Many of the Multilateral Environmental Agreements to which India is a party contain a requirement to have a prior EIA in situations having a significant threat to the environment.
The Delhi high court has extended the period of public consultation on the draft of the Environment Impact Assessment (EIA) notification 2020, released by the Ministry of Environment, Forests and Climate Change, until August 11.
The extension reiterates the established principles of public participation in environmental governance. The EIA Notification 2020, which will supersede 2006 notification, has come under severe criticism from environmentalists who have demanded its early withdrawal. Indeed, the draft notification’s regression and dilution of environmental criteria conflict with the established principles of international law.
The new notification exempts a list of projects from prior requirements, notably renewable energy projects, solar thermal power projects, solar parks, and coal and non-coal mineral prospecting. The rationale seems to be the notion that solar energy projects reduce our dependence on fossil fuels and are better for the climate. However, such simple assumptions overlook the manifold environmental and social concerns, like requirement of large land area, diversion of agricultural land and changes to drainage patterns brought on by the construction and operation of solar parks.
The undertaking of an EIA is a minimum environment and social safeguard, at the project level of the proposed activity, and is intended to facilitate systematic consideration of environmental issues as part of development decision-making. Whether an activity requires an EIA or not is essentially a policy decision – but it’s essential to apply the same criteria to policies, plans and programmes as well.
For example, the National Environmental Policy Act (NEPA) in the US provides for ‘categorical exclusion’ (CATEXs) categories that don’t individually or cumulatively have a significant effect on the environment. However, the government won’t issue a CATEX in case of extraordinary circumstances, including even public controversy.
The EIA Notification 2020, including its listed exemptions, don’t disclose the criteria for exemption and operate against the basic tenets of administrative law, which requires exceptions to be culled out based on sound reasons. And while exempting the solar projects from the EIA’s ambit, the government has overlooked the best institutional practices as well as created ground for possible conflicts between projects.
The World Bank, which has been funding solar projects in India, insists on an effective EIA as a prerequisite. The Rewa Solar Park in Madhya Pradesh, which Prime Minister Modi inaugurated on July 10, is funded by the World Bank and was commissioned after a comprehensive EIA. The EIA report revealed a significant impact on the drainage system, and recommended measures to mitigate the problem. The World Bank and other multilateral development banks are expected to ask for an EIA even under the terms of the new notification (if it is implemented).
This is to illustrate that the environment ministry’s decision to exempt solar projects – and others on the list – in the new notification are out of sync with the best international practices, and could even discourage investment. In contrast, private or similar government-assisted projects may be commissioned without an EIA with fewer consequences.
Numerous provisions of the new EIA Notification also endanger the basic tenets of public participation. The period for public consultation has been reduced from 30 days to 20 days. Considering the socio-political context of the vulnerable population typically affected by ‘development’ projects, this reduction could literally exclude some groups of people from consultation.
The reduction period is also against directions in 2000 of the Gujarat high court in Centre for Social Justice v. Union of India, when it insisted on a minimum of 30 days for public hearing. The notification also exempts projects with “strategic considerations as determined by the government” from the stricter purview of EIA and public hearings. Here, the blanket authority provided to the government to categorise projects as strategic and elimination of public hearings undermines the very fabric of India’s international commitment under numerous multilateral agreements.
The draft notification also exempts massive construction projects under category B2 from the need to conduct public consultations before seeking environmental clearance. As a result, the controversial Central Vista project will not have to undergo public scrutiny. The absence of effective environmental scrutiny of an area that, according to the Delhi Pollution Control Committee, accounts for 30% of air pollution is beyond legal justification.
Nonconformity to international obligations
The dilution of environmental standards in the EIA needs to be evaluated in the background of the robust environmental principles operating at the national and international levels. The country is a party to the Rio declaration adopted by the United Nations Conference on Environment and Development (UNCED) in 1992, which enunciated a catalogue of environmental principles including sustainable development, precautionary principle, and environmental impact assessment.
