Indian government can now clear one more kind of mining project without consulting the public

Indian government’s environment ministry has come out with an order with which the mining industry can avoid public hearing for projects which were granted environment clearance under the Environmental Impact Assessment notification 1994.

Under India’s environmental laws, industrial projects such as mining, highways, power plants, dams are granted environment clearance after a detailed process involving public hearing and an appraisal by expert committees.

Once the Environment (Protection) Act 1986 came into force, such projects were first brought under regulation through EIA notification 1994 which was then updated with the EIA notification 2006 to reflect the required changes. In 2020, the central government came up with a draft 2020 version which has, so far, been controversial and ended up in court seeking wider public consultations.

New order

Now, in February, the Union Ministry of Environment, Forest and Climate Change has come out with an order that seems to make operations easier for the legacy mining projects.

The ministry’s February 16 order highlighted that its April 2018 order enabled those “whose environmental clearance under was granted EIA notification 1994 and was considered as valid for five years, to apply for environment clearance under EIA notification 2006”.

“In such cases, a public hearing has already been conducted earlier [at the time of grant of environment clearance under EIA notification 1994] for the same project to undertake activities at that place and for that quantity,” the order noted.

Thus the environment ministry, in its latest order, said: “the requirement of undertaking public hearing again has been reviewed keeping in view that the mining activity at that place was being undertaken since past several years. In such cases, fresh public hearing, to decide whether mining activity could be undertaken at that place and for that quantity, may not be warranted since these are legacy cases”.

However, it noted that the “views of the public are required to be obtained in such cases through other modes of public consultation process stipulated in the EIA notification 2006”.

Under the EIA notification 2006, the public hearing is a process during which the people (who are going to be affected), near the site of the project or in close proximity can access the draft EIA report and record their concerns in front of the government authorities. It is considered an important component in the complete environment clearance process as sometimes serious opposition during these hearings or people highlighting lacunae in the process has led to projects getting shelved or cancelled.

The environment ministry in its February order noted that to “ensure uniformity in approach in these legacy cases, it has been decided that in such cases the project proponent shall invite the suggestions/objections as wider part of public consultations for the project, instead of public hearing”.

But provided the project will not result in any “increase in the production capacity and mining lease, no change in mining [mining method, mining plan, mineral transportation, water requirement, reclamation plan] is involved” and that the mine “has not discontinued operations for a period of more than five years from the date of application for grant of environment clearance”.

According to the public consultation process mentioned in the EIA notification 2006, besides public hearing, written responses can be obtained from concerned persons “having a plausible stake in the environmental aspects of the project or activity”. Once the public consultation project is undertaken, the applicant is mandated to address all the environmental concerns expressed during this process and make the required changes in the draft EIA and environmental management plant.

Kanchi Kohli, a senior researcher with the Delhi-based Centre for Policy Research, emphasised, that public hearings need to be understood as a tool for good governance that is critical both for the economy and the environment.

“It is a legal and a legitimate space where project authorities, the government and project-affected people come face to face in an official forum where the history of a project’s operations and new knowledge can inform decisions,” she explained to Mongabay-India. “Public hearings also provide an opportunity to EIA consultants to present the project impacts to a wider set of people who may not be able to navigate the technicalities of bulky impact assessment reports. It is for this reason that the EIA notification includes a physical space for interaction along with seeking written comments.”

She noted that in the present case, “an office memorandum is not just selectively reading down what is required by law, but is also taking a myopic approach to public hearings”.

“If a project is already in operation and is seeking an expansion, such hearings bring to light serious legacy issues arising out of non-compliance of mandatory safeguards including pollution, rehabilitation, and occupational health,” Kohli said. “Where projects have not begun operations, relying on 15–year to 20-year-old public hearing defies good business practice and sound regulatory logic. You may have environmental approval, but it would have little or no social legitimacy.”

The public consultation process is normally followed by the project’s scrutiny by the expert committee which considers EIA reports and public consultation outcome for granting or rejecting environmental clearance to the project.

However, the latest order, while easing the path for the mining industry, may not favour the mining-affected communities and environment which undergoes a series of changes once the mining activities starts in an area.

Reforms in mining

In fact, the dilution of the public hearing process has been on the government’s radar for some time now. In September 2017, the environment ministry had allowed coal mine expansion upto 40% of capacity, if there was no increase in area for the proposed expansion. It had also held that such an expansion can be allowed if “mineral transport is through conveyor system up to the silo and loading to railway wagons, and not by road”.

In 2020, following in the footsteps of the coal ministry, the union ministry of mines had also sought a similar exemption for non-coal mining projects.

In a notification published on March 18, 2021, the environment ministry has said that the projects where construction and commissioning of proposed activities have not been completed within the validity period of the environmental clearance and a fresh application for EC have been submitted, the concerned expert committee “may exempt the requirement of public hearing subject to the condition that the project has been implemented not less than 50% in its physical form or construction”.

Also, throughout 2020, the Indian government’s effort has been to ease rules for undertaking mining activities and bring changes to give a boost to the sector.

The government’s ministers have maintained that the mining sector, especially coal, will be an important contributor to India, nearly doubling the size of its economy and become a five trillion dollar economy. The government has also said that mining sector amendments are crucial to India’s efforts in reviving the economy post-Covid-19.

Over the past few months, the government has proposed several changes in the mining sector. The latest move was on March 15, when the government introduced the Mines and Minerals (Development and Regulation) Amendment Bill, 2021 in Lok Sabha.

The bill proposes the removal of the restriction on end-use of minerals, eases rules for the sale of minerals by captive mines, empowers the central government to auction mines of states in certain cases, eases the process for the transfer of statutory clearances, provides a way for the extension of leases to government companies, conditions for lapse of mining lease, and talks about non-exclusive reconnaissance permit.

This article first appeared on Mongabay.