Whose EIA draft is it anyway — people or project proponents?

The draft Environmental Impact Assessment (EIA) notification, 2020 released by the Union Ministry of Environment, Forests and Climate Change (MoEF&CC) has seen many objections to its clauses and averments for violating several provisions under the Environment Protection Act (EPA), 1986.

The notification fails to fulfil the precautionary principle, due diligence and norms for fruitful public participation, making it converse to the protection and safeguard of the environment.

It is, thus, not just vires to the EPA, 1986, but also the right to clean and healthy environment under Article 21 of the Constitution of India.

The draft EIA 2020 reflects technocratic language, as it makes public consultation a tertiary issue and focuses on granting clearances with ease for proponents of projects.

Such an interpretation makes the purpose of the EIA to facilitate ease of doing business for the proponent rather than enabling public participation for decision-making on the environment.

This ease of doing business is done by providing a single-window online portal for application of clearance, allowing post-facto clearances, modernisation without safeguards, monetising offences and seeking compliance through self-declaration and self-assessment through self-appointed experts and consultants.

Such an interpretation reverses the burden of proof and inverts the public trust doctrine [MC Mehta v Kamal Nath, (1997) 1 SCC 388], under which the state is a trustee to a principle of pollute and pay.

It relegates public consultation to the backdrop by reducing the time frame for notice to merely 20 days, conducting clearances through online mode and diminishing people’s role in reporting violations by facilitating monitoring and compliance of the project through the proponent themselves, once the clearance is granted.

To publish or not to publish: Dilly-dallying MoEF&CC abuses judicial process

The draft EIA 2020 was published on www.parivesh.nic.in and www.environmentclearance.nic.in — the MoEF&CC’s websites — but only in English and Hindi.

There was no publication of the notification in any regional or local newspapers. After several representations to the MoEF&CC, the deadline for inviting objections from citizens was arbitrarily extended to June 30, 2020.

A writ petition was filed before the Delhi High Court [Vikrant Singh Tongad v Union of India, WP(C) 3747/2020] in which the court extended the notice period up to August 11.

Looking at the “far reaching consequences of the public consultation process”, the MoEF&CC was also directed to translate the draft into other languages within 10 days, specifying “at least” those languages mentioned in the Eighth Schedule to the Constitution, in order to aid “effective dissemination” of the notification.

A writ petition was also filed before the Karnataka High Court [United Conservation Movement Charitable and Welfare Trust (UCM) v Union of India WP. 8632/2020 (PIL)].

Thus, even though the Karnataka High Court’s order puts onus on translating the draft as per the languages mentioned in the Eighth schedule, there is a need to publish the draft amongst indigenous languages too.

For instance, Gondi, despite having sizeable number of speakers in Central India, fails to find mention in the Constitution as a scheduled language even though communities speaking the language are often affected by environment clearances. 

The bench noted it to be appropriate for the MoEF&CC to exercise its powers under Rule 5(3)(a) and publish the draft in “such other manner as the Central Government may deem necessary” in order to widely publicise the draft.

In the next hearing, the Union government said the State Environment Impact Assessment Authorities (SEIAA) were directed to publish the draft in local languages.

Immediate steps were directed to be taken to ensure the draft was circulated in the official languages of all the states. Subsequent to this direction, the Centre filed objections to it over translation into local languages and filed an appeal at the Supreme Court, though it is yet to be listed.

Engendering a holistic mode of ‘public consultation’

It is imperative to analyse public consultation envisioned prior to the release of the draft EIA 2020 and test the promulgation of this notification on the same principles of participation the EIA process seeks to engender.

The promulgation of the draft EIA 2020 could have been postponed, as the entire country is reeling under the novel coronavirus disease (COVID-19) pandemic. Consultations on this draft cannot not be facilitated because of the priority given to social-distancing.

The MoEF&CC, however, was quick to shift online for granting clearances. This wa seen in the case of environmental clearances granted in Maharashtra through Zoom calls, making public participation a sham exercise.

In the past few months, since the draft EIA 2020 released, there were two severe disasters.

A gas leak at a chemical factory belonging to LG Polymers Pvt Ltd occurred in Andhra Pradesh’s Visakhapatnam, leading to several deaths and health hazards. A blowout in an Oil India Ltd well in Baghjan, Assam, where a massive fire is still ablaze, caused widespread displacement of local communities.

Both occurred because of a faulty grant of environmental clearances.

It is evident that the actions of MoEF&CC — since the release of the notification — were to brush aside any criticisms of the draft.

When such criticism comes from a former environment minister, bureaucrats and non-profits, the MoEF&CC sought to appease these sections by giving them assurances on the veracity and intention of the draft.

But, facing hardline criticism from academics and youth-led climate groups and civil society, the MoEF&CC was quick to censor their voices on digital spaces. It threatened or intimidated them as well, through their supporters or with draconian legislations like the Unlawful Activities (Prevention) Act.

It is, thus, crucial to test the draft EIA 2020 between how courts analysed the inclusive nature of public participation within the EIA process and how to promulgate information in multiple languages, with simplified, non-technical information accessible to the public.

The MoEF&CC must re-evaluate conducting online EIA assessments to ensure compliance with due diligence standards prescribed by the Supreme Court and NGT on numerous occasions.

It must ensure affected people are given reasonable opportunities to vouch for social, economic and ecological impacts when clearances are granted.

In Hanuman Laxman Aroskar v Union of India [Civil Appeal No 12251 of 2018, Supreme Court of India], the court held public consultations to have an intrinsic character (values in seeking views of the local and beyond) and instrumental character (hearing the voices of those communities that would be affected by the activity).

This enabled wide participation in a systematic and time-bound manner.

It was held that the MoEF&CC and other public authorities must provide equitable access to information over the impact of the project, while recognising the right to information and community participation as a co-terminus process [Tirupur Dyeing Factory Owners Assn v Noyyal River Ayacutdars Protection Assn., (2009) 9 SCC 737].

The states must aid in encouraging public awareness through wide and effective dissemination of information as well [Research Foundation for Science Technology National Resource Policy v Union of India, (2005) 10 SCC 510].

The requirement of public hearing under the EIA must echo the model of a jan sunwai (public hearing) to facilitate participatory justice.

Concerned people and local communities act as jury instead of being a mere audience for completing procedural formality of consultations [Samarth Trust and Another v Union of India and Others Writ Petition (Civil) No 9317 of 2009, High Court of Delhi].

The MoEF&CC — through an official memo dated April 19, 2010 — recognised the need to streamline the conduct of public hearings by regulatory authorities such as state pollution control boards and Union territory pollution control committees under the EIA 2006 notification.

It is now sought to be altered through the draft EIA 2020.

This is the first part in a two-part series.

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

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