While all eyes were on elections, the government moved to overhaul environmental clearance rules

In April, as India was busy in the 2019 parliamentary elections, the central government moved to “re-engineer” the Environment Impact Assessment Notification 2006, which governs environment clearance for industrial projects.

Experts who have analysed the zero draft (a first attempt at the draft) of the Environmental Impact Assessment notification 2019 opined that it weakens the existing notification and favours the industry, without focusing on strengthening the monitoring and compliance mechanism of the environment clearance process.

The zero draft has been prepared by the Impact Assessment division of the central government’s Ministry of Environment, Forest and Climate Change. It has been sent to all state governments and state pollution control boards on April 15, seeking their views to finalise the draft notification. The draft 2019 EIA notification will then be put in the public domain to consult all stakeholders.

In 2006, the environment ministry came out with the EIA notification to regulate the process of environment clearance for any new project or expansion related to the mining of coal or other minerals, infrastructure development, thermal power plants, nuclear power plants, hydropower projects, real estate projects, and other industrial projects. Under this notification, the projects are assessed on the basis of their potential impact on the environment before they are recommended or denied environment clearance by sector-specific expert appraisal committees. The 2006 notification was developed to replace the original EIA notification of 1994.

The environment ministry’s April letter to states said that based on requirements “from time to time the ministry has notified various amendments to the principal notification” and “as the principal notification has undergone substantial changes over the years, the ministry has decided to re-engineer the entire notification in line with the amendments issues, office memorandums and circulars issued from time to time and the experience gained over the years in implementation of EIA notification”.

The ministry has asked for views of all states on the zero draft within one month, following which it will be put up for public consultation to determine the final shape of the EIA notification 2019. An environment ministry official on condition of anonymity said that they would be analysing all the comments, already received and some they are expected to get soon, before publishing the final draft of the EIA notification 2019 for larger consultation.

Since 2006, when the EIA notification first outlined the environment clearance process, thousands of projects have been appraised by expert committees formed by the Ministry of Environment, Forest and Climate Change. As per the 2006 EIA notification, no project could start work without prior environment clearance.

Vikrant Tongad, a Noida-based activist, who has analysed the zero draft of the EIA notification 2019, said that the government should have focused on strengthening the present notification and ensuring its proper implementation rather than proposing a new version that is “aimed at diluting the 2006 notification.”

“How strong the present 2006 EIA notification is, is debatable, but the problem is that its implementation has not been satisfactory so far. This revision will lead to further weakening of the environment clearance rules. The important point is that most of the changes brought in the zero draft are the ones that are already under legal scrutiny at different forums,” Tongad told Mongabay-India.

Environment clearance rules weakened

The zero-draft, a copy of which has been reviewed by Mongabay-India, reveals that the government is proposing to create a district-level environment impact assessment authority for matters related to the mining of minor minerals (including sand) and “medium units” of many industries as defined by the government.

Local bodies such as municipalities, development authorities and district panchayats, shall stipulate environmental conditions while granting building permissions for building or construction projects, industrial sheds, educational institutions, hospitals and hostels for educational institutions within prescribed area. Townships and area development projects with built-up area more than 150,000 square metres is proposed to be handled by the state level authorities, it said

Tongad said that most of the changes proposed in the zero-draft, like easing of environmental clearance rules pertaining to building and construction sector, have been already legally challenged when they were proposed separately last year.

“Similarly, the proposed rules also ask for the creation of a district-level environment impact assessment authority for mining of minor minerals among other things. But they have been proposed before as well and there is already a case in the National Green Tribunal about them. This is nothing but a nexus of the politicians-builder lobby which is behind this. This is their sheer desperation otherwise why are these changes proposed even when similar cases opposing such changes are already in the court. There is no scientific study as well which supports these changes,” he said.

He emphasised that, if accepted, these rules will lead to unchecked mushrooming of the real estate sector which would then result in higher air, water and river pollution.

Himanshu Thakkar, who is the coordinator of the South Asia Network on Dams, Rivers and People, a network of organisations and individuals working on issues related to the water sector, specifically associated to large dams, echoed similar views.

“There is no real analysis of the experience of EIA notification so far and what lessons can be learnt to improve the outcomes and improve the effectiveness of the EIA notification. There is no attempt to achieve independence of the [environmental clearance] process … Instead, there is an attempt to further dilute the process,” Thakkar told Mongabay-India.

He emphasised that similar to the 2006 version of the notification, the 2019 zero-draft continues to keep projects related to drinking water, water supply, flood control, riverfront development, river navigation related project and river dredging out of the environmental clearance process despite them having serious environmental costs.

The zero-draft also relaxes rules for the hydropower sector. For instance, earlier the hydropower projects above 50 megawatts capacity were included to be decided by the expert panels of the central government’s environment ministry but now that limit has been increased to 75 megawatt. “This has been done without any reason,” Thakkar said.

Is there any hope for improving monitoring and compliance mechanism?

Any project that gets an environment clearance has to fulfil a certain set of conditions to minimise its impact on the environment. But over the years, the main complaint of activists has been that the environment ministry has not focussed on monitoring and compliance of conditions on the basis of which projects received clearance.

On the monitoring process, the zero-draft said that the environment ministry will empanel government institutions of national repute for carrying out compliance monitoring of environment clearance conditions of projects and activities in a random manner.

Kanchi Kohli, who is an environmentalist and a legal researcher with the Centre for Policy Research, said that the zero draft starts on a wrong premise that the 2006 EIA notification “has succeeded in realising necessary safeguards and has been a transparent process”.

“Once again the review process is a missed opportunity to set up a robust monitoring framework for compliance of environmental safeguards. The draft introduces an amendment proposed in September 2018 by which government institutions will be empanelled for compliance. This change was never finalised and now has been brought into the draft. Another problematic issue is that compliance monitoring will be based on the information available in the EIA/EMP [environment management plan] reports which have proved to be inadequate and misleading in instances where it has been challenged,” Kohli said.

However, an Ministry of Environment, Forest and Climate Change official on condition of anonymity defended the decision.

“There is no secrecy. We are following a proper process. There is no question of diluting the rules. The revision of the notification was required urgently as more than a decade has passed since their inception and they needed to be updated with the changing times,” said the official.

The draft leaves the door open for frequent changes

The zero-draft stated that the Ministry of Environment, Forest and Climate Change will constitute an expert committee which will routinely review the categorisation of projects that are to be appraised for environment clearance by expert panels at the central, state and district levels.

“This will make the law extremely unstable and render itself to routine amendment, the justification of which will not be known. More importantly, it will create a lot of confusion for enforcement. For affected people who rarely have access to the law and its amendments, this will be an additional disadvantage, alienating them from the regulatory process,” Kohli stressed.

Activists also believe that the zero draft introduces several caveats including in the public consultation section and all of them favours the organisations undertaking the infrastructure projects.

“It allows for confidential information submitted as part of the EC application not to be publicly disclosed. This will allow project proponents to hold back critical information on project design and technology citing that the information is legally privileged or attracts IPRs [intellectual property rights]. Without such information available, the public consultation will be without deliberation and requisite information for people to understand the implications of the project,” Kohli told Mongabay-India.

Explaining further, she said that then there is an 11-point exemption list for projects requiring public consultations, and many of them are for expansion projects.

“These projects require stricter public scrutiny as there is already a lived impact that can be drawn upon irrespective of what is recorded in the monitoring and compliance reports. The environment ministry will miss a huge opportunity if such projects are exempted to take mid-course corrections. There have been several examples including the recent violence in Sterlite, Tuticorin where the project was on the verge of expansion,” Kohli added.

This article first appeared on Mongabay.