EIA Draft 2020: An overview

The EIA 2020 draft notification was published by the Ministry of Environment, Forest and Climate Change (MoEF&CC), intending to replace the existing Environmental Impact Assessment Notification, 2006 under the Environment (Protection) Act, 1986. Ever since it was published, the draft was subjected to criticism and debate over its departure from existing regulations. Here is an overview.

What is EIA?

Environmental Impact Assessment (EIA) is a decision-making tool based on the study of the effects and impact of a particular proposed project on the environment. The EIA compares various alternatives available for a project, to identify the best option in terms of both financial and environmental costs, while ensuring they meet the desired objectives of the project.

EIA tries to predict both the positive and negative consequences even before the actual execution starts, so that these impacts can be mitigated by setting mitigative measures, both preventive and corrective.

By proactively considering such environmental impacts early in the planning process and setting up mitigative measures leads to benefits on multiple fronts such as:

• Environmental protection and sustainable development
• Optimum utilization of resources
• Public awareness
• Lesser conflicts later on during execution
• Increased project acceptance

History

The concept of EIA was first introduced in the US back in the early ’70s. Until then, projects were analysed only from a technical and economic feasibility, with little to no thoughts about the potential environmental impacts of the same.

Though, we in India started looking at projects from an environment angle back in 1976-77. It further took us nearly 20 years to make Environmental Clearance (EC) mandatory.

It was only on 27 January 1994, by the Assessment Notification by the Government of India’s Union Ministry of Environment and Forests (MEF)on Environmental Impact Assessment of Development Projects under the Environmental (Protection) Act 1986, Environmental Clearance (EC) was made mandatory for expansion or modernisation of any activity or for setting up new projects.

The current form of EIA is from 2006, with amendments made till 2015.

EIA 2020 Draft Notification

The Ministry of Environment, Forest and Climate Change (MoEF&CC) has published the new draft Environment Impact Assessment (EIA) Notification 2020, intending to replace the existing EIA Notification, 2006 under the Environment (Protection) Act, 1986. And along with it came an array of criticism and debates over its deviations from existing regulations and dilution of major clauses, including those of Public Consultations. Let’s take a look at some of them.

Key Issues

Well, if everything about the EIA is about protecting the environment and on benefit of it, why such an uproar about the new EIA 2020 Draft Notification?

The fundamental problem with the new EIA Draft 2020 is that it dilutes the underlying objective of having the EIA in the first place. And this they say is to improve ease of doing business, more transparent and expedient through implementation of online system, further delegations, rationalization, standardization of the process, etc, but at the cost of weakened environmental regulations, decreased community involvement and knocking off the balance between sustainable development and environmental protection.

Post-facto Clearance

Post-facto clearance makes it possible for projects that are already in violation of the Environment Protection Act to apply for clearance.

This is despite the Supreme Court ruling on April 1 on the Alembic Pharmaceuticals Ltd. versus Rohit Prajapati & Ors. case that issuing of ex post facto clearances is contrary to law and held that the concept of an “ex post facto environmental clearance” was not sustainable with reference to any provision of law.

Dealing with violations

The draft EIA states that notice of violations i.e cases where projects have either started the construction work or installation or excavation, whichever is earlier, on site or expanded the production and / or project area beyond the limit specified in the prior-EC without obtaining prior-EC or prior-EP can only be made on the:

• By the “suo moto” application of the project proponent or
• By any Government Authority or when
• found during the appraisal by Appraisal Committee; or
• found during the processing of application, if any, by the Regulatory Authority.

This is like saying if a thief had committed a theft, he/she should report the crime at the nearest Police Station pro-actively!!

Also, the quantum of penalties levied on notice of violation is too small to deter project proponents from committing such violations.

On cognizance of violation through suo moto application (by the violator itself), a late fee of Rs. 1,000/- per day in case of Category ‘B2’ projects; Rs. 2,000/- per day in case of Category ‘B1’ projects; and Rs. 5,000/- per day in case of Category ‘A’ projects. And double that amount, if reported by a government authority.

Also, all a violator needs to do in case proven guilty 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”

Dilution of Public Consultations

One of the greatest strength of the current EIA norms is that it encouraged public participation in the process through public hearings to be arranged in a systematic, time bound and transparent manner ensuring widest possible public participation at the project site(s) or in its close proximity.

The new draft dilutes this objective in the following manner

• The project proponent shall arrange for “one” hard copy and one soft copy of the draft EIA Report, whereas in the earlier amendment this number was “10”
• Reduced the time allocated for responding from 30 days to 20 days.
• There is no minimum attendance requirement to start the proceedings of the public hearing.
• The draft allows for conducting the public hearing through any other appropriate mode, as recommended by the Appraisal Committee, or the Regulatory Authority.
  • But this is not a very solution because, if the authority decides to conduct the meeting via Video Conferencing, it might not be possible for all the community members to take part in it.

Baseline data from only one season

An EIA report needs baseline data to predict the impact of the project on the environment. The current draft proposes to assess data for a single season, excluding monsoon for this purpose. This will lead to less reliable data and projections for the EIA report, causing it to be misleading.

