This Paper “CONTRARILY EIA ADAPTS TO INDUSTRIES” is written by Tannu Shree and Subhangi Kesarwani, Political Science students from Lady Shri Ram College for Women, University of Delhi. Through the course of this paper, Draft EIA 2020 has been criticized for its capitalistic character and market orientation that favours big business.
The environmental crisis is a global phenomenon, and the foremost concern of many developed as well as developing nations is to tackle this and therefore balance development and the environment. The first step in this regard was adopted by the United States in the 1970 National Environmental Policy Act. Since then, some countries, including India, have incorporated environmental impact assessments into their plans. But the recent phenomenon that is being witnessed is that the EIA guidelines are undergoing a complete transformation in order to give way to development prospects. Through the course of this paper, Draft EIA 2020 has been criticized for its capitalistic character and market orientation that favors big business. The paper seeks to explain how the industrial units now receive clearances very easily because the mandates now stand relaxed (post-facto clearances, self-reporting provisions, lessening of compliances and various sorts of exemptions, rare chances of rejection, meager penalty) and the element of public participation has been sidelined. One major point that this paper highlights are that this notification not only negatively modifies the existing environmental act but also contradicts in some way or the other related acts that exist. (FRA 2006, Air and Water Pollution Control Acts). Furthermore, despite the fact that this bill was not passed and hence was dropped, most of the changes that were mentioned in the notification have anyway materialized because the government instead of amending laws via parliament has now resorted to executive action like office memorandums, circulars, etc. This nexus that has built up between the government and the corporate sector has resulted in a spate of environmental dilutions in the last decade.
KEYWORDS: Environment Impact Assessment (EIA), Exemptions, Development, Public Participation, Reforms
Environmental governance has always been a contentious issue and remains a hot topic for political debate. The uncontrolled growth process is a recipe for ecological suicide, this is a lesson we must have learned from the experiences of the west. In contrast, all the industrial countries around the world have realized that development and industrial projects must be subjected to stringent measures and regulations with tightened environmental standards. The simple reason is that corporate houses and project beneficiaries on their own do not show any environmental or social responsibility. In India, the incumbent government is moving swiftly to roll back the environmental safeguards that were painstakingly built up over the 1980s.
In this paper, we will discuss the undermined environmental governance in India, which has been made incapable of addressing the complexities of environmental destruction happening in the name of development. After the new economic reforms of 1991, the trend of deregulation has also brought severe opposition against the environmental laws of the country, which are seen by industrialists, development economists, and politicians as a “remnant of license raj”. The ‘reforms’ to environmental laws is a euphemism to ‘weaken’ the regulatory measures. In the course of this paper, we will trace the reforms brought to Environment Impact Assessment made statutory under the Environmental Protection Act 1986.
The hypothesis behind the paper is that the nexus that has built up between the State and the corporate sector on the matter of prioritizing the economy over ecology has subdued democracy in India. The paper caters to the following questions: How do reforms to the existing EIA Act contradict the values and principles that form the basis of the Forest Rights Act 2006, Air (Prevention and Control of Pollution) Act, 1981, and Water (Prevention and Control of Pollution) Act, 1974? Is the fundamental principle of “ease of doing business” really proving to be progressive for the economy? Whether the simplified procedures take over the mandatory compliances? Is there any room for public participation in decision-making under the existing EIA regime? How are the simpler regulations for business hampering India’s Environmental Democracy?
This paper is our attempt at critically analyzing the reforms that have come up in the EIA provisions that favor industries over the environment. It identifies the centrality of EIA to grant environmental clearances in India. It describes and analyses the repercussions of its changing framework due to the various amendments that it has gone through since its inception in 1994. Our main point of discussion will be the recent draft EIA notification 2020 and the huge dilutions proposed by it. This latest trend of environmental deregulation would make ecological collapse and social disruption an inevitable future. It argues for a broad-based EIA that mandates multi-staged public consultation right from screening to appraisals, and compliance with clearance conditions, and promotes only environmentally appropriate technologies with suitable post-clearance monitoring.
