India’s proposed overhaul of environment clearance rules could dilute existing regulations

  • Government of India’s environment ministry has proposed a new set of rules to govern the country’s environment clearance regime for industrial projects like dams, mines, airports, highways etc.
  • The draft Environment Impact Assessment (EIA) notification 2020, which was unveiled last week, proposes to ease processes for business, does away with the public hearings for many projects, ease rules for expansion of projects among other things.
  • Environmentalists and researchers who analysed the draft, point out that the draft EIA 2020 legitimises violations by those who start projects without environment clearance, weakens the public consultation process and gives a lot of discretionary powers to authorities.

The national government’s environment ministry has proposed a new set of environment clearance rules which seem to be heavily loaded in favour of the industry. 

The draft of the Environment Impact Assessment (EIA) notification 2020 proposes a mechanism to legitimise some actions currently listed as violations, like projects starting construction without a valid clearance, dilutes rules by expanding the list of projects exempted from public consultation, and does not prescribe a robust post environment clearance monitoring system.  

The draft EIA notification 2020, which is going to replace the EIA notification 2006, was put in the public domain on March 12 and the Ministry of Environment, Forest and Climate change (MoEFCC) has sought views and comments from all stakeholders on it within the next 60 days. The EIA notification 2006 regulates the environment clearance given by the national government for projects such as dams, mining, thermal power plants, infrastructure projects like highways, ports, airport and big construction projects.  

Environment lawyer Ritwick Dutta told Mongabay-India that the predominant thrust of the draft EIA notification 2020 is completely contrary to the principles of environment protection. 

“Instead of focusing on ensuring the protection of the environment, the draft EIA 2020 undermines the orders of the National Green Tribunal which had ruled against post-facto approvals. The purpose of this notification is to legitimise illegalities done by industries. It seems to be emphasizing that an industrial project that has violated environmental rules will have a right to seek approval for it as long as that project is permissible in the area. It is a mockery of the law,” Dutta explained.

Cases of violation mean instances where projects either started the construction work or installation or excavation or expanded the production or project area without prior environment clearance. In March 2017, the national government had come out with a notification that provided industrial projects with a chance to regularise projects that started construction or undertook expansion and modernisation without prior environment clearance. 

It was supposed to be a one-time chance but since then, the mechanism has turned into a fait accompli situation. Since 2017, the MoEFCC’s expert panel has held 31 meetings for hundreds of such projects that violated the EIA 2006 rules. 

The draft EIA 2020 goes a step further as it institutionalises this fait accompli situation.  For example, the draft EIA 2020 notes that “such violations being recurring in nature may come to the notice in future during the process of appraisal or monitoring or inspection by regulatory authorities.”

“Therefore, the ministry deems it necessary to lay down the procedure to bring such violation projects under the regulations in the interest of the environment at the earliest point of time rather than leaving them unregulated and unchecked, which will be more damaging to the environment,” the draft said. 

Border road projects could benefit from the new environment clearance rules. Photo by Bernard Gagnon/Wikimedia Commons.

The draft stressed that in cases wherein the project developer itself reports the violations the appraisal committee shall stipulate the implementation of the environment management plan (EMP), comprising remediation plan and natural and community resource augmentation plan corresponding to the 1.5 times the ecological damage assessed and economic benefit derived due to violation while it will be two times the ecological damage in cases where the violation is found by government or during the appraisal by the appraisal committee.

The public consultation process will be weakened

In the environment clearance process, public consultation is an important component under which the concerns of local affected persons and others, who have a stake in the environmental impact of the project, are ascertained with a view to appropriately take into account while designing the project. In the latest draft, the MoEFCC proposes to expand the list of projects that do not need to seek public consultation before they seek environment clearance. 

The draft said public consultation is exempted 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. 

It also held 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.”

Also, a mining project can now get environmental clearance for a period of up to 50 years, in the beginning, itself which in the 2006 version was up to 30 years only.

Dutta explained that this list shows how the draft EIA 2020 is an attempt to skirt around all the major decisions of the NGT over the past few years.