Relaxed Norms for buildings

Confederation of Real Estate Developers Association of India (CREDAI) an association comprising all big players of India was against the EIA rules on buildings since the 2006 amendments that brought all projects between 20,000 square metres and 1,50,000 square metres within the ambit of EIA. The real estate industry supported the environment ministry’s proposal to relax the area criteria from 20,000 square metres to 50,000 square metres.

This was an attempt to extend the limit of 20,000 sq meters to over 50,000 sq meters and thus make the EIA process ineffectual for buildings as over 90% of buildings fall under that category.

The Union Ministry of Environment and Forests issued the January 19, 2009 draft notification of Environment Impact Assessment (EIA) rules to exclude construction projects including the housing projects, commercial and retail construction that are less than 50,000 sq. mt. of built-up area from the ambit of the Environment Impact Assessment and the Environment Protection Act 1986.

This limit was further increased to 1,50,000 sq meters in the current draft, virtually rendering the EIA process useless for buildings in the EIA Draft 2020,

Strategic Label

The current draft allows for certain degree of relaxation of EIA for any project that has been classified as “Strategic” and in “National Interest” This allows for labeling projects as “strategic” to bypass the EIA norms. The draft does so by saying that “no information relating to such projects shall be placed in the public domain.”

While these hold acceptable for projects concerning national defence and security, the lack of clarity around projects “involving other strategic considerations, as determined by the Central Government” is a cause for concern.

Relaxed Post-Approval Monitoring

The frequency of post approval monitoring has been reduced from once in six months to once in a year. Also, the project proponent can delay the submission of submission of yearly compliance report for 3 consecutive years by paying small amounts of fine amounting from 500 to 2500 rupees a day.

EIA Exemptions

Under clause 26 of the EIA draft, over 40 exceptions including, but not limited to the following are proposed:

• Solar Photo Voltaic (PV) Power projects, Solar Thermal Power Plants and development of Solar Parks
• Coal and non-coal mineral prospecting
• Secondary metallurgical foundry units
• Manufacturing and processing of a variety of chemicals

Suggestions

1. Projects should not be granted post facto clearances.
2. Ensure local affected persons or others who have a plausible stake in the project to report violations rather than suo moto applications and by governing authorities.
3. Ensure greater public participation by increasing the time allowed for responding from 20 days to a minimum of 45 days.
4. Ensure the number of hard copies of the EIA report to be maintained for public consultation to be not less than 10.
5. Ensure the public consultations take place physically rather than through alternate methods as recommended by the committee.
6. Set in place, a minimum attendance requirement for public consultations to be considered valid.
7. Other than projects concerning national defence and security, clearly define which projects make up Projects of Strategic Importance.
8. Continue enforcing EIA norms on building projects greater than 50,000 square metres.
9. When calculating baseline date, ensure data is collected all year and not just for a single season to ensure data reliability.
10. Ensure compliance reports are submitted bi-annually and revoke EC/EP if violations continue for 2 consecutive terms of 6 months.

What can you do?

The draft itself encourages public participation, and as responsible citizens, it’s our duty to raise concerns regarding such a sensitive topic concerning our environment. We need to involve ourself in such issues and not wait for another tragedy to strike to raise our voices.

Any person interested in making any objections or suggestions on the proposal contained in the draft notification may forward the same in writing for consideration of the Central Government within the period so specified to the Secretary, Ministry of Environment, Forest and Climate Change, Indira Paryavaran Bhawan, Jor Bagh Road, Aliganj, New Delhi 110 003, or send it to the e-mail address at eia2020-moefcc@gov.in

Last date for submission of objections or suggestions: August 11, 2020.

Conclusion

The fact that we are even discussing administrative and judicial notification on public domain shows how concerned people are over the impact of such a diluted EIA notification can have on our environment and future generations. A lot of young students, activists, environmentalists, social media influences etc have taken up this issue seriously and are doing a magnificent job at informing and educating the general public about such a move.

Let’s hope with the kind of public participation currently seen, a better and comprehensive Environmental Impact Assessment norms will be set in place, where both development and environment are equally winners and ensure environmental damage does not end up as an acceptable collateral cost for development.

Have I missed any of the key issues? Have a difference of opinion on any of the issues raised? Have a great suggestion? Do let me know them in the comments below.

References

1. EIA Draft Notification 2020 (Important points highlighted)
2. Environment Impact Assessment for Buildings: Kid’s gloves
3. EIA Draft 2020: All the ways it weakens an important environmental safeguard
4. Why draft EIA 2020 needs a revaluation
5. Centre for Science and Environment: Understanding EIA
6. Draft EIA notification fosters non-transparency, encourages environmental violations
7. Draft EIA notification institutionalises 1 season data for baseline
8. Primer on the Draft EIA
9. Civil Appeal No. 1526 of 2016, Alembic Pharmaceuticals Ltd. versus Rohit Prajapati & Ors

Request to readers: EIA needs your attention, if you think so too, read about it, engage in discussions, make up your mind and add your inputs to the public consultation process by sharing your thoughts to eia2020-moefcc@gov.in by August 11, 2020

E S Krishna Ram

Krishna Ram is the man behind the website you are currently on. For more updates follow me: