Blog Image

EIA Notification 2020 : A Bogus Environmental Draft

EIA Notification 2020 : A Bogus Environmental Draft 
- Ujeer Yadav & Aviral Chandraa

Six of the ten World’s most polluted cities[1] are in India and the capital of India, New Delhi has the worst air pollution in the world. As per the World Health Organization (WHO) report in 2012, 1.5 million people in India died due to pollution. This shows the seriousness of Indian environmental health condition and the need to take strict preventive measures in this regard. The Environment Impact Assessment (EIA) draft 2020 was expected to strengthen the environment laws rather than weakening it. The new draft is more pro-industrial and ‘anti-environment’ instead of stabilizing between the two.

What is the EIA draft 2020?

The environmental laws in India were questioned in 1984 after the Bhopal Gas tragedy and an attempt was made to strengthen these laws in the form of Environment (Protection) Act, 1986. [2] Then in 1994, India issued its first EIA draft to inspect all the industrial development projects before setting up. The EIA process used to judge all the pros and cons of a proposed project and its impact on the environment. In 2006, these norms were revised again and now a third revision has been made in the form of EIA notification 2020.

The Indian Government on 11th April 2020 published the Environment Impact Assessment (EIA) notification by the power conferred in section 3(1) and 3(2) (v) of the Environment (Protection) Act, 1986.

Problematic features in EIA notification 2020:

1.The new draft legitimizes the existing projects without being cleared by the environmental process, which will make the environment conditions more deplorable in the country. Ex post facto clearance is based on ‘Pollute and Pay’ theory. Clause 26 of the 2020 EIA draft would give an advantage to nearly 40 different types of industrial plants. Moreover, Vizag Gas Leak was one of the recent Environmental disasters that happened in the country, a bad example of Ex post facto Clearance. However, in the case of Vellore Citizens Welfare Forum v Union of India & Ors,[3] the Supreme Court nullified the ex post facto environment clearances. After that, in Common Cause v. Union of India,[4] the Supreme Court again refused it. In 2016 The National Green Tribunal (NGT) also held that “Ex Post Facto Clearance is illegal, void and Inoperative”. Furthermore, in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati [5] and others (2020), the Apex court held that Ex Post Facto Environment Clearance is unsustainable in law. The Supreme Court at every stage shunned the ex post facto contention, but the Government has revived it. The ruling in the above cases gave a conclusion that prior environment clearance decimates the forests and it utterly disregards environmental jurisprudence. If it is approved, the country shall have to pay a heavy cost of it in the future.

2.Another feature that is problematic is Clause 22 of the draft which states about the complainant. Interestingly, only the violator himself can complain against himself. It is a bogus environmental law as the clause eliminates the indulgence of citizens in decision making.

3.Another bogus issue is clause 13 which deals with the monitoring process. It is a key feature to check the activities of the projects at some intervals. The 2006 EIA draft has set the monitoring frequency twice a year. The new 2020 draft was expected to consolidate the monitoring process instead it weakens by altering frequency to once a year.

4.The EIA notification 2006 gave importance to a public hearing and had set a time period of 30 days for public consultation. Clause 14 of the 2020 draft contracts the time period from 30 days to 20 days for the reaction of the public on the proposed projects. The projects mostly affect the tribal people or forest nomads, who are not aware of the laws and are not usually consulted. Thus, the introduction of such a clause will make it more difficult for public participation. In the Samarth trust case, the Delhi High Court held that the EIA is a part of participatory justice in which the community is a jury. The Supreme Court of India has also reiterated in many judgments that the public consultation period must be adequate otherwise it is a violation of natural justice. Moreover, India is a member of the Rio declaration. The 2020 Draft also undermines Principle 10 of the Rio Declaration [6] which states the significance of public conviction regarding industrial development that would harm the local environment.

5.Further, to provide fast clearance to industries, the 2020 EIA draft has excluded many projects from public consultation. The environmentalists have highly criticized this clause as it exempts the citizens from interference in projects such as an expansion of highways, building constructions in border areas, irrigational projects, etc.

6.Furthermore, the area within the 100 kms of Actual Line of Control would be designated as ‘strategic’ as per the new draft (this includes most part of the North East, which is very sensitive and rich environmental reserves of India), which will be exempted from public consultation and questioning. The 2020 Draft has permitted the red and orange toxic industries to function within 5 km of the safe areas. Many environmentalist activists depicted this as a trouble to the natural habitat and water sources of the country.

The Way Ahead

The Ministry of Earth Sciences of India published the first ‘Assessment of Climate Change [7] over Indian Region’ report concerning environmental problems in India. The report advised to take preventive measures to be adopted soon regarding the deplorable condition of the environment of India. However, the EIA draft 2020 has undermined all these reports and tried to harm the importance of a sustainable environment.

The Indian Government has advertised the policy of ‘Pollute and Pay’ by this notification. It might attract the foreign investment but at the cost of a polluted environment. It might benefit thousands but will pose a hazard for millions of people and wildlife.

Also the notification was published only in English and Hindi language making it difficult for natives (nearly 50%) [8] to understand the amendment in the environmental law of India. Therefore, a writ petition was filed in Delhi High Court against this notification as Vikrant Tongad v. Union of India [9] to give relaxation in filing the objections against it due to Covid-19 crisis. The Delhi High Court ordered the notification at least in the languages mentioned in Eighth Schedule of the Constitution of India. The suggestions and objections would be sent at eia2020-moefcc@gov.in and it is our duty as a citizen to voice against this bogus environmental draft.

References :- 
 
1. ‘6 of the world’s 10 most polluted cities are in India’ (2020) 5(5) World Economic Forum <https://www.weforum.org/agenda/2020/03/6-of-the-world-s-10-most-polluted-cities-are-in-india/> accessed on 17 August 2020
 2. ‘THE ENVIRONMENT (PROTECTION) ACT, 1986’ (1986) 23(5) Ministry of Law and Justice <http://legislative.gov.in/actsofparliamentfromtheyear/environment-protection-act-1986> accessed on 17 August 2020
 3. Vellore Citizens Welfare Forum v Union of India & Ors [1996] AIR  2715 (SC)
 4. Common Cause v. Union of India [2014] AIR 1556 (SC)
 5. Alembic Pharmaceuticals Ltd. v. Rohit Prajapati and others [2016] Civil Appeal No. 1526 (SC)
 6. ‘Rio Declaration on Environment and Development’ (2006) 13(11) Convention on Biological Diversity <https://www.cbd.int/doc/ref/rio-declaration.shtml> accessed on  17 August 2020
 7. Ministry of Earth Sciences (Government of India),’ Assessment of Climate Change over Indian Region’ 2020 1(6) <https://reliefweb.int/sites/reliefweb.int/files/resources/Assessment%20of%20climate%20change%20over%20the%20Indian%20region%20-%20A%20report%20of%20the%20Ministry%20of%20Earth%20Sciences%20(MoES)%2C%20Government%20of%20India.pdf> accessed on 17 August 2020
 8. ‘English or Hinglish - which will India choose?’ (2012) 29(11) BBC < https://www.bbc.com/news/magazine-20500312#:~:text=India%20now%20claims%20to%20be,quadruple%20in%20the%20next%20decade.> accessed on 17 August 2020
 9. Vikrant Tongad vs. Union of India, [2020] (W.P.(C) 3747/2020 & CM APPL.13426/2020) (SC)