India needs to strengthen, not dilute, environmental assessments

Setting up development projects is an essential activity for an economy. Development projects including roads, ports, airports, dams, manufacturing units, power generation, irrigation, mining activities, among others, are crucial for growth and development. While these projects add to the national income and jobs, they also have a potentially harmful impact on the environment, including air, water, forests, soil, and ecology, which, in turn, can adversely affect local communities. Therefore,  it is essential to conduct a comprehensive Environment Impact Assessment (EIA) of the benefits and costs of a project at the stage of its conception to safeguard the environment as well as the livelihood and health of local communities.

On April 11, 2020, the Ministry of Environment, Forest and Climate Change (MoEF&CC) published and sought comments on a draft Environmental Impact Assessment Notification, 2020, which was widely criticised as diluting already weak environmental protections. The notification proposes exemptions to a certain category of projects, post facto clearances, reducing the public consultation process, among other things. In the light of this move, we take a closer look at the global good practices around environment assessment and the way forward for India.

Global Context

The United States introduced the Environment Impact Assessment protocol through its the National Environmental Protection Act (NEPA) in 1969 and became the first country to have done so. The UN Conference on the Human Environment, held in Sweden in June 1972, focused on international environmental issues. Consequently, the UN Environment Programme (UNEP) was set up in December 1972, to coordinate global efforts towards sustainability and to safeguard the natural environment.

A substantive body of literature has emerged on good practices for assessing the environmental impact of a forthcoming development project. Joseph et al. (2015) provide an overview of good practices in environmental assessment.[1] There has been an impressive advance in the knowledge and practice of environmental impact assessment methodologies. However, there are still some deficiencies that need attention.  These deficiencies include the lack of information on appropriate structure of the environment assessment appeal process, contextual factors regarding the application of the proposed practices in specific settings, and verification of links between processes and desired outcomes. The paper provides a summary of good environment impact assessment practices and evaluates them through a survey of experts and practitioners working for the development of oil sands in Canada.

Arnold and Hanna (2020) of the Canadian International Resources and Development Institute (CIRDI), University of British Columbia, provide a detailed account of the best practices in environmental assessment using case studies and application to mining.[2] The paper highlights the need to provide comprehensive information for all development impacts, including legitimate engagement with stakeholders and proactive environmental management. The participatory process should create a complete understanding of the economic, social, health and biophysical effects of the development project. The ways of mitigating any negative impacts need to be identified and implemented.  Positive engagement with communities builds trust between public, regulators and the developers. The future of research on environmental assessment requires its integration with cumulative effects and strategic evaluations.

The Intergovernmental Forum on Mining, Minerals and Sustainable Development (IGF), International Institute for Sustainable Development (IISD) has published a document on Guidance for Governments on improving legal frameworks for Environmental and Social Impact Assessment (ESIA) (2020).[3] The environmental and social impacts of mining projects are not adequately evaluated before the mining activity commences. Such oversights can have negative repercussions on the mining companies, communities, and the government, resulting in disputes. ESIA should aim to provide a clear roadmap for a beneficent mining activity for the mining companies as well as local communities.

The UN Environment Programme report (2018) provides a global review of the legislation on assessing environmental impacts.[4] It considers the Environment Impact Assessment (EIA) and the Strategic Environment Assessment (SEA) to be highly relevant for achieving the Sustainable Development Agenda for 2030. The report outlines an overview of the current status of the EIA and SEA legislation across a select group of countries. It reviews the significant steps, viz. 1) Screening; 2) Scoping and Impact Analysis; 3) Review of the EIA/SEA report; 4) Decision-making; 5) Follow-up and Adaptive Management and 6) Public Participation. The critical findings and trends convey some important messages. While some countries have been strengthening the EIA process, there has been weakening observed in some other countries. The acceptance of the legal requirements of SEA has been slow. Many of the national legislations have taken legal approaches to the EIA process, without taking into consideration the issues of strategic planning. While the public participation requirements are included in the EIA process, the meetings are held at the scoping and review stage. Very few countries include provisions for indigenous communities.

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (RFCTLARR) Act was enacted in India in 2013. The Social Impact Assessment (SIA) was made mandatory. SIA is not conducted as a part of EIA, but only at the time of land acquisition for development projects.

Draft Environment Impact Assessment Notification 2020 – Key Criticisms

India had participated in the Stockholm Conference. Discussions on environmental conservation in India commenced since 1972. The Environment (Protection) Act of India was introduced in May 1986 to provide protection and improvement of the environment. This Act later led to the announcement of the first Environment Impact Assessment notification in January 1994, mandating compulsory Environmental Clearance for setting up new projects and expanding existing ones. This notification was followed by multiple amendments and a revised EIA legislation in September 2006.  The period after that witnessed numerous modifications.

The Ministry of Environment, Forest and Climate Change (MoEF&CC) published a draft Environmental Impact Assessment Notification, 2020 (EIA Notification, 2020) on April 11, 2020, in the Gazette of India, which would replace EIA Notification, 2006, and its subsequent amendments. As per the norms, a period of 60 days was given for public consultation on the draft EIA Notification. Subsequently, this period was extended to June 30 due to the COVID-19 pandemic and lockdown. Following a petition in the Delhi High Court, the public consultation deadline for the draft notification was extended to August 11.[5]

The draft EIA Notification, 2020, has been scrutinised in the Indian media, with claims that the new provisions dilute the already weak environmental regulations. Some former bureaucrats spoke out against the notification, and more than 60 bureaucrats co-signed a letter sent to the MoEF&CC and PMO urging for the draft notification to be reconsidered.[6] The signatories comprised of retired bureaucrats, from both central and state governments, including a Former Secretary, Ministry of Environment & Forests. Various environmental organisations, NGOs and other stakeholders have also spoken out against the notification.

