The Final Stand’s response to the Draft EIA Notification 2020

In early August, students at TFS sent a letter to the Environment Ministry voicing their opposition to the Draft EIA Notification, 2020. The letter is reproduced below.

Respected Sir,

We, The Final Stand (TFS), a student- led climate change research and advocacy organisation as well as a group of concerned citizens of this country, are writing to you to record our opposition to the amendments proposed in the Draft EIA Notification 2020 vide Draft S.O. 1199(E) dated 23rd March 2020.

The amendments proposed dilute environmental safeguards as well as register a deep attack on our rights which have been guaranteed to us by the Indian Constitution. We hope that you shall find the reasons listed below to be satisfactorily convincing to reflect and scrape unconstitutional and environmentally destructive amendments in their entirety.

1. POST FACTO CLEARANCES:

The Draft proposes for post facto clearances which would legitimize projects that did not obtain prior Environmental Clearance (EC). This allows for projects violating fundamentals of environmental law as well as the Environment Protection Act, 1986 to conveniently file for and gain ECs. Granting post-facto clearances violates the Precautionary Principle, which is one of the primary objectives of EIA regulations. There is no effective policy to prevent violations in the first place. Moreover, the mere condition that a violator needs to fulfil is to pay a fine for remediation and resource augmentation which is 1.5 to 2 times the ecological damage and economic benefit derived from the particular violation. Decades of studies and learning from environmental disasters have proven that in the absence of legal punitive measures, fines alone do little to disincentivise violators from continuing to pollute. Further, allowing post- facto clearances in direct contravention of the Supreme Court’s decision in Alembic Pharmaceuticals v. Rohit Prajapati, where post facto environmental clearances were found to be unsustainable in law.

2.ARBITRARY EXCLUSION OF PROJECTS FROM PURVIEW OF EIA AND PUBLIC CONSULTATION PROCESS:

Public consultation is a fundamental component of the environment clearance process. It provides an opportunity to local communities and other individuals who have a plausible stake in the environmental impact of the proposed project, to ensure that their concerns are heard and appropriately accounted for while designing and assessing the project. This step is important because it is usually these local communities that are affected the most by these environmental projects and consequently perceive environmental costs and risks more clearly. The intention behind a public consultation process is to address these very concerns of the stakeholders and set up the necessary safeguards to enhance the environmental feasibility of a project, making it more acceptable to all the stakeholders. A major problem with the Draft Environmental Impact Assessment Notification 2020 is that it weakens and dilutes the role of public consultation process in the environment decision making process. Especially, with India being a thriving democracy, undermining public participation is equivalent to undermining the very spirit of democracy and our constitution.

The Draft EIA Notification proposes to expand the list of projects that are exempt from this public consultation process while seeking environmental clearance. By doing so, it places several important projects beyond the purview of public engagement. These include modernisation of irrigation projects, all building, construction and area development projects, inland waterways, expansion or widening of national highways, all linear projects like pipelines in border areas and all offshore projects located beyond the 12 nautical miles.

It is important to note here that “Border Area” is defined as any “area falling within 100 kilometres aerial distance from the Line of Actual Control with bordering countries of India”. This will end up covering most of Northeast India, which is a repository of the country’s richest biodiversity.

The 2006 EIA Notification had already exempted projects of national defence or security or involving other strategic considerations from the public consultation process. The 2020 Draft EIA Notification puts forward an unwarranted proposal, in addition to the exemption from public consultation process, to remove all information related to such projects from the public domain.

The exclusion of all category ‘A’ and ‘B1’ projects proposing new developments or expansions or modernization with capacity increase less than 50% from public consultation is without any justifiable reason. This in effect implies that the public cannot express any material concerns for any increase in capacity below 50% and a material concern will arise only post an increase in capacity after 50%. Moreover, since there is no time bar between moving two subsequent applications, a development increase of more than 50% could be brought about without public consultations by offering two different proposals.

The classification of projects into ‘B2’ is arbitrary as it is based in the fallacious reasoning that a project having a lower threshold will not lead to a material concern. Such classifications allow for certain crucial projects to completely subvert public scrutiny.

Water is of fundamental importance to people’s lives as well as national development. Improperly organized and executed irrigation projects can lead to decline in water tables, increase in salinity, water logging and reduced water flow. The lack of public consultations in this regard will adversely affect not just the farmers of this country but also the general public.

Industries involved in the manufacturing and production of paints, varnishes, pigments, produce various emissions which can have far reaching consequences with respect to environmental degradation and health of the people living in the vicinity of such industries. Hence, exempting these industries from public consultations serves to deprive people of their opinions in a matter which is so crucially linked to their health and lives.

The draft EIA- 2020 excludes any public consultation for projects relating to Pesticides (as per item 21 of the schedule). This provision seems to undermine the unfortunate Bhopal Gas Tragedy which was caused due to a gas leak at the Union Carbide India Limited (UCIL), a pesticide plant in Bhopal. It seems deeply troubling to us that an amendment to deny public consultations with regard to such an important industry has been proposed, especially given the unsettling past we, as a country, have with this industry. Please note that our list of industries is only indicative and not exhaustive. We demand reconsideration of the industries which you deem do not require public consultations.

