EIA 2020: Why is it so perilous?

Bishaldeep Kakati

Amidst the corona virus pandemic, the government of India (The Union ministry of environment, forest and climate change) unveiled the Environment Impact Assessment 2020 draft to the public in March 2020 seeking to replace the 2006 version of the law. The latest draft has already created a lot of hype amongst the concerned citizens, with many environmental activists and climate change experts opposing the provisions incorporated in the draft. However before we try analyzing the provisions contained in the draft, it is important for us to develop an idea about the concept of Environment Impact Assessment.

Right after the Bhopal Gas disaster of 1986, the Indian Government realized that the Water ACT (1974) and the Air ACT (1981) were simply not enough to protect the entire environment. Hence the Indian Government came out with an umbrella legislation known as the Environment Protection ACT (1986), and under this ACT, India notified its first EIA norms in 1994. The Environment Impact Assessment (EIA) is basically a legal framework that regulates activities that utilize, access and also pollute natural resources. In fact, every development must go through the EIA process for obtaining environmental clearance. Although industries and establishments before being set up must go through the EIA process to safeguard the environment, but by offering some fake legal paper work, industries enjoy a range of de facto concessions exactly opposite to the main purpose of EIA. And these industries and establishments often enjoy de facto concessions mainly because of the faulty project reports of potential impact of an establishment upon the environment, that are often prepared by consultant agencies for a particular fee. In fact most of the times, these reports cannot be relied upon or thought to be accountable.

The 1994 EIA notification was modified in 2006 and in order to incorporate the amendments and relevant court orders since 2006, the government thus redrafted the EIA again in 2020. The primary motive behind this process of redrafting was to make the EIA process more transparent and expedient, however there are certain provisions included in this new draft, that have forced people to oppose it. Hence it’s crucial for us to understand the disastrous impact that these provisions might have upon the environment, different communities of people, etc if these somehow turns out to be legally binding.

The two significant changes that the draft tries to bring in are the post- facto clearance and the restriction on public participation. Speaking of post facto clearance, the honourable Supreme Court of India in an order stated that, “Environmental Law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.” Further the 2020 EIA draft increases the government power and provides no remedy for the political and bureaucratic stronghold on the EIA process and thereby on industries. In fact, speaking of the second significant change that the draft tries to bring in is the notion of limiting public participation in safeguarding the environment. Generally projects based on defence and security is tagged as ‘strategic’, but the government gets to decide the ‘strategic’ tag for other projects as well. The draft 2020 says that no information ‘on such projects’ shall  be placed on public domain, which basically means a project can be deemed strategic without explaining the basic reasons behind it. The draft also provides a   long list of projects such as inland waterways, expansion of national highways which are to be exempted from public consultation and also exempts construction of industries and establishment up to 1,50,000 sq m. Shockingly, the provision to exempt construction up to 1,50,000 sq m was set aside by National Green Tribunal in December 2017. Moreover, with the provisions contained in this draft, projects that violate environment would be able to apply for clearance. And the horrifying fact is that if a developer files late application for EIA clearance, he would only have to pay penalty of Rs. 2000-10,000 per day for the period of delay and the disastrous impact of this provision can be felt only if we relate it by taking into consideration the example of an illegal coal mining activity going on for days and its subsequent impact upon the environment in comparison to the small amount of penalty that is required to be paid by the developer.

However, the impact of the provisions of this draft would be more dangerous in case of North East India as compared to PAN India. This is because in the draft, border area is defined as, “area falling within 100 kilometers aerial distance from the line of Actual Control with bordering countries of India.” And this means it would cover the much of North East India, which is often regarded as the biodiversity hotspot.

If we speak of Assam, we clearly remember how the Baghjan incident already took the lives of many, destroying both human lives and flora and fauna as well and the blowout was so dangerous that the entire area is still burning till today. In fact, the State Pollution Board of Assam had already reported that the oil plant had been operating for over 15 years without obtaining prior consent from the Board. So this is the real consequence of establishing a project or construction without proper clearance. Not only this, but also we cannot ignore the issue of illegal coal mining in Assam’s Dehing Patkai that of late raised a lot of eyebrows. So if this draft becomes a law, it would simply mean destruction of the environment without people being allowed to raise their voices. Furthermore, Oil India’s plan to drill closer to Assam’s Dibru Saikhowa National Park, which would be equally dangerous for both humans and flora and fauna might also get direct clearance if this draft somehow turns out to be a law.

Therefore, this draft not only would destroy the environment, interests of different communities of people, but it also violates article 19(1) (a) and article 21 of the Indian Constitution. And if we have to prevent incidents like Baghjan blowout or the styrene gas leak of the LG Polymer Plant in Vishakhapatnam, then we have to take stern democratic actions against like draft and carry out those activities that can protect our biodiversity and the environment as a whole.