ON THE HORIZON
EIAs are crucial tools to assess the ecological feasibility and desirability of projects and processes and can be significant in taking a country towards the goal of sustainability. The Indian experience of EIA began with the planning commission in 1976-77 when the department of science and technology was asked to examine the river valley projects for their impacts on the environment. However, the official notification came after a delay of decades that made environment clearances legally mandatory for development projects. The Environment Impact Assessment 1994 notification promulgated under the Environmental (Protection) Act 1986 was in itself weak and subject to various kinds of implementation failures.
Nevertheless, it was an instrument for environmental sensitivity and was able to bring safeguards in place to regulate the development projects regarding their adverse social and environmental impacts. It was, however, considered a major cause of delay in projects, due to which the central government was mounted with immense pressures from industrialist and politician circles. This culminated in a complete “re-engineering” of the notification in 2006. In this process, the procedures for environmental clearances were diluted making it easier for the industries to obtain permission for the projects, and the democratic participation in decision-making got weakened. Compulsory public hearing provisions were also made flexible, disallowing interested third parties, who are not directly affected to participate, would have access only to ‘draft’ EIAs and local authorities could even dispense with hearings. It also put the onus of clearances on state governments according to the size/capacity of the project. The notification scraped tourism off the list of sectors that require environmental clearance. Since 2006, the scale and pace at which industrial and development projects are being given clearance now make it impossible to impose any meaningful regulations. For instance: as per the updated website of environmental clearance, there have been more than 3800 clearances given since 2019. 
Over a hundred CSOs have pointed out to the ministry how these legislations have weakened the social and environmental governance in the country. The government has disprivileged the environment at the policy level by prioritizing development as a right (not a natural environment) and laying down emphasis on market instruments to safeguard the environment. This is a fundamental flaw brought in with the National Environment Policy in 2006. There has been a marked decline in openness to civil society participation in environmental governance. For instance, the Expert Appraisal Committee (EAC) for the river valley and hydroelectric project of MOEF did not take cognizance of representations from civil society groups, saying that they have an anti-development attitude. In 2009, Justice Muralidhar observed in Utkarsh Mandal v. Union of India (2009): “We do not see how more than five applications for EIA clearance can be taken up for consideration at a single meeting of the EAC.” But the Government of India hasn’t taken this observation seriously. (Dutta 2020)
Furthermore, since 2014, the Ministry of Trade and Commerce has been releasing what it refers to as Business Reform Action Plans to encourage ease of doing business. Under directives from the Centre, state pollution control boards exempted 146 of 206 kinds of polluting enterprises from routine inspections between early 2015 and late 2017. (Lopes 2022) The compliance status of industrial units in these areas can now be self-certified, or they can seek “third-party certification.”
According to the Water and Air Acts, SPCBs give permission to businesses that are likely to dump garbage into waterways or want to establish operations in regions where air quality is being monitored. Units only receive approval if they meet a number of environmental protection requirements, including those related to emission stack height, wastewater/emissions quality, waste outlet location, rate of discharge, and others. Up to the first half of 2016, SPCBs conducted routine inspections in the majority of states to ensure that all allowed industries were in compliance with these requirements (Garg 2020). Depending on whether these inspections are classified as “red,” “orange,” or “green,” the frequency of the inspections will change. Medium-risk or “orange” businesses would have longer intervals of inspection while highly polluting “red” industries would receive more frequent inspections.