Many projects and industries which have been exempted from public consultations are of incredible importance to our nation as a whole and must be brought within the realm of public discussions, keeping with the democratic nature of our country. By arbitrarily exempting from the EIA process such a large range of activities, the draft notification goes against the concept of precautionary principle, is ultra vires of its Parent Act (Environmental Protection Act, 1986), and is against the fundamental right to life guaranteed under Article 21 of the Indian Constitution.

Further, the draft proposes a reduction in the public commenting period, i.e., time period available to the public to submit their responses during a public hearing for any application seeking environmental clearance, from 30 days to 20 days. It additionally requires that the public hearing process be completed in 40 days, compared to 45 days under the 2006 notification. These proposals are more investor friendly as it makes their process of completing the formalities of EIA easier. The issue is that if environmental stakeholders are not given adequate time to prepare their views, comments, suggestions and consequently make adequate representations, then such public hearings would not be meaningful. Unmeaningful public hearing would mean a lack of transparency, accountability and credibility in the whole EIA process.

The 2020 Draft EIA Notification should focus on strengthening an already inefficient public consultation process rather than recommending proposals that further weaken this process. It is important to know that the original time period stipulated in the 2006 notification has also been found to be inadequate due to the scientific and technical information present in the EIA documents oftentimes requiring legal understanding of certain issues. Environmental stakeholders and affected parties need to be provided with adequate time to understand, communicate, and discuss this information before furnishing an adequate and informed response. We demand a more inclusive and democratic process to ensure effective participation on the part of the concerned stakeholders. We therefore suggest that at least a period of 60 days should be provided for the public to give their responses, given that it takes 30 days to receive RTI responses, and often scientific and legal understanding is required to counter and evaluate certain issues.

Additionally, there is extensive documentation of the public consultation process being riddled with problems. For instance, it is a well-established fact that the public hearings conducted across India have been disreputable for providing incomplete EIA reports, discussing irrelevant details of the project, having discrepancies in the information provided etc. Consequently, the entire intention to involve citizens in environmental decision making is undermined and made irrelevant. TFS strongly objects to the draft notification’s lack of engagement with addressing these pertinent deficiencies in the public consultation process.

Further reiterating that the fundamental right to life includes the right to access environmental information and participate in environmental decision-making. It is also submitted that any additional studies or documents submitted by the project proponent post the public consultation stage should also be made available for public consultation. If this information is not made available to the public, then the EIA process would lack credibility, transparency and accountability as it would prevent stakeholders from knowing the complete information about the project, thereby violating fundamental rights of the affected people.

Finally, in addition to the previous point, we would also like to request that the suggestions, opinions and advice of ecologists, activists and academicians, who are trained and employed in our governments and institutions of public importance, should be considered with grave seriousness. Questions and cautions raised by them should be respected and be dealt with objectively. We demand that the experts of this field should be consulted, and their objections should be answered in the public domain with effective replies, instead of a blatant silencing of dissent.

3.POST CLEARANCE COMPLIANCE AND MONITORING:

Under the 2006 EIA notification, industries had to submit half-yearly self-compliance reports. They were mandated to follow necessary environmental and social safeguards that were identified during the EIA process and public hearings. However, these mechanisms of compliance and monitoring have been one of the neglected aspects of our environmental regulation and continued to fail as we have evidence of rampant non-compliance of EC conditions across various industrial and infrastructural projects. This situation is worsened by a lack of clear guidelines and irregularity of the regulatory agencies. The Comptroller Auditor General (CAG), through his performance audit, found out that there was a shortfall of 43 to 78 percent in the submission of half-year compliance reports. Further, it was observed that most of them did not submit the compliance reports regularly, and there were delays ranging from 1-48 months for submission. The 2020 draft notification does not address these issues aimed at strengthening compliance rather it reduces the timeframe from six months to once a year to report compliance with clearance conditions, which provides an opportunity for the projects to delay compliance.

4.ADDITIONAL COMMENTS:

The COVID-19 pandemic has a direct link with the proposed amendments too. Firstly, the environmental impacts due to bio-medical waste need to be considered and efficient policies for their disposal need to be enacted. Secondly, we object to the timing at which these amendments have been proposed. Our country is in the grip of a pandemic and people have been deprived of their livelihoods. We are facing a health emergency, and, in such circumstances, we do not believe that such important policy changes should be proposed without actual public discussions. Given the conditions (a very important factor being the lack of internet facilities) which have gripped our country presently, the public is not in a position to actively debate and discuss policy decisions.

To conclude, we would like to reiterate our disapproval of the proposed amendments. The amendments proposed would result in environmental degradation fuelled by unsustainable “development. We recommend that the MOEFCC withdraw its problematic and weakening proposals and rather address the existing shortcomings in the public consultation process with an aim to make it more inclusive, participative and democratic. It is further submitted that MOEFCC should recognise that the purpose behind preparing EIAs should be a rigorous assessment of the environmental impact of a proposed project rather than shifting the focus on how to secure an Environmental Clearance.

Warm Regards,

The Final Stand