<p>Nine years ago, the Supreme Court in the landmark Lafarge judgment charted out a course to improve India’s environmental governance. But successive governments at the Centre – a BJP-led coalition has in power for six of the nine years – did precious little to implement the order.</p>.<p>What was called for was installing a “national regulator for appraising projects, enforcing environmental conditions for approvals and to impose penalties on polluters” besides making the entire process of environmental governance more participatory. The Union Environment Ministry in its draft Environment Impact Assessment (EIA) notification, 2020 seems to be doing the opposite of what the SC charged it with.</p>.<p>Interestingly though it does not mention the famous SC ruling, the draft EIA quoted verdicts given by the Jharkhand High Court and the National Green Tribunal. This is not surprising because the controversial notification seems to have gone in the reverse direction by undermining the spirit of the Environment Protection Act, 1986, reducing the scope of public participation and bestowing the central government with a lot of discretionary power to bulldoze through the clearances for projects.</p>.<p>“The draft notification is in keeping with the pro-business agenda of the central government in the name of development. People’s interests or concerns of protection of the environment are not the concern of draft EIA 2020. It gives license for wrong-doing and violations. It is part of a wider policy approach of the present government to appease corporate interests and meet their demands in the name of encouraging investment and facilitating ease of doing business,” the CPI (M) said in a statement, demanding withdrawal of the draft. Congress leaders like Sonia and Rahul Gandhi, Jairam Ramesh and Shashi Tharoor also made the same demand.</p>.<p><strong>From better to worse?</strong></p>.<p>Once finalised, the new EIA will replace the EIA, 2006, which itself was contentious. Environmentalists, lawyers and a section of politicians argue that instead of making the old rule better by taking cues from the Apex court, the BJP-led government has made it worse.</p>.<p>Take the sections that deal with violations, for example. As per the new EIA, the project proponents would be given a chance to regularise the project if a government appraisal panel finds that the project can be run sustainably with adequate environmental safeguards. For the violation, there would be a financial penalty. The amount would vary depending on the nature of the project. The closure of a project is recommended only if the panel gives a negative recommendation.</p>.<p>Three years back, the ministry released a notification allowing a six-month amnesty to any project that was in violation of the EIA notification to seek an environmental clearance. After facing criticism, it informed the judiciary that it was a one-time measure. The new draft now seeks to institutionalise such an amnesty scheme, going against the National Green Tribunal that time and again ruled against such approval routes.</p>.<p>In an April 1, 2020 judgement, the Supreme Court also stated, “The concept of ex post facto clearance is fundamentally at odds with the EIA notification dated January 27, 1994. The (original) EIA notification of 1994 contained a stipulation that any expansion or modernisation of an activity or setting up of a new project shall not be undertaken in any part of India unless it has been accorded environmental clearance”. The language of the notification is as clear as it can be to indicate that the requirement is of a prior EC. A mandatory provision requires complete compliance.”</p>.<p>But the 2020 draft institutionalised a process to bring projects violators under regulation. It allows projects operating for several years without an EC to approach the regulatory authority for clearance, when such violation is reported suo moto or by any government authority.</p>.<p>“Environmental disasters in the past few months (Baghjan blowout, LG Polymers gas leak and devastating landslides) across India indicate they are the direct outcome of the weak or non-implementation of existing environmental regulations, which now this draft further proposes to dilute,” said Leo Saldanha, a Bengaluru-based green activist associated with Environment Support Group.</p>.<p>“Moreover, a distinction has been made between violation and non-compliance, which is a recipe for violation in perpetuity,” said Sanjay Upadhyay, an environmental lawyer.</p>.<p>The Narendra Modi government decided to overhaul the EIA arguing that the 2006 rules were amended 51 times and 348 office memorandums were issued to clarify (read dilute) them. In fact, it confused the judges so much that at one point of time the Union Ministry of Environment and Forest was asked to prepare a compendium on the notification and associated clarifications. Published in 2014, the compendium runs into 622 pages.</p>.<p>“For 26 years, we have had this subordinate legislation (first EIA came in 1994) under the Environment Protection Act, 1986. It is not a robust instrument and has a flawed way to categorise the industry based on the area or the processes involved, but not taking into account the quality of the environment or the adversarial impact of a project,” noted Upadhyay.</p>.<p>Another point of criticism is reducing the scope of the public consultation process. Not only the public hearing has to be completed within 20 days (it was 30 days in EIA 2006), but a large number of projects have been kept out of public hearing if (1) they are located within a notified industrial area or (2) considered strategic in nature by the central government. In the previous set of rules, only defence projects were considered strategic and kept out of public hearing. Now there would be no information in the public domain not only for defence and strategic projects, but also for projects having “other strategic considerations as determined by the central government.”</p>.<p>Moreover, the Centre has been conferred with legal power to create state and district level impact assessment committees if the state government failed to establish them within the stipulated time – a move that attracted criticism from the state governments for going against the idea of federalism.</p>.<p>“Instead of decentralisation, such centralisation in environmental clearance would lead to hurdles or clearance without taking into account local issues. Reducing the state government’s control will have direct consequences on environment protection efforts,” Maharashtra environment minister Aditya Thackeray worte in a letter to Union Environment Minister Prakash Javadekar.</p>.<p>Jadavekar on his part maintained that it was only a draft and all inputs would be taken into account before finalising it. Union Environment Secretary R P Gupta said the feedback received by the ministry dealt with 50-60 issues that would be examined and appropriate decisions would be taken after due considerations.</p>.<p>Coming from a government that completely bypassed the green regulations by splitting 889 km of road construction in the ecologically sensitive areas of the Himalayas (connecting Kedarnath, Badrinath, Gangotri and Yamunotri) into 53 projects, each less than 100 km, the assurance is not very comforting.</p>