Many of the MEAs to which India is a party, including the Convention on Biological Diversity (CBD) and United Nations Framework on Climate Change (UNFCCC), contains a requirement to have a prior EIA in situations having a significant threat to the environment. Following the Rio Conference 1992, EIA became part of the formalised legal framework in India in 1994.
The principle of sustainable development and precautionary principle became part of India’s domestic legal framework when in Vellore Citizens Welfare Forum v. Union of India, the Supreme Court of India declared those principles part of the law of the land. With the enactment of the National Green Tribunal Act in 2010, the principle of sustainable development, precautionary principle, and polluter pays principle became an explicit part of India’s legislative framework.
However, given the indeterminacy associated with the threshold and contours of both these principles, EIA emerges as a prominent and significant regulatory mechanism for the environmental policy as a tool for informed decision-making towards sustainable development and application of the precautionary principle. EIA’s role as a tool in the achievement of sustainable development has been endorsed by the United Nations Environment Programme (UNEP) in its guidelines of EIA.
EIA’s significance stems from the fact that the achievement of sustainable development is a legal obligation of conduct under environmental law, EIA, and the public consultation are the possible requirements for the fulfilment of this duty. The point is that it is difficult to justify a project based on sustainable development without recourse to the conduct of an effective EIA.
Thus, any dilution of the EIA and public consultation is a move away from the legal obligation of conduct entrenched in the principle of sustainable development. In spite of the focus on climate change at the international and domestic level, the EIA notification has not incorporated specific reference to climate resilience, impact or vulnerability from the scope of EIA study. This contradicts the provisions of UNFCCC and Paris Agreement.
Additionally, meaningful opportunities for public involvement constitutes a pivotal determinant of EIA outcome and is regarded as a procedural human right recognised under Principle 10 of the Rio Declaration. Over the past decades, state practice on public participation has undergone rapid transformation and is declared as a fundamental prerequisite for the achievement of sustainable development. Initially adopted through soft law declarations such as Agenda 21 and the Rio Declaration, the idea found specific expression in a wide range of environmental conventions.
The public participation and modalities in EIA have been elaborated at the International level in the Convention on Environmental Impact Assessment in a Transboundary Context (“Espoo Convention”). The procedure has been highlighted as an exemplary standard for the process to be followed when conducting an EIA by Justice Dalbeer Bhandari in Costa Rica v Nicaragua.
It should also be emphasised that the rights of the members of the public in environmental matters has been given a new fillip by the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention). Though the ESPOO convention has been negotiated in the context of transboundary context, the principle guiding the convention is relevant in the domestic context of the operation of development projects.
India’s experiments with public participation in EIA have a chequered history. Instances of flagrant violations include cases where the affected communities have been physically prevented from participating in the hearings to inadequate provision of notice of the meeting and lack of access to essential information to the public. The judiciary, in a catena of cases, has stressed the significance and has specified the key modalities of public participation in EIA.
In the case of Adivasi Majdoor Kisan Ekta Sanghatan v Union of India, the court declared the faulty public hearing to be a nullity in the eye of law. It is worth noting that, in the wake of the controversy associated with the introduction of genetically modified foods, the risk assessment and public consultation were undertaken with the then environmental minister, Jayaram Ramesh overseeing the entire process. Effective public consultation can be instrumental in upholding the legitimate concerns of the local communities and stakeholders affected by the project.
It should be stressed that for affected communities, the EIA remains the only viable mechanism to ensure the disclosure of the details of the project, understand the impacts, and to ensure that projects adhere to legal safeguards. The significance of public participation has been elevated by the judiciary in Orissa Mining Corporation Ltd. v. MOEF (Vedanta) when it ruled that the gram sabha would have to be considered before the MOEF grants environmental approvals for developmental projects involving rights of individuals and communities in scheduled areas.
Considering the two decades of stupendous judicial interventions in the field of environmental impact assessment to pronounce on the critical process of EIA in consonance with the international developments, the EIA notification of 2020 is a regressive step back.
Stellina Jolly is a senior assistant professor at the faculty of legal studies, South Asian University, New Delhi. She is the author of the book Climate Refugees in South Asia: Protection Under International Legal Standards and State Practices in South Asia.