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Envisioning mandatory Environmental Impact Assessment and Public Participation in Urban Development

introduction

Environmental Impact Assessment (henceforth referred to as EIA) refers to a pre-project appraisal of any developmental project which assesses its environmental, economic and social impacts which ultimately result in the issuance of environmental clearance for the project. An environmental clearance can only be obtained on the realisation of several conditions both, at the time of establishment and operation of a project, which is laid down by an expert committee. Principle 17 of the Rio Declaration refers to EIA as a state exercise which is to be carried out for “proposed activities that are likely to have a significant adverse impact on the environment”.

In India, the EIA regulations were first created by the Central Government in 1994, by its power under Section 3 of the Environment (Protection) Act, 1986 and these were then succeeded by the EIA regulations of 2006. In 2020, a draft EIA notification inviting public comments was released by the Ministry of Environment, Forest and Climate Change (MoEF), which has come under fire from various legal and scientific sources for being ‘pro-industry’ and further diluting accountability and scrutiny under the public eye.     

the need for mandatory environmental impact assessment

With rising rural-to-urban migration and the increase in urban area across the country, there is a burgeoning need for the implementation of balanced urban planning schemes which ensure that such expansion has minimal adverse impact on the environment while also meeting the development needs. However, the pillar of social justice of Sustainable Development must also be given priority to ensure that urban development does not lead to a rise in the population of urban poor. 

According to the UNEP (United Nations Environment Program) Report on EIA, the EIA is a tried and tested tool which is instrumental for the realisation of the Sustainable Development Goals. The report notes how the inclusion of EIA and Strategic Environmental Assessment (SEA) elements in Urban Planning helps in better impact analysis and monitoring of developmental activity, facilitating better cooperation and coordination among various authorities and promoting sustainable land use and development. 

A division Bench of the Supreme Court of India in Residents Welfare Association v. Union Territory of Chandigarh (2023) urged the executive, legislature and policymakers at both central and state levels to make EIA mandatory for all projects relating to urban development.

addressing current limitations for a sustainable future

Since its inception, the EIA regime in India has garnered criticism for proving ineffective as a proper safeguard to prevent environmental exploitation and not being able to properly incorporate the precautionary principle of environmental law. An alarming number of scholars have pointed out that the EIA regime suffers from poor screening, lack of adequate reports, poor public participation, and lack of a regular and periodic impact assessment mechanism post-establishment and a proper monitoring mechanism. 

  • The 2006 notification has classified a certain limited number of developmental activities into two categories- Category A & B, based on the jurisdiction of the MoEF or the State Environment Impact Assessment Authority (SEIAA) respectively. It is here that the EIA norms prove insufficient as there is no clarity as to what rules shall apply to any other activity which is not classified in any of the two categories. The lack of a clear statement of objectives, unlike other foreign jurisdictions, also hinders a judicial review of the EIA process.
  • Vidhi Centre for Legal Policy in its research has recommended the need to consolidate all official guidelines, office memoranda etc. on EIA as it would ensure unambiguity and clarity regarding the provisions and their latest amendments. Due to a lack of legislation, EIA is entirely governed by administrative dictates which are liable to frequent amendments which underwhelm the EIA framework and its functionality. It also advocates for transparency in the expert committees’ consideration of the requisites of environmental clearance in each case.
  • The Indian EIA regime also suffers from the common ailments which plague EIA regimes around the world which are the lack of criteria to determine when a project requires EIA, lack of proper safeguards for ensuring the community rights of all possible stakeholders, especially the marginalised, no scope for transboundary impact assessment, more focus on ‘direct’ impact on the environment and not enough focus on the social or indirect impacts, etc.

democratising environmental impact assessment: the need for public participation

Public Participation is based upon the fundamental rule of a fair procedure of audi alteram partem It refers to the inclusion and participation of all the stakeholders, primarily the common people, in environmental decision-making so that the plurality of perspectives would help supplement scientific and technical advice which would ensure sustainable development and is reflected in principle 10 of the Rio Declaration. In India, under the Right to Information Act of 2005, the Central Information Commission has made uploading of pre-feasibility reports of developmental projects on the ministry website mandatory and the EIA notification, 2006 further provides for access of crucial documents to the general public ensuring transparency. The 2006 notification also provides for public hearings after the EIA report is prepared and published to the general public. However, the Notification has been amended subsequently, in different instances, which has diluted this provision. One such example would be the amendment of 2017, which exempts coal mining projects from public hearings if they expand within 40 per cent of their original capacity. The proposed 2020 notification further jeopardizes public participation, as it removes public consultation for certain modernization projects, projects of notified estates, construction projects, flyovers, etc. It also provides for arbitrariness which is against the Rule of Law as it gives power to a regulatory authority to decide the need for a public hearing in any project and also allows secrecy of environmental clearance documents relating to national defence and security.        

conclusion

The central problem with the EIA regime in India remains the fact that it is entirely regulated and carried out under an administrative instrument which can be easily amended by the Executive at its convenience. This allows for arbitrariness and a lack of a permanent framework or general principle which would guide all Environmental Clearance conditions. Hence, the pressing need of the hour remains the passing of an EIA legislation which would take into consideration all significant observations of the Supreme Court of India and the National Green Tribunal and the established international environmental law principles like the Precautionary Principal, and Polluter Pays Principal. Above all else, to ensure social justice and thereby sustainable development, Public Participation must be restored to its original status and reinforced with stronger safeguards and a proper grievance redressal system so that no one is left behind in India’s path towards a developed economy. 

Author(s) Name: Sadia Hasan Khan (Hidayatullah National Law University)