For consent renewal and compliance monitoring, the Centre adopted the idea of third-party inspections and self-certification in 2014. The Center revised the classification of industries in 2016 and reclassified 84 industry types into less severe categories. After that, in 2017, the Center suggested that orange category sectors be permitted to have audits by “third parties” and green category industries be completely excluded from inspections. In this way, surveillance protocols have been relaxed not only for less severe industrial activities but also for 84 other types of industries. The adoption of these changes by states means that in 146 industry categories, SPCBs could omit the inspections. In 83 sectors, special agencies can conduct inspections on behalf of the SPCB, and in 63 sectors, sectors can report their own emissions instead of SPCB visits. In 2017, the Department of the Environment’s Expert Review Committee waived public hearings for coal mining projects that were being ramped up to 40% capacity. In 2015, the ministry extended the validity of the environmental permit from 5 years to 7 years. (Narayan 2022)
The draft EIA, 2020 was therefore formulated with the aim of incorporating the 55 amendments that have been made to date, as well as the 230 office memorandums that have been issued since 2006 (Ananthakrishnan 2020). As soon as the draft bill came, it sparked protests all throughout the country because it was being witnessed that the changes that were being proposed were completely pro-corporate sector enterprises, relieving them of the onus to go with ecologically sustainable economic development. The notification as it says was supposed to be pro-ecology but instead the provisions it mentioned were completely in favour of hastening development and attracting business players to invest in the economy by going easy on the mandates and compliances required to set up an industry or construct an establishment. The government in a way was making it easier on part of industries to avoid environmental accountability. The notification attempted to dilute the environmental safeguards and widen the escape route for the defaulters that evade environmental clearance (Dinesh 2021)
Looking at the loopholes that the draft carries with itself, the very first negative aspect is lessening the scope of public participation because of the reduction in the time limit for granting EC as according to rule 17 of the 2020 EIA draft, the final application must be submitted within 90 days of whether or not the environmental clearance or environmental permission should be granted. It is important to note that there has been a fifteen-day reduction from the previous EIA notification. Before, there was a time limit of 105 days starting from the date the final application was submitted. (Jamir and Parrikar 2021) This would facilitate accelerating the procedure hence reducing the overall time for raising objections. Rights of Tribal dwellers are taken away because the time period available for public consultation has been reduced to a maximum of 40 days and only 20 days are now provided according to rule 3.1 for submitting your application of response which was 30 days prior to the proposal of the draft bill. On the other hand, Rule 20(4) of the draft requires that the annual compliance report be submitted each year, from the date of the previous EC, until the project exists, to the relevant regulatory body. While under the current framework, compliance reports must be submitted every six months. Rule 5(7) of the draft provides that when the central government declares any project as strategic, information related to the project must be hidden from the public domain and excluded from public consultation (Sirur 2022). Therefore, in this respect, the government should carry out the strategic project without affecting the public interest and should define an appropriate definition of the strategic project. Meanwhile, a new notice proposes to declare some areas as economically sensitive areas without a public hearing of the stakeholders, which is contrary to democratic ethics.
Another key provision in the draft 2020 is giving ‘post-facto clearance’ where a project that has been functioning without environmental approval, can be regularised or allowed to apply for clearance. In the meanwhile, the project proponents will be the only ones responsible for creating the compliance report, thus there won’t be any oversight or review, which could result in false information being provided about the project. The negative effect of this can be gauged from the recent incident that took place in Assam on May 27, 2020, due to poor environmental compliance, Oil India Limited’s natural gas in the Tinsukia district east of Assam erupted and caught fire. This caused serious damage to livelihoods in the biodiversity area. On this, the State Pollution Commission, Assam, reported that the oil plant had been operating for more than 15 years without the prior consent of the council.
The other negative aspect of the bill is that the government is in a manner making it very easy for the violators and is providing clearances more easily because the ministries are rarely rejecting projects making EIA a mere formality. The liberality with which clearances are being given also gets clear with the post of Minister Dr. Harsh Vardhan, where he states that the current regime environmental clearance for setting up industrial units was granted only within 106 days as compared to 600 days taken by the previous government. (“Amendments to EIA rules” 2022) Adding to this, as per the analysis of DTE scholars of the projects initiated between July 2015 and August 2020, out of a total of 3100 projects submitted, only 3 percent were not recommended and these rejected ones too had a chance of coming back after providing a bit more of the required details/ information. To make the matter worse, industries that are polluting in nature and pose threat to human health like soda-ash, treatment plants, synthetics, acids, petroleum and petrochemical products, dyes, biomedical waste, paints, chemical fertilizers, pesticides and construction industries, be exempted from the public clearance has been proposed in the draft bill notification. Hydroelectric Power Plants have been given a leverage and chemical, pharmaceutical and cement plants, inland waterways and others will for that matter require only ‘perfunctory environmental scrutiny. ‘The Vidhi Legal Policy Center, an independent think-tank that conducts legal research, has found that of the 123 “management tools” used to administer the EPA, 39 – or in part three – are amendments to the law – of which 48% are related to providing relaxations(Service 2022).
PROGRESSIVE DEVELOPMENT OR A REGRESSIVE DEPARTURE!
Is EIA lending a supporting hand to progressive development or is it a “regressive departure” from a development that also looks forward to the sustenance of the environment?
