On 11th August 2020, the last date for public feedback regarding the new amendments to the draft Environment Impact Assessment (EIA) 2020 notification was over. The feedback form recorded an astonishing 17 lakh opinions and comments from the public approximately which put this so-called mere draft into wide public highlight inviting protests and petitions from environmentalists and activists. Unsurprisingly, the most averse proposal was the post-facto clearance of projects being called out for violation of the Environment (Protection) Act (EPA).
This blog will look into the contents of Draft EIA 2020 and why it is a matter of controversy.
EIA AND ITS HISTORICAL BACKGROUND
According to UNEP, “Environmental Impact Assessment (EIA) is a tool used to identify the environmental, social and economic impacts of a project before decision-making.” It is an official document containing laws and regulatory methods to assess developmental and industrial projects for the environmental impacts they can cause and henceforth to decide the allowance for those certain projects. The need for EIA first arose when examining the river-valley projects by the Department of Science and Technology on the grounds of environmental impacts in 1976. The first EIA notification was passed in 1994 and EIA is statutorily backed by the Environment Protection Act, 1986.
The 2006 amendment decentralized project clearances and classified them into two categories that are Category A which had national level appraisal with mandated environmental clearance and Category B having state-level appraisal which is further differentiated into requiring EIA and not requiring EIA. The 2006 amendment mandated environmental clearance for projects such as mining, river valleys, thermal power plants, infrastructure as well as industries including very small electroplating or foundry units also.
So what exactly changed which gave arose to wide public dissatisfaction with the 2020 EIA draft?
AMENDMENTS IN DRAFT EIA NOTIFICATION 2020
Draft EIA notification 2020 was published by the Ministry of Environment, Forest and Climate Change (MoEF&CC) for replacing the 2006 EIA notification.
The main provisions proposed are:
- Time for public hearings to be reduced from 30 days to 20 days.
- Categorization of projects for exemption.
Projects are categorized into A, B1 and B2 with B2 containing the lists of projects which are exempted from environmental clearance. These projects include oil, gas and shale exploration, all inland waterway projects, hydroelectric projects up to 25MW, small to medium cement plants, acids other than phosphoric or ammonia, sulphuric acids etc.
- Submission of compliance reports increased from six months to annually.
- Reporting of non-compliance and violation by the public is no more to be valid. Reports from only violator-promoter,government authority, Appraisal Committee or Regulatory Authority will be taken into consideration by the government.
- Post facto clearance: This is a major proposal in 2020 notification that grants allowance to apply or regularize for clearance if they have been operating without environmental clearance.
ISSUES AND CONTROVERSY AROSE OVER THE AMENDMENTS
A major amount of controversy and opposing comments were invited due to the provision for post-facto clearance. Many have argued that this provision will encourage corporations and industries to operate without proper environmental clearance (EC) and eventually when caught, will be easily able to get regularized by paying just a fine. This will open a “floodgate for violations.” The public was also quick to point out how this provision came in contrary to the judiciary’s statement in the case of Alembic Pharmaceutical vs. Rohit Prajapati in April 2020 where it was held that “The concept of an ex post facto EC (environmental clearance) is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA notification dated 27 January 1994. It is, as the judgment in Common Cause holds, detrimental to the environment and could lead to irreparable degradation.”
The main issue with this provision is that as soon as the government provides simply a fine for avoiding something as essential as EC, it is allowing industries especially the big corporations involved in the manufacturing of products with harmful raw materials a leeway to escape assessment and involvement of government. It will become just too simple for them as they can simply pay a fine and carry on their acts which are degrading for the environment and local people without any laws putting strict measures to it. The fact that regularization is allowed even after the projects knowingly avoiding EC speaks volumes about the wrong encouragement the government is trying to provide with this provision.
Disallowing public reporting of non-compliance and violations to the environment act is argued as nothing but the government’s efforts to increase its power by suppressing the public. The major classes of people affected by environmental degradation are local and indigenous people mainly belonging to poorer classes and the area of residence of these affected people is usually close by to industries and artificial projects. With a lack of support or means to bring the attention of government and regulatory bodies to the haphazard created by the industries, they have no way other than taking the matters themselves to legal authorities if possible. With a lack of education and awareness summing up with the “no public reporting” provision, it is argued that the government is not protecting tribal rights, limiting public engagement to make it easier to work alongside major corporations and industrial projects without taking into account safeguards for the environment.
One of the most visible controversial provisions to this amendment is the provisions for exemption of certain list of projects which includes projects as environmentally disastrous as mining, onshore and offshore oil drilling, gas and shale exploration along with highway widening projects and inland waterway projects which directly involve damage to natural resources. Without proper EC mechanisms, the amount of environmental damage and local people and resources degradation it can cause is insurmountable. The 2006 amendment mandated EC for all these projects but the recent amendments without any explanation have simply put such major and high scale projects into exemption lists which shows the accountability the government has for the environment which is zilch to none.
The earth is already withering with the increasing pollution, climate change and not to mention the looming pandemic. While environment consciousness is gradually developing among the public with the fashion market looking for sustainable clothing and youth and social media movements popularized in support of the environment, the amendments like EIA notification 2020 prove that the government is nowhere near towards providing for the needs of the world they live in, in fact, they are trying to drift farther away into the loophole of profit-making and industrialization in the name of modernization while the country and its resources are at bleak.
The suggestion is for the government to review and re-amend the provision looking into the cries of the public as it is the public for which the laws exist. It is high time that damage to the environment be considered as nothing less than crime and equal to damage to life, which it is.
Author(s) Name: Gargi Gouri (Student, National Law University Odisha)
 Asmita Bakshi, ‘EIA Draft 2020: “Violation of Environmental Law Is Seen as Development”’ (livemint.com, 2021) <https://www.livemint.com/mint-lounge/features/eia-draft-2020-violation-of-environmental-law-is-seen-as-development-11597593043757.html> accessed 30 July 2021.
 Section 3, Environment Protection Act, 1986.
 ‘Draft Environmental Impact Assessment Notification, 2020 – Environment – India’ (mondaq.com, 2021) <https://www.mondaq.com/india/climate-change/985614/draft-environmental-impact-assessment-notification-2020> accessed 30 July 2021.
 2020 SCC OnLine SC 347