24th October 2020

Confidant Classes

A Premier Judicial Service Coaching

Environmental Impact Assessment (EIA) 2020

A group of more than 500 academicians, scientists and researchers from various educational institutes in India wrote a open letter to the ministry of Environment, Forests and Climate Change listing their concerns about the 2020 Environmental Impact Assessment Project.

  • Signatories are from over 130 research institutes and universities, including the Indian Institute of Science (IISc), Indian Institutes of Education and Scientific Research (IISER), Indian Institute of Technology (IIT), National Center for Biological Sciences (NCBS), Indian Institute of Wildlife (WII).
  • The letter notes that the draft notification, in its current form, is likely to seriously threaten to ecological and environmental security of the country.
  • They adds that “the draft notification does not adhere to the fundamental objectives of its original legislation, the 1986 Environmental Protection Act, nor is it aligned with our country’s commitments under various agreements and international conventions “.
  • They write that while many submitted their comments on time, the limited circulation and unavailability in most Indian languages ​​hampered inclusive public participation.
  • The signatories strongly urge the Ministry of Environment, Forests and Climate Change to withdraw this project and instead strengthen the impact assessment note on the environment of 2006 with a new proposal.

The story to date

  • The Ministry of Environment, Forests and Climate Change (MoEF & CC) published the draft opinion 2020 on Environmental Impact Assessment (EIA), in the intention to replace the existing EIA Notice, 2006 under the Environment (Protection) Act, 1986.
  • The government wants to incorporate the changes in regulations with amendments in the meantime.
  • An EIA makes a scientific estimate of the potential impacts of a project, such as a mine, an irrigation dam, an industrial unit or a waste treatment plant.
  • The regulation also contains a provision for public consultation, including a public hearing during which the local community and interested persons can give opinions and raise objections, on the basis of the draft EIA report prepared by experts for the project.

How is the EIA notification draft different from the one currently in effect?

  • Among the main deviations from the existing regulations is the withdrawal of various activities from the scope of public consultation. A list of projects has been included in category B2, expressly exempt from the requirement of an EIA (article 13, paragraph 11).
  • Projects in this category include offshore and onshore oil, gas and shale exploration, hydroelectric projects up to 25 MW, irrigation projects between 2,000 and 10,000 hectares of control area, small mineral enhancement units, and medium and small smelters involving kiln units, certain categories of rolling mills, small and medium-sized cement factories, small clinker milling units, non-phosphoric or ammoniacal acids, sulfuric acid, micro, small and medium-sized enterprises (MIPYMES) in intermediate dyeing and dyeing products , bulk drugs, synthetic rubbers, medium-size paint units, all inland waterway projects, widening or widening of roads between 25 km and 100 km with defined parameters, cable cars in environmentally sensitive areas, and specific construction and development projects of buildings.
  • Projects on this list are identified, according to existing standards, based on prior review by expert committees, rather than being programmatically exempted.
  • Additionally, coal and non-coal mineral exploration projects and photovoltaic solar energy projects do not require prior environmental authorization or authorization in the new system.

What are apprehensions?

  • There is concern that the EIA exemption and public consultation for activities listed in category B2 and expansion and modernization projects will seriously affect the environment, as these will be carried out without supervision.
  • Combined with a new provision for post-facto environmental clearance (projects carried out without prior approval), this would further weaken protections.
  • Additionally, the notice period for the public hearing has been reduced from 30 to 20 days. This will make it difficult to study the draft EIA report, especially when it is not widely available or provided in the regional language.
  • Likewise, for the modernization and expansion of projects, the 2020 Notification standards are liberal, only those that involve an increase of more than 25% require EIA and more than 50% attract public consultation.
  • According to the proposed changes, project proponents must submit only one annual report of compliance with conditions, of the two existing ones.
  • This development is considered retrograde, as the CAG found in 2016 that the deficit in semi-annual compliance reports was between 43% and 78%, while non-compliance ranged between 5% and 57%.
  • Non-conformities were found, in particular, in hydroelectric river and valley projects and thermal energy projects. After the gas leak at LG Polymers in Visakhapatnam on May 7, the Department of the Environment told the National Green Court that the unit did not have an environmental authorization, revealing the low effectiveness of the rules.

How would the new rules allow ex post authorization of infractions?