<p>Nine years ago, the Supreme Court in the landmark Lafarge judgment charted out a course to improve India’s environmental governance. But successive governments at the Centre – a BJP-led coalition has in power for six of the nine years – did precious little to implement the order.</p>.<p>What was called for was installing a “national regulator for appraising projects, enforcing environmental conditions for approvals and to impose penalties on polluters” besides making the entire process of environmental governance more participatory. The Union Environment Ministry in its draft Environment Impact Assessment (EIA) notification, 2020 seems to be doing the opposite of what the SC charged it with.</p>.<p>Interestingly though it does not mention the famous SC ruling, the draft EIA quoted verdicts given by the Jharkhand High Court and the National Green Tribunal. This is not surprising because the controversial notification seems to have gone in the reverse direction by undermining the spirit of the Environment Protection Act, 1986, reducing the scope of public participation and bestowing the central government with a lot of discretionary power to bulldoze through the clearances for projects.</p>.<p>“The draft notification is in keeping with the pro-business agenda of the central government in the name of development. People’s interests or concerns of protection of the environment are not the concern of draft EIA 2020. It gives license for wrong-doing and violations. It is part of a wider policy approach of the present government to appease corporate interests and meet their demands in the name of encouraging investment and facilitating ease of doing business,” the CPI (M) said in a statement, demanding withdrawal of the draft. Congress leaders like Sonia and Rahul Gandhi, Jairam Ramesh and Shashi Tharoor also made the same demand.</p>.<p><strong>From better to worse?</strong></p>.<p>Once finalised, the new EIA will replace the EIA, 2006, which itself was contentious. Environmentalists, lawyers and a section of politicians argue that instead of making the old rule better by taking cues from the Apex court, the BJP-led government has made it worse.</p>.<p>Take the sections that deal with violations, for example. As per the new EIA, the project proponents would be given a chance to regularise the project if a government appraisal panel finds that the project can be run sustainably with adequate environmental safeguards. For the violation, there would be a financial penalty. The amount would vary depending on the nature of the project. The closure of a project is recommended only if the panel gives a negative recommendation.</p>.<p>Three years back, the ministry released a notification allowing a six-month amnesty to any project that was in violation of the EIA notification to seek an environmental clearance. After facing criticism, it informed the judiciary that it was a one-time measure. The new draft now seeks to institutionalise such an amnesty scheme, going against the National Green Tribunal that time and again ruled against such approval routes.</p>.<p>In an April 1, 2020 judgement, the Supreme Court also stated, “The concept of ex post facto clearance is fundamentally at odds with the EIA notification dated January 27, 1994. The (original) EIA notification of 1994 contained a stipulation that any expansion or modernisation of an activity or setting up of a new project shall not be undertaken in any part of India unless it has been accorded environmental clearance”. The language of the notification is as clear as it can be to indicate that the requirement is of a prior EC. A mandatory provision requires complete compliance.”</p>.<p>But the 2020 draft institutionalised a process to bring projects violators under regulation. It allows projects operating for several years without an EC to approach the regulatory authority for clearance, when such violation is reported suo moto or by any government authority.</p>.<p>“Environmental disasters in the past few months (Baghjan blowout, LG Polymers gas leak and devastating landslides) across India indicate they are the direct outcome of the weak or non-implementation of existing environmental regulations, which now this draft further proposes to dilute,” said Leo Saldanha, a Bengaluru-based green activist associated with Environment Support Group.</p>.<p>“Moreover, a distinction has been made between violation and non-compliance, which is a recipe for violation in perpetuity,” said Sanjay Upadhyay, an environmental lawyer.</p>.<p>The Narendra Modi government decided to overhaul the EIA arguing that the 2006 rules were amended 51 times and 348 office memorandums were issued to clarify (read dilute) them. In fact, it confused the judges so much that at one point of time the Union Ministry of Environment and Forest was asked to prepare a compendium on the notification and associated clarifications. Published in 2014, the compendium runs into 622 pages.</p>.<p>“For 26 years, we have had this subordinate legislation (first EIA came in 1994) under the Environment Protection Act, 1986. It is not a robust instrument and has a flawed way to categorise the industry based on the area or the processes involved, but not taking into account the quality of the environment or the adversarial impact of a project,” noted Upadhyay.</p>.<p>Another point of criticism is reducing the scope of the public consultation process. Not only the public hearing has to be completed within 20 days (it was 30 days in EIA 2006), but a large number of projects have been kept out of public hearing if (1) they are located within a notified industrial area or (2) considered strategic in nature by the central government. In the previous set of rules, only defence projects were considered strategic and kept out of public hearing. Now there would be no information in the public domain not only for defence and strategic projects, but also for projects having “other strategic considerations as determined by the central government.”</p>.<p>Moreover, the Centre has been conferred with legal power to create state and district level impact assessment committees if the state government failed to establish them within the stipulated time – a move that attracted criticism from the state governments for going against the idea of federalism.</p>.<p>“Instead of decentralisation, such centralisation in environmental clearance would lead to hurdles or clearance without taking into account local issues. Reducing the state government’s control will have direct consequences on environment protection efforts,” Maharashtra environment minister Aditya Thackeray worte in a letter to Union Environment Minister Prakash Javadekar.</p>.<p>Jadavekar on his part maintained that it was only a draft and all inputs would be taken into account before finalising it. Union Environment Secretary R P Gupta said the feedback received by the ministry dealt with 50-60 issues that would be examined and appropriate decisions would be taken after due considerations.</p>.<p>Coming from a government that completely bypassed the green regulations by splitting 889 km of road construction in the ecologically sensitive areas of the Himalayas (connecting Kedarnath, Badrinath, Gangotri and Yamunotri) into 53 projects, each less than 100 km, the assurance is not very comforting.</p>