The raised risk of irreversible environmental, health, and social consequences turns out to be one negative impact of, extending the period of environmental clearance from 30 years to a period of 50 years as was proposed in the notification bill. Power plants based on thermal energy upto 15 MW that operate on biomass and non-hazardous municipal solid waste using fuel such as coal, lignite, or petroleum products up to 15 percent and fish handling ports and harbours have also been exempted on the condition that the fuel mix is supposed to be eco-friendly. (Nandi 2022) Toll plazas that need more width in order to install toll collection booths to cater to a large number of vehicles and infrastructure projects such as roads below 100 km have also become exempt from EIAs. This comes with a huge environmental cost of dumping muck into reservoirs and wetlands. Also the highway projects that are important for defense and strategic purposes and which are 100 km from the Line of Control, among other locations are exempted from receiving an environmental clearance before construction.
A host of projects have been absolved from public scrutiny as the expansion activities can now be carried on in existing airports related to terminal building expansion without an actual increase in the airport’s existing area, expansion of runways, etc.Also by classifying a number of projects into A, B1, and B2, many projects have been granted indemnity. Furthermore, according to Clause 13, sub-clause 11 – Category B2 projects no longer require mandatory Environment Clearance (EC), as required by the Category A and B1 projects. The penalty provisions for the defaulters and the preparation of baseline data is also not upto the mark to be effective. MoEF&CC listed 36 ‘pollution-free’ industries, called ‘white industries’. These industries were exempt from the required Environmental Clearance (EC) to start operations. These industries, such as photovoltaic solar power, wind power, and small hydropower (less than 25 megawatts), are exempted from the EC under the Water (Pollution Prevention and Control) Act 1974 and the Air (Pollution Prevention and Control) Act, 1981 or Operating Authorization of the Environmental Protection Agency. The government has also undermined the process of permitting deforestation (FC) necessary to convert forest land to non-forest uses such as mining, and construction. Under new guidelines, the Ministry of Environment, Forests and Climate Change (MoEF&CC) have allowed project proponents to cut down trees once they have been granted principle or Tier I FC (Dey 2007). Previously, this was only allowed after final approval or the grant of a Stage II FC. Such provisions harm the rights of tribal and forest dwellers communities as was the case with the Dongria and Kondh communities of Niyamgiri hills when they objected to Vedanta’s Bauxite mine in the area.
Another major defect that exists is the loose definition of the term “satisfactory compliance” Adding the phrase “sufficient prior compliance” could have eliminated the possibility of rewarding repeat offenders because even the complaints raised by individuals living near such projects are not included in the proposed methodology for assessing past or current compliance. Considering all these factors, self-certification and third-party inspection result in poor environmental compliance.
Despite the fact that the government failed to get the draft bill passed, the operating 2006 act has undergone more than 30 revisions. Previously, this law was subject to 53 amendments and more than 200 decrees. In the past year, the 2006 EIA act has been revised 33 times, through 24 official orders and 9 amendments. Lawyer Lara Jesani complained that there has been a spate of dilutions in environmental rules in this decade and the government instead of amending laws by parliament is resorting to executive action via office memorandums, notifications and circulars to alter 85% of the rules. These law changes were made in a hasty and secretive manner inconsistent with the purpose demonstrated by the orderly review of public comments on the draft EIA 2020. Almost all of them belong to the same group of eight controversial aspects identified by CSIR-NEERI. (Kapoor 2020) All of this has downplayed India’s Coastal Protection Act, forest conservation rules and pollution control protocols in favour of big business, endangering ecosystems, health and livelihoods and removing India’s environmental protections under the guise of “economic recovery”.
AN ALTERNATE VISION
The cost of this environmental deregulation will be high. At this rate, we will lose our natural heritage irreversibly for infinity. The question that stands here is whether it is even worth taking this risk. Given, the argument that drives these reforms is that stringent ecological measures obstruct economic growth, surprisingly, no credible evidence supports that such deregulation leads to lasting macroeconomic gains for the country. Instead, there have been claims that “environmentalism” actually spurs economic growth. It is high time we recognize that the climate problem is a consequence of the absence of effective public policy that fundamentally recognizes the natural environment as a right along with development. Capitalism and environmental protection can be compatible with each other with rules in place. The valid concerns of business and industry cannot be addressed in this ruthless approach to reforming environmental policies. Long-term benefits lie in development projects that cater to the needs of both project proponents as well as stakeholders like forest dwellers.
