The Environmental Impact Assessment (EIA) draft has drawn much ire of a section of Indian intelligentsia who feel that the new EIA draft is tantamount to India reneging on its environment protection commitments. The new draft EIA Notification, 2020 replaces the existing EIA Notification, 2006. These notifications have been brought under the Environment Protection Act (EPA), 1986. Before forming an opinion on how, and if at all, India is reneging on its commitment to the environment, a brief context about the EPA 1986 and the notifications released under it in 1994, 2006 and 2020 has been presented.
The signing of the Stockholm Declaration on Environment, 1972 could be traced as the foundation of the EPA, 1986. The first EIA notification was released in the post-liberalization era in 1994. Subsequently, as India grew rapidly between 1994 and 2006, the old notification proved inadequate in safeguarding the interests of the environment and labour market at the same time. Thus, it was replaced by the 2006 notification. Nearly a decade and a half of water has flown through the Ganges since then, and the time has come for a new regulation again. The 2020 notification is designed in a way that will protect both environment and jobs.
However, the new notification has become an object of ire. The critics have argued that the EIA Notification 2020 is flawed on several fronts. First, reduction in consultation period will reduce the transparency and credibility of the consultation process. Second, the notification leaves much room open for government discretion and that there is a long list of exemptions to the list of projects. Third, the notification makes room for post-facto environmental clearance. Fourth, the notification has tweaked the baseline data requirements by doing away with impact studies in all seasons in a year. In a recent article for the Times of India, the vice-chairman and a specialist at the NITI Aayog argued that the critics were “politicising the issue when it is vital to maintain a balance between the twin policy goals of generating employment and protecting our environment”. There is merit in the vice-chairman’s article. While some of the assertions of the critics may not be totally unfounded, their criticism of the notification is often hyperbolic and bereft of facts.
The proponents of the notification, apart from the vice-chairman’s lone voice, have not yet been able to articulate the merits of the EIA Notification, 2020. Amidst high decibel noise made by the critics of the draft notification, it is essential to effuse some logic in the debate so that the meritorious aspects of the notification are not lost in the cacophony. The EIA Notification, 2020 is an improvement of its 2006 version, and shall pave the path for balanced growth that accounts for environmental sustainability. The merits can be assessed across many variables, particularly the variables of ease of doing business (EODB), social license to operate, and boosting transparency.
Scrutinising the notification under the EODB variable reveals the first set of merits of the draft notification. First, manufacturing efficiency is closely linked to the quality of the raw material used in the production process. Manufacturing companies pay a lot of attention to improvement in the quality of raw material used in the production process. Under EIA 2006, manufacturing plants wishing to change the raw material blend would have had to undergo a clearance procedure comprising scoping, EIA & Environmental Monitoring Plan (EMP) presentation, Public Consultation & Appraisal. This exhaustive procedure deterred companies from upgrading the quality of raw material used in the production process. Under the draft EIA 2020, an industry changing the raw materials used in the production process will only be required to submit an application online. The application will be scrutinized by the regulatory authority and following its acceptance the change would be approved. Incentivizing faster upgradation of raw material mix will allow companies to invest in higher quality raw material which leaves behind minimal waste. Thus, it will result in increased manufacturing efficiency while reducing environmental costs.
Second, EIA 2020 will also provide a fillip to “Atmanirbhar Bharat” by creating a policy environment that is conducive for manufacturing plants to expand installed production capacity without compromising on the environment. Companies operating manufacturing plants can expand installed capacity upto 50% of threshold capacity subject to appraisal. The appraisal of this plan will be completed within a maximum period of forty five days. This expedited approval procedure will enable companies to respond faster to increasing consumer demand in India and contribute to the Prime Minister’s vision of an Atmanirbhar Bharat. Manufacturing plants engaging in expansion of capacity upto 50% of threshold capacity will be required conduct an EIA & an EMP or produce a ‘No increase in pollution load’ certificate issued by the State Pollution Control Board (SPCB) or Union Territory pollution Control Committee (UTPCC) on recommendation of Technical Committee constituted under Air (Prevention and Control of Pollution) Act, 1981 or Water (Prevention and Control of Pollution) Act, 1974. Thus, while improving ease of doing business adequate attention has been paid to make sure there is no additional impact on the environment post the expansion.
Putting the notification to analysis under the variable of social license to operate also leads us to realise the merits of the current notification. First, industry while complying with EIA, 2006 had encountered the dual challenge of process duplication and an unclear path to resolution of disputes. Process duplication resulted in elongated clearance timelines which in turn resulted in cost overruns. Ambiguous dispute resolution was a source of risk exposure and made projects vulnerable to community driven disruptions. The draft EIA, 2020 has created mechanisms for overcoming both these problems. A Technical Expert Committee has been constituted and this committee has the power to engage in “streamlining of procedures” . Thus, the industry can utilize the technical committee for overcoming process duplication in the EIA process. The EIA has also incorporated measures to provide a clear path to aggrieved parties for dispute resolution. In the project scoping stage, project proponents will be given project specific terms of reference on the basis of which they shall prepare an EIA report. This will result in the incorporation of concerns of the community living in close proximity to proposed projects being incorporated in the preparation of the EIA report.
Second, the Ministry of Environment, Forest & Climate Change (MoEFCC) allows aggrieved parties to approach the National Green Tribunal (NGT) if they are not satisfied with the decision of the Expert Appraisal Committee to award an environment clearance. It provides aggrieved parties a civil mode of dispute resolution instead of resorting to risky modes of disruption.
Third, the Draft EIA, 2020 also lays out a procedure for dealing with violation cases. Violation cases are those projects which have illegally been constructed and have commenced production operations without obtaining prior environmental clearance. Clause 22 of the draft that deals with violation cases reiterates that such cases are in contravention of the law and mandates stringent legal action against violators under section 19 of the EPA, 1986. Violators under section 7-10 of clause 22 shall also be subject to stringent financial penalties in the form of a remediation plan and a resource augmentation plan in addition to a fine for everyday violations. Industries, however, will not be subject to arbitrary closure. They shall be appraised in accordance with the provisions of the draft and will be allowed to continue operations if they meet the criteria mandated under the 2020 notification. This will ensure that industries employing thousands of people at multiple stages in the skill matrix are not arbitrarily shut down. Thus, the arguments against post-facto clearance are based on shaky assumptions and a fear enforcing loop of the critics.
The 2020 notification also performs better than the previous notifications on the variable of transparency. First, clear definitions for critical terms like modernization will help remove ambiguity among all stakeholders such as companies applying for environment clearance, communities living in the vicinity of the aforementioned project and the Government of India. Second, there shall be an integration of all court orders, amendments and office memorandum post September 2006, which shall be instrumental in creating a database of all crucial documents for ready reference.
Thus, the 2020 draft notification is replete with instances of merits that the critics have simply overlooked for reasons yet unknown. The point of this article is not to argue that the draft notification has no demerits. It would be a truism to state that but in the light of few demerits the overarching meritorious framework is being overlooked. The draft notification has received over a hundred thousand suggestions and the MoEFCC must evaluate the merits and demerits of each of those suggestions. The genuine concern of the public including the concerns for employment must be addressed, and if that means retaining the 2020 notification in its current spirit, so be it.
Rakshit Mohan is an independent public and foreign policy analyst and the Editor-in-Chief of The Reformist.