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EIA Draft 2020: A Dangerous and Problematic Draft


Introduction

It was not long ago when we heard that carbon dioxide levels have exceeded the oxygen levels by 2025, 2/3rd of the world’s population will not have access to drinking water. Environmental exploitation is always happening. The environment is degrading every day. It is expected that it would be impossible to reverse the worst impact of climate change by 2030. The major challenge is policy making, natural growth cannot be achieved without proper rules and their strict implementation.


With that in mind, the Ministry of Environment and Forest has issued a new EIA (Environmental Impact Assessment) draft which will only make the situation worse. The new draft has been widely criticized by environmentalists and activists across the country. The first EIA notification came in 1994 under the Environmental Protection Act of 1986. This 2020 draft will supersede the 2006 EIA notification. The main function of EIA is to assess the consequences of the new projects to the natural resources and to evaluate its repercussions. All the developmental projects have to go through the EIA process, the important aspects that this process includes are risk assessment, public hearing, screening, environmental management and post product monitoring. Once they pass the required criterion they get Environment Clearance (EC) or ‘go-ahead’ signal acknowledged by the Impact Assessment Agency.

Issues Associated with the EIA Draft 2020

Public Consultation Process


This clause present in the draft talks about the public consultation process. It states that the period for the public hearing has been reduced from 30 days to 20 days. If ample time is not provided to the public for accessing the problems, preparation of views and suggestions then the whole process will lose its meaning and it would no longer be considered as transparent. If the public hearings are faulty, then it would be declared as a nullity in the eyes of law, as it was said in the case of Adivasi Majdoor Kisan Ekta Sanghatan v Union of India. people living in remoter areas do not have access to information or people living in such areas are not well aware of the process itself. Public consultation has been regarded as a fundamental right under Agenda 21 and the Rio Declaration of which India is a part.


One clause present in the draft says that “no projects shall be placed under public domain which concerns national defense and security involving other strategic conditions”. Here the word ‘strategic’ is a bit ambiguous, as the government can put any project under this term to restrict public involvement.


In India there has been a history of cases involving public consultation, there are cases where the rights of the communities were blatantly violated. EIA is the only viable mechanism through which the public can get information about the projects, understand its adverse impacts and make sure that projects stick to the legal safeguards.

Post Facto Approval


This clause says that the projects can be started even without getting environmental clearance from the government; project clearance can be awarded after the work is started. It is detrimental to both the environment and the common public as the hazards caused due to such projects cannot be reversed. The violator shall only be liable for remediation and resource augmentation equivalent to 1.5-2 times of the ecological damage and the economic benefit derived from such violation. In the case of Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors., it was stated that “ex post facto environmental clearances are contrary to law”, it further stated that it is in violation of the precautionary principle and the idea of sustainable development. An ex post facto clearance would essentially enhance the operation of industrial activities without the grant of an EC.


The idea of post-facto approval would be totally against the judgment given in the case of Sarang Yadhwakar and others vs. The Commissioner, while permitting development, one must ensure that not only substantial damage is caused to the environment but also take such preventive measures, which would ensure no irretrievable damage to the environment even in future.”


Compliance Report


According to the 2006 notification, it was required to submit the record of the on-going work every six months showing that the work being done is in compliance with the permission given to them. But now, instead of six months, the promoters have to submit the report only once a year. It is necessary to keep a check on projects and ensure that they are in compliance with environmental law rather than leaving them unchecked and unregulated.

One other issue with the draft is that once the project has begun, only the promoter, any government authority, appraisal committee, or regulatory authority can report the violations that are caused due to the project; which is against the principle of natural justice. The main objective of Natural Justice is to harmoniously construe an individual’s natural rights of being heard and fair procedure as well as the public interest. Larger public interest is to be allowed to override the individual’s interest where the justice demands.


Another major concern is of the northeastern states, the draft states that it aims to set up industries which are within 100 km of international borders that too without public consultation. This area consists of about 25% of India’s forest region. The livelihood of the people would be at stake, massive land requirement would lead to the displacement of such people.

Conclusion


At a time when the world is facing an environmental crisis, the primary goal of any government should be to make laws that are environment friendly and something that matches the interest of the public and their surroundings. After so many environmental developments EIA draft 2020 is a major step back, it will not only help the violators in escaping their liability towards the environment but also encourage such practices. This draft runs contrary to the principles of natural justice and sustainable development which is the backbone of environmental jurisprudence.

Author:


Ayushi Chandra


About the author:


A 4th Year Law student from RMLNLU, Lucknow, the author has immense love for environmental law and human rights.

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