Draft EIA 2020 notification: Moving beyond technical jargon

This is the second part in a two-part series. To read the first part, click here.

The Supreme Court has recognised the process of public consultation must also be informed beyond the knowledge provided by science and technology in the Environmental Impact Assessment (EIA) report, since local communities possess an innate knowledge of the environment.

In the Hanuman Laxman Aroskar vs Union of India, Civil Appeal No 12251 of 2018, the Supreme Court said:

The knowledge of local communities is transmitted by aural and visual traditions through generations which must also be considered when these communities raise objections during a public hearing.

The nature of these reports on the ground, however, make it unviable for affected groups to comprehend them due to heavy emphasis on scientific terms and jargon that may not be understood in common parlance.

The procedure must be envisioned in a manner that facilitates a cognitive improvement of decisions due to inputs from a plurality of perspectives, including through a widening of the technical and scientific bases for public decisions.

It is the duty of the regulatory authority to ensure scientists and environmentalists appraise the technical aspects in a lucid manner while conducting public hearings. This ensures information is easily comprehended by local communities who may be affected by the project.

The National Green Tribunal (NGT), in the Ossie Fernandes vs Ministry of Environment & Forests (2011): Appeal No 12/2011, said:

If the project involves presentation / clarification requiring intrinsic science and technical knowledge, the environmentalist / scientist may be invited to speak on the occasion in the presence of the public and submit views, in writing, on the subject.

It is imperative that the Union Ministry of Environment, Forests and Climate Change (MoEF&CC) align EIA reports to ensure communities can easily comprehend myriad implications of the project.

The ministry must also provide adequate time once reports are submitted to relevant state authorities (pollution control board or forest department) to raise their concerns over proposed projects.

An example for simplifying such technical data in EIA reports can be seen by tables to indicate pollutant load of a particular project, with flow diagrams to show the mandated procedure that will be followed by the project proponent.

A simplified section of frequently asked questions comprising of technical terms at the beginning of the report can also enable local residents to grasp the contents of reports. It will allow them to raise objections, if any, with much more ease. It was expected that when the EIA 2020 draft was notified, it would engender free flow of accessible information.

The present draft, however, through its complicated terminology-setting, seeks to evade the due process safeguard of public consultation.

Publication of EIAs must enable awareness, communication and engagement

The people of the project-affected village — in addition to publication — should be notified about the public hearing through the concerned Gram Panchayat, as the members of the panchayat can bring it to the notice of local people.

A majority of the rural and indigenous population in India is illiterate and cannot access mediums of notification [Centre for Social Justice vs Union of India (2001): AIR (Guj 71), High Court of Gujarat].

Merely publishing the notice in newspapers, thus, is not considered sufficient to cause notice to affected people if they do not understand the language.

Copies of the notice must be sent to the Gram Panchayat, nagar panchayat or municipality of each affected village, town or district respectively.

Copies of reports of the proponents must also be provided to the public on demand at the local offices of the pollution control board and the proponents [MC Mehta vs Union of India (1985): Writ Petition (civil) 4677 of 1985, Supreme Court of India].

Minutes of the public hearing must be provided to people on demand as expeditiously as possible or within a fortnight from the date these minutes are sent to the MoEF&CC’s Expert Appraisal Committee (EAC).

If the notices of public hearing must have adequate publicity, such notices must be repeated and spread over in 10 days and the executive summary of the project must be provided to them 30 days prior to the conduct of the hearing.

Comments can, thus, be made in a reasonable manner by locals affected by the project [Utkarsh Mandal vs Union of India (2009): Writ Petition (Civil) No 9340 of 2009, High Court of Delhi].

The Adivasi Majdoor Kisan Ekta Sangthan vs Ministry of Environment & Forests (2011): Appeal No 3/2011 by the NGT laid out grounds to declare an environmental clearance (EC) invalid.

Failure to provide any summary of a hearing in the local language after proceedings and lack of recognition of concerns raised by locals in EAC appraisal meetings and the MoEF&CC while sanctioning the project should be grounds to declare an EC invalid.

Procedurally, people must be informed about the final decision by a regulatory authority on completion of a public hearing [Rudresh Naik vs Goa State Coastal Zone Management Authority (2013): (2013 All (1) NGT Reporter (2) (Delhi) 47), decided on 16 May 2013].

This must be done with sufficient reasons, irrespective of whether an EC is granted or not. By applying the standard of communication applicable to a public hearing, the draft EIA 2020 must seek to be inclusive of linguistic diversity in India, which is in itself related to caste, class, identity and region.

It is imperative all legislations, rules, notifications, including the EIA 2020, that affect Scheduled Areas and regions with forest dwelling communities are translated and made accessible to make them aware of the rights they possess.

This must be done in scenarios of land acquisition or dispossession due to environment clearances and will ensure fulfillment of the principle of free, prior informed consent.

It will ensure these communities are able to voice objections or demand equitable reparations beyond the logic of compensation.

While English and Hindi are considered official languages according to the Constitution, more than half the population does not speak either of the two languages. Some communities are not well versed with both languages.

Without delving into a debate on languages, the idea of participation under EIA must ensure delivery of the information to the last mile and utilise its institutional apparatuses to translate the notification into a wide variety of languages.

Since the MoEF&CC failed to publish it in other local and regional languages, it is hopeful that the deadline for filing objections is extended.

The Karnataka High Court on August 5, 2020, stayed the publication of the draft EIA 2020 notification till the next hearing September 7.

Conclusion

The scope of public consultation must be seen as iterative, with a continuous dialogue between the project proponent and local communities to assess the impact of the said project. This must be done while granting the EC as well, to act as a safeguard for monitoring in the post-EC stage.

This continuous dialogue by revisiting the EIA report is a qualitative method to practice monitoring of projects throughout its life cycle, as the concerns and their magnitude are likely to change with developments in the project.

Thus, the present time frame for filing objections to the draft EIA 2020 must be seen as inclusive within the participatory notion of decision-making ingrained within the EIA process. It must also comply with requisite due process norms.

It is crucial to envision the EIA as anticipatory, participatory and systematic in nature and a process that relies on multidisciplinary input, which the draft EIA 2020 fails to do.

To ensure locals have access to several facets of information, the EIA draft must move beyond the notice requirement under Appendix 1 by including details provided by the project proponent in Form 1.

This must be done while submitting for prior EC (prescribed in Appendix II) as well as checklists of environmental impacts which the proponent submits to the EAC during the appraisal process.

It must be made accessible online and copies must be distributed to those directly affected by the project regarding such information.

Regulatory authorities and consultants can enable this process by simplifying the several multi-dimensional impacts in a language that locals are conversant with to ensure they become equitable stakeholders in the decision-making process.

Views expressed are the authors’ own and don’t necessarily reflect those of Down To Earth.

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