environmental legislations, rules and regulations, like the Coastal Regulation Zone Notifications, Wildlife Protection Act, 1972, Forest Rights Act, 2006, Panchayats (Extension to Scheduled Areas) Act, 1996 etc. It does not take into account other approval and permissions that projects are required to apply for and fails to complement these protective laws by planning for a comprehensive approach to environmental protection. It does not factor in the requirements for obtaining wildlife clearances, forest clearances, CRZ clearances, consents to establish issued under the Water and Air Act. It infact negatively impacts and renders vulnerable rights guaranteed under the other legislations.
  • This overhaul to the law applicable to EIA would have provided an opportunity to strengthen the environmental regulatory mechanism across all environmental legislations by providing a comprehensive EIA process, but that has been entirely lost in the Draft EIA 2020. 

Not forward looking

  • The Draft EIA 2020 fails to account for the impending Climatic Change and Climatic Emergency that is likely to be faced globally in the coming years and decades, the law must be forward looking and provide a framework for anticipated challenges of the future. Instead the law proposed is retrograde and regressive.
PUCL Maharashtra rejects the Draft EIA 2020 in its current form on the above amongst other grounds, which expose the fundamental problems with the proposed legislation. It is clear that the Draft EIA 2020 has failed to capture the learnings from the shortcomings with the EIA process felt by the environmental rights community and civil society. The Draft EIA 2020 is guilty of centralising control while over- delegating administrative function, thereby curbing independence of process and encouraging corrupt practices. The proposed legislation is undemocratic, an attack on local governance through grass root participation and defies the principle of federalism that is part of the basic structure of the Constitution. By removing the requirement for public consultation for a large number of projects and introducing anti- people changes to the public consultation process, the Draft EIA 2020 has revealed its discomfort with public participation in decision making, which is a must in environmental governance and considered to be a key to achieving sustainable development. The Draft EIA 2020 is violative of the international principles of environmental law and violates important treaties and conventions to which India is signatory including the Rio Declaration, United Nations Framework on Climate Change, Paris Agreement etc. and is hence, also telling of India’s commitment (or lack of it) to the achievement of SDGs. If this law is introduced it will inevitably take our country many leaps backwards in terms of the achievements in environmental jurisprudence of our country carefully put in place by the legislature and courts. Moreover, it will render fruitless decades of environmental advocacy and activism by local communities, vulnerable groups and activists. There is an urgent need to strengthen the environmental governance in our country by introducing a strong and robust law that meets the need for intergenerational equity, environmental protection and justice, especially in light of our dismal environmental and health indicators which are a direct fallout of the dilution of the environmental policies. However, this Draft EIA 2020 in the name of such change is a complete fallacy and shall push us back tremendously, and hence, entirely unacceptable.
PUCL Maharashtra accordingly calls upon the MoEFCC to unconditionally withdraw the Draft EIA 2020 and suspend the process of introducing new law on the subject until the Covid-19 pandemic is successfully averted and people of the country are in a position to effectively participate.
PUCL Maharashtra suggests that instead a fair and participatory process be initiated to put in place a robust and strong environmental regime and in particular a law to provide for environment impact assessment, in consultation with the local communities, experts, defenders and all concerned stakeholders; taking into account their learnings, experiences and suggestions.
We request that our objections and suggestions be considered and the Draft EIA 2020 be discarded at the threshold and without further delay.
-- For PUCL Maharashtra, Mihir Desai, Convenor, Ad-Hoc Committee, People’s Union for Civil Liberties (PUCL), Maharashtra

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