EIA-2020 Draft analysis vis-a -vis global norms

ENVIRONMETAL IMPACT ASSESSMENT, 2020 ANALYSIS VIS-À-VIS GLOBAL NORMS

 

INTRODUCTION

Environment impact assessment is a technique of assessing the implications of activities performed by individuals or corporation  and in the process – accessing, utilizing or affecting the natural environmental ecosystem which acts as a social-economic biosphere . The draft  Environmental Impact Assessment, 2020 is a successor of EIA, 2006 under the Environmental Protection Law, 1986. The first EIA in India came on 1994 scrutinizing the then environmental regulatory regimes  of water law, air law etc. The main purpose of EIA is to ensure public participation like conducting a public hearing where the stakeholders and green advocates can point out the shortcomings and suggest productive ways to reconcile development and conservation by analysing the impact of various heavy industrial activities such as constructing waste treatment plants, mines, irrigation dams etc. on the environment and the drafting of equitable ways where  both can survive  a symbiotic relationship. Although, there is no express Legislative framework on the EIA in India’s domestic environmental Jurisprudence, but the supreme court in its various pronouncements have categorically weighed any environmental activity on the contours of  sustainable development goals, Precautionary principle and polluter pays principle; all of which will be dealt in the succeeding part of this article. This article will not only point out the shortcomings( Draft EIA Notification 2020- Paving the way for environmental protection or destruction) but also analyse the EIA draft-2020 on the grounds of already established principles of international environmental law and a successful EIA convention prevailing in the world and suggest pragmatic ways to counter the shortcomings.

MAJOR CONTENTIONS ON EIA,2020 DRAFT-

  1. Many high profile projects have been included under Category- B2, expressly prohibited from public consultation( Clause 13, sub clause-11) thus compromising transparency.
  2. Solar Photovoltaic projects and coal and non-coal mineral prospecting projects do not need prior permission and environmental clearance permit in the new draft.
  3. Notice period of public consultation reduced to 20 days from 30 days.
  4. Application of post facto environmental clearance which means the projects which have been initiated or in the process without prior clearance  if found in the violations of environmental laws will be penalised on the basis of ‘polluters pays’ principle held in ‘Ashwini Kumar Dhal vs. Odisha Pollution Control Board and Ors.’ but the project initiation would not be subjected to public participation or   which works on remedy basis rather than opting for a precautionary principle.
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Thus, the present draft by its different provisions aim to decrease the transparency and opts for a negligent eye for the conservation of the environment.

EIA’S TRYST WITH GLOBAL NORMS-

The international environment law primarily works upon two established principles to analyse a regulation’s effective implementation. These are-

  1. Precautionary principle
  2. Principle of intergenerational equity

Precautionary principle-Precautionary principle provides that activities which have a potential to damage environment should be avoided and timely precautions should be taken to curb the potential  hazards accompanying that activity. This principle’s application is done on legislative, administrative and other grounds. These grounds should give due considerations to factors like proportionality, cost-benefit analysis and socio-economic issues etc. Rio Declaration on Environment and Development – Principle 15 of the Rio Declaration on Environment and Development adopted by United Nations Conference on  Environment and Development in 1992 which states that “when there are threats of serious or irreversible damage , lack of full scientific certainty shall not be used as a reason for postponing cost- effective measures to prevent environmental degradation”.  The preambles of Vienna convention of Protection of ozone layer, 1985 and the Montreal protocol, 1987.  Article 3(3) of the UNFCCC also mentions the precautionary principle. EIA draft, 2020 goes against the basic spirit of precautionary principle by introducing the ‘ post facto clearance’ approach which allows the environment transgressors to start a environment violation project without a prior permit and fining them later if found in contraventions to the environmental framework. This approach is in stark loggerheads with the preventive measures basis of international environmental law. Moreover, the proposed draft is unconstitutional and goes against the verdict of supreme court in Vellore citizens Welfare Forum vs. Union of India where the apex court held that the precautionary principle takes precedence to polluter pays principle and this is an inseparable part of the jurisprudence of environmental law in the country. Similarly, in Narmada Bachao Andolan vs. Union of India, the supreme court took into consideration the environmental hazards of constructing a dam on narmada river and put the burden of proof on the party insisting to change the status quo.

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Principle of intergenerational equity- This principle refers to the equity between different generations. The current policy formulation and implementation should be done keeping in mind the sustainable needs of the next generation. The main objectives of this principle are conservation of options for the future generations to innovate and co-exist with the environment. This principle of intergenerational equity can be identified in various treaties and conventions- 1992 UNFCCC, 1992 Convention on Biological Diversity, 1992 Helsinki Water Convention, Stockholm Declaration 1972 etc. In the present instance, EIA, 2020 draft opts a blind eye towards the sustainable development and their obligations towards future generations by reducing the stringent regulatory framework associated to environmental interference of different industrial projects and making the process less transparent so as to act arbitrarily.   The Supreme Court, in the case of A.P. Pollution Control Board v. Prof. M.V. Nayudu and Ors. Stated that “the natural resources of the earth, including the air, water, lands, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of the present and future generations through careful planning or management, as appropriate.” At another instance, the supreme court in State of Himachal Pradesh v Ganesh Wood Products reiterated that the present generation has no right to deplete the forest rights of future generations.

AARHUS CONVENTION,1988 VS. EIA,2020-

The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was adopted on 25 June 1998 in the Danish city of Aarhus  at the Fourth Ministerial Conference as part of the “Environment for Europe” process. Unlike, EIA – 2020 draft in India, this convention provides the public with right to access environmental information under which the citizens can get any information related to industrial projects, government’s regulatory implementation and upcoming initiatives by also getting insights into the factors like cost-benefit analysis and socio-economic impact of organisations’ projects. Furthermore, this convention acts as a precedent by making public an important part of plans, programmes, policies and legislations that may affect the environment without putting obstacles in the transparency of the  process. Manifolding this merit, the general public is provided with a right to review procedures when doubted by a notion that their right to any environment related information has been violated and no economic activity can take a precedence over this right thus, making this right of supreme importance.

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WAY AHEAD-

The EIA draft though in a bona fide spirit tries to reconcile public effort to mitigate environmental damage but falls short of procedural obligations. As compared with some successful conventions and globally accepted norms of international environment law, the assessment needs to be more public-friendly. Moreover, there should be a freeflow of information in the public domain as far as new developments and initiatives being taken in close proximity to the conservation of the environment. Future policies should be focussed on ways of mitigating the environmental damage in the first place than to equivalenting it with monetary penalties later. There can be modifications made in the Environment Protection Act, 1986 owing to the rapid pace of industrialization of modern world. As far as the procedural aspect is concerned, fast track environmental courts and tribunals can be made to operate under NGT to gear up environment conflict resolutions in a timely manner. Thus, a collective effort coupled with a well-implemented legislation will bolster the environment protection efforts and help the world attain the well-desired sustainable development goals.

 

Author: KUMAR KARTIKEYA,
2nd year -B.A.L.L.B(Hons.) at Hidayatullah National Law University

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