16 April 2020
To
The Secretary,
Ministry of Environment, Forest and Climate Change
Government of India
Indira Paryavaran Bhavan, Jor Bagh Raod, Aliganj, New Delhi-110003.
Dear Madam/Sir,
Greetings from the India Greens Party!
As you know, the Ministry of Environment, Forests and Climate Change has put the draft of new rules EIA-2020 in public domain; and has asked if any person is interested in making any objections or suggestions on the proposal contained in the draft notification may forward it to the ministry within 60 days from 12 March, 2020.
Accordingly, India Greens Party, a political party registered with the Election Commission of India under Section 29A of the Representation of the People Act, 1951 (Registration Number: 56/476/2018-19/PPS-I), hereby files objections/suggestions to the said draft, as follows:
1.At the outset, we object to the stipulated time-frame for finalising the draft and its subsequent enforcement, in the light of COVID-19 pandemic worldwide and in India. This draft has not reached many of the stakeholders, people likely to be affected by the new set of rules and people at large, due to the countrywide lockdown. India Greens Party (IGP) demands that a fresh draft be put in public domain, that too after the lockdown is totally over.
We are also convinced that EIA 2020 is an attempt to skirt around all the major decisions of the NGT over the past few years, and therefore object to this draft.
2.Our pointwise objections are as follows:
2 .1. Instead of focusing on ensuring the protection of the environment, the draft EIA 2020 undermines the orders of the National Green Tribunal which had ruled against post-facto approvals. The purpose of this notification is to legitimise illegalities done by industries. It seems to be emphasising that an industrial project that has violated environmental rules will have a right to seek approval for it as long as that project is permissible in the area. It is a mockery of the law.
2.2. India Greens Party objects to the manner in which the draft deals with environmental violations by various industries.
Cases of violation mean instances where projects either started the construction work or installation or excavation or expanded the production or project area without prior environment clearance. In March 2017, the national government had come out with a notification that provided industrial projects with a chance to regularise projects that started construction or undertook expansion and modernisation without prior environment clearance.
It was supposed to be a one-time chance but since then, the mechanism has turned into a fait accompli situation.
The draft EIA 2020 goes a step further as it institutionalises this fait accompli situation. For example, the draft EIA 2020 notes that “such violations being recurring in nature may come to the notice in future during the process of appraisal or monitoring or inspection by regulatory authorities.”
The draft stresses that in cases wherein the project developer itself reports the violations the appraisal committee shall stipulate the implementation of the environment management plan (EMP), comprising remediation plan and natural and community resource augmentation plan corresponding to the 1.5 times the ecological damage assessed and economic benefit derived due to violation while it will be two times the ecological damage in cases where the violation is found by government or during the appraisal by the appraisal committee.
India Greens Party thinks this suggested provision is not in compliance with the precautionary principle and hence is in total opposition to this provision. Further, hoping that any violator may ‘self-report’ is most unlikely.
3. India Greens Party also opposes the weakening of the public consultation process, which the draft EIA-2020 proposes.
In the environment clearance process, public consultation is an important component under which the concerns of local affected persons and others, who have a stake in the environmental impact of the project, are ascertained with a view to appropriately take into account while designing the project.
In the latest draft, the MoEFCC proposes to expand the list of projects that do not need to seek public consultation before they seek environment clearance.
The draft says public consultation is exempted for projects including modernisation of irrigation projects, all building, construction and area development projects, inland waterways, expansion or widening of national highways, all projects concerning national defence and security or involving “other strategic considerations” as determined by the central government, all linear projects like pipelines in border areas and all the off-shore projects located beyond the 12 nautical miles.
It also holds that “all projects concerning national defence and security or involving other strategic considerations, as determined by the central government, shall require prior-environment clearance, from the ministry without any change in the category of the project but “no information relating to such projects shall be placed in the public domain.”
We object to these provisions.
4.The EIA notification is considered to be an important instrument for enabling environmental democracy through meaningful public participation. This participation is sought to be done through public consultation comprising two components – a public hearing and inviting responses from those having a plausible stake in the environmental aspects of the project. The draft provides for a reduction of time period from 30 days to 20 days for the public to submit their responses during a public hearing for any application seeking environmental clearance. It also requires that the public hearing process be completed in 40 days – compared to 45 days under the 2006 notification. The main reason stated for reducing the time is that it would become easy for new investments to complete the formality of EIA.