  • The MoEF & CC cites its own order of March 14, 2017 allowing the evaluation of projects involving violations – where construction had started or expansion or modernization was carried out without authorization – and an order from the Jharkhand High Court requesting the examination of a case on the merits, independently of the criminal action for violation, to introduce a system beneficial to offenders.
  • The EIA 2020 notification excludes public notification of violations and non-compliance. Instead, the government will only see reports from the offender-developer, the government authority, the evaluation committee, or the regulatory authority.
  • Then, such projects can be approved with conditions, including the repair of ecological damage, which, again, will be evaluated and reported by the offender (and not by an independent agency), although with the guidance of the Central Pollution Control Board should to be used.

How does the draft notification compare to global standards?

  • EIA rules must comply with the requirements of the precautionary principle of avoiding harm and intergenerational equity. The European Union, as an evolving example, has changed its processes in accordance with the Aarhus Convention, 1998, which states that environmental and human rights

How is the draft EIA opinion different from the current opinion in force?

  • Among the main deviations from existing regulations is the removal of various activities from the scope of public consultation. A list of projects has been included in category B2, expressly exempted from the requirement of an EIA (Article 13 (11)).
  • Projects in this category include oil, gas and shale exploration at sea and on land, hydroelectric projects up to 25 MW, irrigation projects between 2000 and 10,000 hectares of command area, mineral upgrading units small and medium, small foundries involving kiln units, certain categories of rollers, small and medium cement factories, small clinker grinding units, acids other than phosphoric or ammoniacal, sulfuric acid, micro, small and medium enterprises (MSMEs) in dyes and intermediate dyes, bulk drugs, synthetic rubbers, medium paint units, all inland waterway projects, widening or widening of roads between 25 km and 100 km with defined parameters, cable cars in environmentally sensitive areas and construction and development projects in specific areas.

What are apprehensions?

  • There is concern that the EIA exemption and public consultation for activities listed in category B2 and expansion and modernization projects will seriously affect the environment, as these will be carried out without supervision.
  • Combined with a new provision for post-facto environmental clearance (projects carried out without prior approval), this would further weaken protections.
  • Additionally, the notice period for the public hearing has been reduced from 30 to 20 days. This will make it difficult to study the draft EIA report, especially when it is not widely available or provided in the regional language.
  • Likewise, for the modernization and expansion of projects, the 2020 Notification standards are liberal, only those that involve an increase of more than 25% require EIA and more than 50% attract public consultation.
  • According to the proposed changes, project proponents must submit only one annual report of compliance with conditions, of the two existing ones.
  • This development is considered retrograde, as the CAG found in 2016 that the deficit in semi-annual compliance reports was between 43% and 78%, while non-compliance ranged between 5% and 57%. Non-conformities were found, in particular, in hydroelectric river and valley projects and thermal energy projects.
  • After the gas leak at LG Polymers in Visakhapatnam on May 7, the Department of the Environment told the National Green Court that the unit did not have an environmental authorization, revealing the low effectiveness of the rules.

How would the new rules allow ex post authorization of infractions?

  • The MoEF & CC cites its own order of March 14, 2017 allowing the evaluation of projects involving violations – where construction had started or expansion or modernization was carried out without authorization – and an order from the Jharkhand High Court requesting the examination of a case on the merits, independently of the criminal action for violation, to introduce a system beneficial to offenders.
  • The EIA 2020 notification excludes public notification of violations and non-compliance. Instead, the government will only see reports from the offender-developer, the government authority, the evaluation committee, or the regulatory authority.
  • Then, such projects can be approved with conditions, including the repair of ecological damage, which, again, will be evaluated and reported by the offender (and not by an independent agency), although with the guidance of the Central Pollution Control Board should to be used.

How does the draft notification compare to global standards?

  • EIA rules must comply with the requirements of the precautionary principle of avoiding harm and intergenerational equity. The European Union, as an evolving example, has changed its processes in accordance with the Aarhus Convention, 1998, which states that environmental rights and human rights are linked, the current generation has an obligation to future generations, sustainable development only It can be achieved through the participation of all stakeholders, government responsibility and environmental protection are linked, and interactions between the public and public authorities must take place within a democratic context. The EU EIA Directive includes issues of climate change and biodiversity.
  • India’s rules, including the 2006 EIA, arguably have privileged the interests of the project developer by reducing public consultation, accepting flawed and flawed EIA reports resulting from outside influences, and ignoring the nature of non-renewable resources. The 2020 notification deepens the impact of this paradigm.
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