The environment ministry, rather than reducing public consultation time, should focus on ensuring access to information and raising awareness of the public hearing and its impact on the entire EIA process. Furthermore, India has actively participated in the meetings of international organisations and has been a part of various agreements of the United Nations Framework Convention on Climate Change(UNFCCC), the Rio Summit in 1992, United Nations Conference on People, Environment, and Development in Stockholm in 1972 and the Paris Climate Agreement. After pledging allegiance to these international environmental instruments and now proposing to weaken its national EIA regime, the country is in a situation of cognitive dissonance with world leaders. Failure to comply with commitments in such international negotiations and agreements will undermine India’s position as a global leader in environmental governance and climate policy. Therefore, the government should not easily issue environmental permits to attract investment and industrial units. EIA needs to strike a balance between ease of doing business and maintaining environmental sustainability, because, despite the fact that India has steadily improved its ranking in the 2019 World Bank’s Ease of Doing Business Index, India’s ranking fell from 141 in 2016 to 168 out of 180 countries in 2020, showing a gradual decline in its environmental performance indicators. In this connection, an independent EIA Commission needs to be established to make fair and objective decisions.
The discussion can be hereby concluded at the point that Environment Impact Assessment is a powerful tool that can significantly be used to strike the right balance between Industry and ecology to meet the goals of sustainable development. However, the government has brought such reforms that render it “sustaining development”. Rolling back environmental statutes and diluting safeguards can prove to be fatal to our already depleting natural resources. Also, India’s democratic ideals stand compromised when such dilutions and reforms reduce the scope of public participation in decision-making. The instance of issuing orders and office memorandums that mirror the draconian clause of the Draft EIA notification of 2020 without public hearings is another lethal attack on the governance of the country that makes us question its democratic credentials. Hence, our hypothesis stands corrected that democracy in India is being subdued. Through this paper, we do not aim to suggest that there should be a mindless pile-up of strict regulations upon regulations to safeguard the environment, instead, we suggest that the existing acts and laws should not be further diluted and the government should find ways to keep a check on its implementation and efficiency. Environment and Economy are compatible with each other when there are regulations that make sustainable economic development feasible and a necessary requirement.
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Corporations can promise and/or advance money to the state government in lieu of returns from proposed projects in the state. In June 2007, it was reported that National Hydroelectric Power Corporation would pay Rs 225 crore to the Arunachal Pradesh government as advance against three hydropower projects to be executed in the state. The projects have not been assessed for their design and viability and their environmental clearances are also not in place. But money has been advanced to the state government against Arunachal Pradesh’s entitlement to free power from these projects.The notification allows for legal securing of land before environmental clearances are obtained. So, once a project proponent has secured land for the project, he/she would go to any end to push for project clearance.The clearance process has thus been robbed of its potential for appropriate environmental decision making.
 The exemption to be accorded to highways of strategic importance does away with the need for green clearance for construction of the controversial Char Dham project, which includes widening of 899 km roads in ecologically sensitive areas of Uttarakhand to improve connectivity to Kedarnath, Badrinath, Yamunotri, and Gangotri shrines however SC intervention had been resorted to in the case.
 The projects under this exempted category include: Offshore and onshore oil, gas and shale exploration hydroelectric projects up to 25 MW, Irrigation projects between 2,000 and 10,000 hectares of command area,small and medium cement plants,acids other than phosphoric or ammonia, sulphuric acid.MSMEs in dye and dye intermediates, bulk drugs, synthetic rubbers, medium-sized paint units,aerial ropeways in ecologically sensitive areas,specified building construction and area development projects; built-up area up to 1,50,000 sq. m.and all inland waterway projects and expansion or widening of highways between 25 km and 100 km with defined parameters.
 Jesani also commented that within 6 months of coming to power, the current government approved 230 environmental applications that were previously held up owing to ecological concerns.
 Of 74 gazette notifications published by the Union government, 16 waived the requirement of issuing a public notice before making changes to the EIA notification of 2006. This was done in the name of “public interest”, a provision under the Environment Protection Rules.
 See: (Meyer, n.d.)