Background:

India is one of the 55 signatories to the Declaration of the United Nations Conference on the Human Environment, Stockholm of 1972. Soon after this, several laws to keep a check water (1974) and air (1981) pollution were enacted. But the legislation of the umbrella Environment Protection Act only took place after the Bhopal gas tragedy of 1986.

Under this Act, the government notified the first Environment Impact Assessment (EIA) norms in 1994, formulating a legal framework for the regulation of activities that include accessing, utilizing and polluting any natural resources. Hence, every developmental project now had to go through proper inspection under the EIA procedures for obtaining environmental clearance.

This 1994 draft was replaced by a new one in 2006, which has again, earlier this year, been proposed to be replaced with the 2020 norms, which has been drafted, according to the government, so as to make the EIA process "more transparent and expedient".

What changes does the new draft bring?

Environment activists across the nation claim that even though the draft has been established to safeguard the environment, the EIA process is such that it achieves the opposite, by bringing with it a facade of legal paperwork for various concessions for the enjoyment of industries.

According to them, the reports that introspect projects and their environmental damaging impact are more than often shoddy and hasty. Moreover, the consultant agencies that are paid to do these reports are never held accountable. This lack of administration renders the whole point of these norms meaningless. Added to this are the frequent amendments to these norms, which keep exempting one or the other industry from official scrutiny.

On the other hand, industry and project developers are of the view that the establishment of EIA norms has killed the spirit of liberalisation. It has only led to more red tape-ism and rent-seeking.

Why is the new EIA draft is giving rise to environmental concern?

The 2020 draft of EIA has not put a hold on the extreme political and bureaucratic influence on the clearance process. Instead, it has raised the discretionary powers of the government and limited any public involvement in the protection of the environment.

There's no doubt that developments in matters concerning national defence and security come under the "strategic" tag, however, according to the new norms, the government will get to decide upon the "strategic" tags on other projects as well. Not only the power of decision-making, the new draft even says that details of any such projects will not be made available to the public. This gives the government absolute discretion to tag any project as "strategic" without having to explain any reason behind it.

Further, the new draft exempts a lot of development projects from the domain of public consultation. This even includes linear projects like development of roads and laying of pipelines in border areas. "Border areas" has been defined in the draft as areas that fall under 100km of aerial distance from the Line of Actual Control from the countries bordering India. The matter of concern in this aspect is the whole North-eastern part of India which is the repository of India's richest biodiversity, as much of it falls under the "border areas". These new norms can easily be taken advantage of, in the guise of "safeguarding the environment" as it claims.

It also exempts the development of roads that cut through forests, inland waterways projects, dredging of major rivers from prior environmental clearance, and expansion/widening of national highways from prior clearance. It further exempts most building construction projects of built-up area up to 1,50,000 sq m., reiterating the Ministry's notification in 2016, which was set aside by the National Green Tribunal in December 2017.

Conclusion:

The two most important changes that have been made with the new draft are the provisions for post-facto project clearance- meaning, projects operating in violation of the Environment Act will now be able to apply for clearance- and abandoning of the public involvement and trust doctrine.

In an order on April 1, the Hon'ble Supreme Court held “ex post facto environmental clearances” contrary to the law. It said, “Environmental 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 new draft also gives the government authority to take cognisance of such violations, that is, they have to be reported either by a government authority or the developers themselves. There is no scope for any complaint from the public about violations. Instead, the violators are counted upon to disclose, suo motu, that they broke the law.

As of now, the deadline for public feedback to the 2020 draft is 30th June. Its various provisions that seek to facilitate the government’s doctrine of “ease of doing business” keep open the question if the notification is aligned to the purpose of the Environment Act. Its legal validity is still yet to be heard.