India Has a New Environmental Policy, But Whom Does It Really Benefit?
Updated: Oct 8, 2020
The United Nations Environment Programme (UNEP) defines Environmental Impact Assessment (EIA) as a policy tool used to ‘identify the environmental, social and economic impacts of a project prior to decision-making’. It is aimed at foresighting negative (and avoidable) environmental impacts of the design and planning of different infrastructural projects, in their initial stages, finding ways and creating roadmaps to reduce these adverse impacts, encouraging the idea to construct these projects to align their vision with the optimisation of local environment, and lastly, lay down a framework for the delineation of predictions and options available in the context of said projects -- for decision makers and stakeholders. The Environment Impact Assessment procedure in India has been statutorily backed by the Environment Protection Act, 1986 which contains various provisions on EIA methodology and process.
In the EIA notification of 2006, unlike the EIA Notification of 1994, the new legislation had put the onus of clearing projects on the state government depending on the size and capacity of the project. The Environment Impact Assessment Notification of 2006 had demarcated the environmental clearance projects by categorizing the developmental projects in two categories -- Category A (national level appraisal) and Category B (state level appraisal). Category A projects were to be appraised at national level by the Impact Assessment Agency (IAA) and the Expert Appraisal Committee (EAC) and Category B projects were apprised at state level. State Level Environment Impact Assessment Authority (SEIAA) and State Level Expert Appraisal Committee (SEAC) were constituted to provide clearance to the Category B process.
On March 12th, this year, the Ministry of Environment, Forest and Climate Change (MoEF&CC) released a draft notification to replace the EIA notification of 2006. If approved, the legislation is anticipated to ease the process of obtaining environmental clearances for businesses since the public consultation aspect or executive approval for projects will no longer be mandatory for certain projects (such as those based on modernisation of irrigation and widening of national highways).
More importantly, the 2020 draft also allows for some actions that are currently categorised as violations in the 2006 draft -- starting construction without a valid clearance, being one such example. Furthermore, the new draft has reduced the frequency of compliance reports that project owners and businesses are required to submit, from once every six months to once every year.
Environmental lawyer Ritwick Dutta explains,
“Instead of focusing on ensuring the protection of the environment, the draft EIA 2020 undermines the orders of the National Green Tribunal which had ruled against post-facto approvals. The purpose of this notification is to legitimise illegalities done by industries. It seems to be emphasizing that an industrial project that has violated environmental rules will have a right to seek approval for it as long as that project is permissible in the area. It is a mockery of the law.”
Further, Vikrant Tongad, a conservationist based out of the state of Uttar Pradesh notes,
“The backbone of environment clearance rules is monitoring the conditions on which projects are cleared and ensuring compliance. But here the ministry is outrightly trusting the industries whose track record doesn’t inspire much confidence. This proposed EIA notification has no focus on ensuring compliance and monitoring of projects while it heavily relies on self-certification by the industry,”
So, the questions that arise with the backdrop of this controversial policy amendment draft are -- whose interests does the draft secure? Seemingly a dilution of the monitoring and checks-and-balances system for projects, what gears does the latest draft have shifting, in the back end? And are there any inherent benefits that can be accrued by the draft policy?
For the sole motive of making compliance with the assessment easier, the new draft makes the process of issuing environmental clearances somewhat more transparent and relatively expedient by calling for the implementation of an online system for this purpose. In order to standardize the process of environmental clearance and make it more streamlined, the overall timeline involved in the process has also been addressed.
While the provision of public consultation for projects in the monitoring phase of the assessment has been done away with by the introduction of the idea of self-certification by the businesses, an attempt at strengthening the new monitoring mechanism has been made by the imposition of a late fees in case of failure to submit yearly compliance reports by the project proponent.
A positive that has emerged in the new draft is the ‘clear demarcation of roles and responsibilities and inter-co-ordination among the authorities’ while dealing with Category A and Category B projects. The demarcation between the two had been more ambiguous in the 2006 version of the draft, which has now been delineated well by further sub categorising the Category B projects into B1 and B2 types, to make the intricacies of the requirements from project proponents easier to navigate. According to the Minister for Environment, Forests, and Climate Change (MoEFCC), the exemptions for foregoing a stage in the process, has only been granted to those businesses in B2 type businesses that are environmentally conscious or are MSMEs.
The draft has also made provisions of notifying the next steps in case of violations, if discerned in the self-assessment undertaken by the business or project. The project proponent in this case is: required to prepare and implement the Environmental Management Plan (EMP), comprising of remediation plan and natural and community resource augmentation plan corresponding to the 1.5 times and 2 times the ecological damage assessed and economic benefit derived due to violation in case of the suo moto applications or Government reported cases respectively. And if there is a pollution load, a polluters’ fee separate from the violation penalty would also be due.
They are also; required to submit a bank guarantee valid for five years equivalent to the amount of remediation plan and Natural and Community Resource Augmentation Plan with the State Pollution Control Board (SPCB) or the Union Territory Pollution Control Territory (UTPCC), as the case may be, and the bank guarantee will be released after successful implementation of the action plan. Lastly, an appeal can also be made to the National Green Tribunal against the prior Environmental Clearance, if a case calls for it.
In view of these reforms, exempting the projects that fall under Category B2 from the complete Environment Impact Assessment process, and directly calling for the EMP plans for them is bound to make the compliance process easier and development-friendly. However, two interventions are needed to make these processes water-tight -- brief intermediate reporting by the project proponent for the purpose of timely monitoring, and a more pin-pointed definition of accountability of state and central authorities when it comes to the assessment of the EMPs -- in order to avoid potential environmental hazards. Further, a stringent and uniform basis for decision-making also needs to be established, in the context of the expert appraisal committees which undertake the task of screening and monitoring project designs.
Many experts have also hailed the new draft as an opportunity for defaulters to become compliant, and said that it “is a welcome step to mainstream the defaulters while not encouraging them”. Moreover, the funds that will be accrued from the violation fees and penalties can be further put to use in other state-level or central projects -- such as those relating to conservation education, social forestry, or maintenance and upkeep of plantations.
In a bid to formalise and streamline erstwhile ad hoc processes in the impact assessment process, the new draft does toe a very fine line between the tradeoff of environment with accelerated growth. While India has steadily upped its rank (at 63 in 2019 from 142 in 2014) in the Ease of Doing Business Rankings, the environment has been facing the brunt of this unsustainable development, to some extent.
Keeping in mind the recent oil spills and industrial accidents, the issue of ensuring the compliance to projects with sustainable and safe standards is the need of the hour. It remains to be seen whether the 1.8 million plus public views and recommendations to the draft policy will be taken into consideration, whether the scales will tip unfavourably, or whether the policy will get the balance between economics and environment right.
Views expressed are solely those of the author.
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About the Author
Bhavya Pandey is a student of Economics at Daulat Ram College, University of Delhi. A voracious reader and declamatory writer, she has grown up exploring and opining on a plethora of subjects ranging from environment to economics. She is a trained Indian classical dancer in Kuchipudi, under the tutelage of Padmabhushan Gurus Raja Radha Reddy and has been performing for more than a decade. Bhavya enjoys penning down poetry besides affixing a monocle and combing library bookshelves in search of classics in her free time. She is also currently serving as the Joint Secretary for the Women’s Development Centre of Daulat Ram College and editing for three collegiate level magazines. Bhavya can have endless conversations about the internet and food.