The danger is that if adequate time is not given for the preparation of views, comments and suggestions to those who would be affected by the project, then such public hearings would not be meaningful (as noted by the high court in the Samarth Trust Case).
Unless a public hearing is meaningful, the whole EIA process would lack transparency and credibility.
The reduction of time would particularly pose a problem in those areas where information is not easily accessible or areas in which people are not that well aware of the process itself. As the Supreme Court has said in several judgements over the years, the time for making any representation should be adequate and if it is not, then it would be a violation of the principles of natural justice.
Hearings conducted across the country have been notorious for providing incomplete EIA reports, encouraging discussions on irrelevant details of the project, high levels of discrepancies in the information provided etc., thereby rendering the entire idea to involve citizens in environmental decision making, moot.
The notification does not address these deficiencies pertinent in the process of public consultation, nor does it seek to ensure the authenticity or increased reach of information, that is critical for the concerned citizens to effectively participate in the process.
India Greens Party demands that discourse and participation remain vital elements of environmental decision-making processes, the efficiency, relevancy and effectiveness of the steps and time period detailed under public consultation, need to be revisited.
5. Another contentious point is that linear projects like pipelines and highways in border areas are exempted from the public hearing. We invite attention to the point that the term “border area” is defined as an “area falling within 100 kilometres aerial distance from the line of actual control with bordering countries of India” which will end up covering a huge area in regions like northeast or northern India. We object to this.
6.This draft is just investor friendly. This is evident from the extension of the time given for submitting a compliance report throughout the term of the project.
The earlier notification required that the project proponent submit a report every six months, showing that they are carrying out their activities as per the terms on which permission has been given. However, the new notification requires the promoter to submit a report only once every year. During this period, certain irreversible environmental, social or health consequences of the project could go unnoticed because of the extended reporting time. For example, if a mining project is being carried out at some place which can be potentially hazardous to the nearby population and can contaminate the air, and water nearby, a half-yearly compliance report would better help in addressing these concerns. Any hazardous activity can then be stopped through timely reporting.
However, providing a longer period for filing reports can lead to disastrous consequences.
In such a situation, the concerned authority will not have the opportunity to question the promoters for not following the terms of clearance. The only remedy would be to impose a fine or punishment; but that would not reverse the detrimental consequences on the environment.
7. Further, the compliance mechanism requires the promoters to file the documents on which the environmental impact is to be assessed. This leaves a lot of room for promoters to pick and choose the data and information which is to be supplied. Arguably, if a proponent is engaged in developmental activity, he has the scope of either hiding data about the detrimental consequences of the activity or downplaying its impact. Large multinational corporations work with the objective of profit and are less concerned about the environmental consequences of their actions.
This can be seen from the example of Sterlite Industries Ltd (a subsidiary of Vedanta), which constructed its refinery projects without even disclosing its mining business at the first stage. In the Vedanta case of the Niyamgiri forest, legal provisions were violated and bent for the corporation’s benefit, ignoring the plight of the Adivasi population. Verification by the government would avoid situations like this. If the government relies only on information provided by the project proponent, this would mean that unless someone complains about a problematic aspect, the problem would go unnoticed.
8. An EIA is considered an important tool to achieve sustainability. The Supreme Court has observed in Vellore Citizens Welfare Forum v UOI that companies’ are vital for countries’ development, but having regard to pollution, the doctrine of ‘sustainable development’ must be adopted by them as a balancing concept. If final clearance is granted after taking into account the environmental, social, health concerns, then it can be said that the government is using this process as a tool to ensure sustainability. But if we look at several aspects of the new draft notification, it seems that the government is compromising on the process – thus promoting ‘development’ without taking into account other concerns.
Considering these eight points and in general the anti-environmental attitude that this notification reveals-India Greens Party and all its members summarily and severely object to it; and hereby demand, that EIA needs to be improved-to make it more environmental-friendly. And this notification summarily discarded forthwith.
Suresh Nautiyal
President, India Greens Party