“This (provision) will ensure a huge help for the building and construction lobby which has been facing several court cases regarding clearance rules. With this, it is now ensured that the construction industry will no longer require an appraisal from the expert panels of the environment ministry. Similarly, the term “strategic project” is used in the proposed EIA notification where public consultation is exempted. Defence and security-related projects are understandable but the governments can designate any other projects as of strategic importance in name of energy security etc. to steer it clear of any public consultation and push the project. It can be an irrigation project or a mining project,” said Dutta. 

The controversy around blanket clearance to housing projects started in the first term of the Prime Minister Narendra Modi led government when in December 2016, the MoEFCC environment ministry allowed construction projects between 20,000-150,000 square metres to proceed without environment clearance. The ministry had suggested that local authorities would integrate environmental conditions into their bylaws and grant permissions. However, this was challenged before the NGT which had ruled against such a notification giving blanket clearance. Subsequently, the ministry has been trying to bring this change.

“The EIA notification is considered to be an important instrument for enabling environmental democracy through meaningful public participation. This participation is sought to be done through public consultation comprising of two components – a public hearing and inviting responses from those having a plausible stake in the environmental aspects of the project. The time period under the earlier notification for the conducting of the hearing was 45 days. Under the new draft notification, this time period has been reduced to that of forty days,” Sushmita Patel, a researcher working on environmental issues, told Mongabay-India. 

She said that the “public consultation process under the EIA notification has been riddled with infrastructural disabilities, inefficiencies and lack of access to information.”

“Hearings conducted across the country have been notorious for providing incomplete EIA reports, encouraging discussions on irrelevant details of the project, high levels of discrepancies in the information provided etc., thereby rendering the entire idea to involve citizens in environmental decision making, moot. The notification does not address these deficiencies pertinent in the process of public consultation, nor does it seek to ensure the authenticity or increased reach of information, that is critical for the concerned citizens to effectively participate in the process,” Patel said. 

She demanded that “to ensure that discourse and participation remain vital elements of environmental decision-making processes, the efficiency, relevancy and effectiveness of the steps and time period detailed under public consultation, need to be revisited.”

Ease of business spells doom for protection of the environment

Another contentious point is that linear projects like pipelines and highways in border areas are exempted from the public hearing. However, Dutta underlined that the term “border area” is defined as an “area falling within 100 kilometres aerial distance from the line of actual control with bordering countries of India” which will end up covering a huge area in regions like northeast or northern India.

“It leaves a lot to the discretion of the government,” said Dutta. 

Rules are proposed to be eased for housing and construction projects. Photo by Adityamadhav83/Wikimedia Commons.

Uttar Pradesh-based environmentalist Vikrant Tongad emphasised that the draft EIA 2020 is a huge setback.

“A few years ago, the government started focusing on ease of business but today with changes like these the only focus is business while the original mandate of protecting the environment is nowhere to be found. The proposed EIA notification is conveniently expanding the list of projects that can be exempted from close scrutiny,” Tongad told Mongabay-India. 

For instance, the government’s push for inland waterways has been a controversial subject.

“There is a case going on regarding inland waterways. Waterways require two kinds of dredging – capital and maintenance. Now, as per the existing rules, capital dredging (for inland waterways) requires environmental impact assessment. However, in the draft EIA 2020 the ministry has changed the definition of capital dredging to keep rivers out of the purview of the new environment clearance process,” said Dutta.

As per draft EIA 2020, capital dredging means “one time process involving removal of virgin material from the sea bed to create, or deepen a shipping channel in order to serve larger ships” and “this includes dredging activity inside and outside the ports or harbours and channels.”

Tongad observed that one issue that the draft EIA 2020 has ignored is monitoring and compliance of projects cleared. Under the draft EIA notification 2020, project owners are to submit environmental compliance reports (after getting clearance) every year which under the EIA notification 2006 they had to do it every six months.

“The backbone of environment clearance rules is monitoring the conditions on which projects are cleared and ensuring compliance. But here the ministry is outrightly trusting the industries whose track record doesn’t inspire much confidence. This proposed EIA notification has no focus on ensuring compliance and monitoring of projects while it heavily relies on self-certification by the industry,” said Vikrant Tongad.


Banner image: Development of inland waterways may get easier with new environment clearance norms. Photo by Biswarup Ganguly/Wikimedia Commons.

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