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The Raising Contentions over Environment Impact Assessment (EIA) draft, 2020: Explained

The Environment Impact Assessment 2020 draft notification was released in the public domain on 12 March, with the Ministry of Environment, Forest and Climate Change (MoEFCC) inviting public suggestions. On 30 June, the Delhi High Court extended the time granted for public opinion on the contentious 2020 EIA draft until 11 August. The new EIA draft has been widely criticized by experts and activists, who say it has adopted a regressive approach in a departure from the existing 2006 version, and that it fosters non-transparency and encourages environmental violations.

The history

India formulated its first Environment Impact Assessment norms in 1994, under the Environment (Protection) Act, 1986, setting a legal framework for regulating activities that access, utilize, and affect (pollute) natural resources. The then government had enacted the Environmental Protection Act in 1986.

Since the enactment of the law, all development projects need to go through the EIA process to procure environmental clearance. The projects are assessed based on their potential environmental impact and based on these assessments, they are granted or denied clearance. The 1994 EIA was replaced by the 2006 modified draft. On 12 March 2020, the MoEFCC further redrafted it.

The Significant changes in the new draft and contentions:

The two most significant changes in the new EIA draft are provisions for a post-facto clearance of projects, and abandoning the spirit of public trust. Projects operating in violation of the Environment Protection Act can now apply for clearance. This draft is a reiteration of a March 2017 notification for industrial units and other projects operating without clearance.

In case of violations, all a violator needs to do are two plans for remediation and resource augmentation corresponding to 1.5-2 times the “ecological damage assessed and economic benefit derived due to violation”. This essentially means that in cases of a violation reported by a government authority or by the regulatory authority processing an application, the violator under the Environmental Management Plan (EMP) process shall be only liable for remediation and resource augmentation equivalent to 1.5-2 times of the ecological damaged and the economic benefit derived from the violation.

The Supreme Court held on 1 April that “ex post facto environmental clearances” are contrary to law. Therefore the draft EIA 2020 supersedes the spirit of Section 3 of the EPA.

The new draft exempts a list of projects under the ambit of the EIA. Under Clause 26 of the EIA draft, 40 different types of industries will be exempted from the need for prior environmental clearance. This includes projects flagged as ‘strategic’ by the government. The draft also says that no information on “such projects shall be placed in the public domain”. Projects such as roads and pipelines in border areas are also exempted from the list. That is “area falling within 100 kilometers aerial distance from the Line of Actual Control with bordering countries of India”, which could cover much of the Northeast. Further construction projects of up to 1,50,000 square meters shall also be exempt from EIA norms. All inland waterways and national highways projects are as well exempted from prior clearance.

One of the few legitimate measures of the draft includes: That it protects and preserves the federal structure of the Constitution. It has no provisions for the Union government to act arbitrarily. The notification provides for setting up of State Environment Impact Assessment Authority by the States. Union Territories, too, get the power to set up such an authority. The new draft also states that violations can be reported only by the government and the project proponent themselves and not by citizens. The draft says that violation cases will be dealt, based on the project developers suo moto, disclosing that they have broken the law. This means that the project developers gain discretion to disclose when they have broken the law.

Activists argue that the new draft by the government makes it easier for industries to elude environmental accountability. Conservationists say that the new draft significantly diminishes the scope of the EIA as well as its process, by reclassifying industries that don’t require environmental clearance, limiting public engagement, and normalizing environmental violations. All set and done what is clear is that the draft EIA 2020 notification is aimed at speeding up approvals but the question lies on how exactly would it facilitate better compliance of environmental laws by project developers.

– Reporter: Arjun Raj. S

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