The criticisms of the Draft EIA Notification, 2020 can be summed up into four broad points:

1. Exempting specific projects from preparing an EIA
2. Formalising ‘post-facto’ clearances
3. Reducing the efficiency of the public hearing process
4. Reducing the requirements for compliance monitoring

1. Exempting specific projects or activities from preparing an EIA

Projects classified as ‘B2’ will not be required to prepare an EIA, and will only need to develop an Environment Management Plan (EMP). (Sections 10 (2) and (3)) [7]

Projects undergoing a modernisation of up to 25% increase in production capacity will not be required to revise the EIA report. (Section 16(1))

Forty cases are listed in the draft notification of projects that do not require a prior-Environmental Clearance (prior-EC) or prior-Environmental Permission (prior-EP). (Section 26) Examples of these cases include the extraction of ordinary clay or sand by manual mining, to prepare pots, lamps, toys, earthen tiles, etc.; extraction or sourcing or borrowing of ordinary earth for roads, pipelines, etc.; Solar Photovoltaic (PV) Power projects, Solar Thermal Power Plants and development of Solar Parks, etc.; coal and non-coal mineral prospecting; and maintenance dredging.

2. Formalising ‘post-facto’ clearances

The draft notification provides for cases in which the projects have started operation without a prior-EC. If the Appraisal Committee is satisfied that the project can be run sustainably, then there is a path for the project to obtain an EC through the payment of remediation and fines legally. (Section 22)

The Appraisal Committee may also recommend that the project be closed, along with other actions such as remediation. The relevant authority (State / UT government or pollution control board) may then initiate action under the Environment (Protection) Act, 1986. (Appendix XV)

3. Reducing the efficiency of the public consultation process

Public consultation is not required for Category A and B1 project expansions or modernisation if the capacity increase is less than 50%. Additionally, there is an exemption of public consultation for multiple other projects, including some linear projects (such as roads and pipelines) in Border Areas[8] and projects concerning national defence and security or other strategic considerations. (Section 14 (2))

In preparation for the public hearings, only a summary of the EIA report needs to be provided in the regional language of the State or Union Territory. In contrast, the full draft EIA report will need to be written in English. (Section 14 (3))

The public consultation process may be waived if the Regulatory Authority believes that it is not possible to conduct the public hearing in case the local communities are not able to express themselves freely. (Section 14 (8))

The public has a notice period of a minimum of twenty days to furnish their responses to the draft EIA report. This duration is shorter than the previous norm of thirty days. (Appendix 1 (7) 7.1(ii))

4. Reducing the requirements for compliance monitoring

While the previous regulation required the project proponents to submit compliance reports twice every year, the draft notification proposes that compliance reports need to be submitted annually. (Section 20 (4))

Uncovering cases of non-compliance of EC commitments is time-sensitive. One way of uncovering non-compliance is through the compliance reports that the project proponents must submit every year. Fines are levied for not submitting the yearly report on time, and it takes three consecutive years of no submissions before the project’s EC is automatically revoked. (Section 20 (5))

The communities affected by projects are important stakeholders as they would be directly impacted by environmental mismanagement. The draft notification does not have a provision for the public to report violations or non-compliance of the agreed-upon EIA. (Section 22(1) and Section 23(1))

The Way Forward

The issue of exemption of some projects from the requirement of preparing an EIA report is critical for environmental protection. The exempted projects pose a risk to the environment. Thorough due diligence needs must precede before granting such an exemption.

There is some well-researched literature in the context of the good global practices for Environmental Impact Assessments, highlighted in the first section of this note. It is crucial to adopt the best practices in the interest of the long-term sustainability of growth and environment.

The EIA process can seek inputs and guidance from various disciplines, including public policy planning, risk management, administrative law, environmental policy and megaproject planning (Joseph et al., 2015).[9]

A “meaningful public participation” should be integral to preparing an EIA process and should “occur early and be sustained throughout the process”. A forward-looking EIA strategy should ensure that stakeholders are involved in the EIA decision-making process well in advance, and opportunities should be given for “information sharing and problem solving” (Arnold and Hanna, 2020).[10]

The Intergovernmental Forum on Mining, Minerals and Sustainable Development (IGF), International Institute for Sustainable Development underscores the importance of stakeholder and community engagement grievance mechanisms in the monitoring process, which can help in avoiding conflicts between communities and companies (IISD, 2020).[11] Very few countries include provisions for indigenous communities (UNEP, 2020).[12]

The Minister for Environment, Forest, and Climate Change has taken note of public criticism. He spoke on August 10 saying, “How can a draft notification [referring to the draft EIA Notification, 2020] be protested? It’s still a draft. We’ve received several suggestions after soliciting comment for nearly 150 days as opposed to the norm of 60 days. We will consider these and after that a final notification will be prepared.”[13]

We hope that the government will take into consideration the points raised during the public consultation process as well as pay heed to the suggestions from international good practices when it revises the draft notification.