India’s Ministry of Environment, Forest and Climate Change recently proposed a new set of environment clearance rules that seem to be heavily skewed in favour of industries.
The draft of the Environment Impact Assessment notification proposes a mechanism to legitimise some actions that are currently listed as violations, such as projects starting construction without a valid clearance. It also dilutes rules by expanding the list of projects exempted from public consultation and does not prescribe a robust post environment clearance monitoring system.
The draft notification 2020, which will replace the 2006 notification, was put in the public domain on March 12 and the ministry sought views and comments from all stakeholders on it within the next 60 days. The 2006 notification regulates the environment clearance given by the central government for projects such as dams, mining, thermal power plants, infrastructure projects like highways, ports, airport and big construction projects.
Environment lawyer Ritwick Dutta told Mongabay-India that the notification overrides the principles of environment protection. “Instead of focussing on ensuring the protection of the environment, the [2020 draft] 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,” Dutta explained.
In March 2017, the Central Government published a notification that provided industrial projects with a chance to regularise projects that had already started construction work or undertaken expansion without prior clearances. It was supposed to be a one-time policy, but since then, the mechanism has turned into a fait accompli situation. Since 2017, the environment ministry’s expert panel has held 31 meetings for hundreds of such projects that violated the Environmental Impact Assessment 2006 rules.
The 2020 notification goes a step further as it institutionalises this fait accompli situation. For example, the draft 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.”
“Therefore, the ministry deems it necessary to lay down the procedure to bring such violation projects under the regulations in the interest of the environment at the earliest point of time rather than leaving them unregulated and unchecked, which will be more damaging to the environment,” the draft said.
The draft stressed that in cases where the project developer itself reports the violations, the appraisal committee shall stipulate the implementation of the environment management plan, comprising a remediation plan and a natural and community resource augmentation plan. This plan would correspond to 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 by the appraisal committee.
Public’s voice weakened
In the process of granting environment clearances, 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 environment ministry proposes to expand the list of projects that do not need to seek public consultation before they seek environment clearance.
The draft said public consultation is exempted for projects that include modernisation of irrigation; building, construction and area development; inland waterways; expansion or widening of national highways; national defence and security; or those involving “other strategic considerations” as determined by the Central Government. It also includes all linear projects , such as pipelines in border areas, and all off-shore projects located beyond 12 nautical miles.
It also held 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.”
Moreover, a mining project can now get environmental clearance for a period of up to 50 years, in the beginning, itself which in the 2006 version was up to 30 years only.
Dutta said that this list shows how the latest draft is an attempt to skirt around all major decisions of the National Green Tribunal over the past few years. “This [provision] will ensure a huge help for the building and construction lobby which has been facing several court cases regarding clearance rules,” he said.
“With this, it is now ensured that the construction industry will no longer require an appraisal from the expert panels of the environment ministry. Similarly, the term “strategic project” is used in the proposed [Environment Impact Assessment] notification, where public consultation is exempted. Defence and security-related projects are understandable but the governments can designate any other projects as of strategic importance in name of energy security, to steer it clear of any public consultation and push the project. It can be an irrigation project or a mining project,” said Dutta.
The controversy around blanket clearance to housing projects started in the first term of the Prime Minister Narendra Modi-led government when, in December 2016, the environment ministry allowed construction projects spanning 20,000-150,000 sq m to proceed without environment clearance. The ministry had suggested that local authorities would integrate environmental conditions into their bylaws and grant permissions. However, this was challenged before the National Green Tribunal, which had ruled against such a notification giving blanket clearance. Subsequently, the ministry has been trying to bring this change.
“The [Environment Impact Assessment] notification is considered to be an important instrument for enabling environmental democracy through meaningful public participation,” said Sushmita Patel, a researcher working on environmental issues. “This participation is sought to be done through public consultation comprising of two components – a public hearing and inviting responses from those having a plausible stake in the environmental aspects of the project. The time period under the earlier notification for the conducting of the hearing was 45 days. Under the new draft notification, this time period has been reduced to that of 40 days.”
The “public consultation process under the...notification has been riddled with infrastructural disabilities, inefficiencies and lack of access to information,” she added. “Hearings conducted across the country have been notorious for providing incomplete reports, encouraging discussions on irrelevant details of the project, [and] high levels of discrepancies [are present] in the information provided, 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,” Patel said.
She demanded that “to ensure 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.”
Ease of business push
Another contentious point is that linear projects like pipelines and highways in border areas are exempted from the public hearing. However, Dutta underlined that the term “border area” is defined as an “area falling within 100-km aerial distance from the line of actual control with bordering countries of India” which will end up covering a huge area in regions like North East or Northern India. “It leaves a lot to the discretion of the government,” said Dutta.
Uttar Pradesh-based environmentalist Vikrant Tongad emphasised that the draft notification is a huge setback. “A few years ago, the government started focusing on ease of business but today, with changes like these, the only focus is business while the original mandate of protecting the environment is nowhere to be found. The proposed notification is conveniently expanding the list of projects that can be exempted from close scrutiny,” Tongad said.
For instance, the government’s push for inland waterways has been a controversial subject. “There is a case going on regarding inland waterways. Waterways require two kinds of dredging – capital and maintenance. Now, as per the existing rules, capital dredging [for inland waterways] requires environmental impact assessment. However, in the [2020 draft], the ministry has changed the definition of capital dredging to keep rivers out of the purview of the new environment clearance process,” said Dutta.
The draft defines capital dredging as a “one time process involving removal of virgin material from the sea bed to create, or deepen a shipping channel in order to serve larger ships” and “this includes dredging activity inside and outside the ports or harbours and channels.”
Tongad observed that one issue that the draft has ignored is monitoring and compliance of projects cleared. Under the draft notification 2020, project owners are to submit environmental compliance reports after getting clearance every year which, under the 2006 notification, had to be done every six months.
“The backbone of environment clearance rules is monitoring the conditions on which projects are cleared and ensuring compliance. But here the ministry is outright trusting the industries whose track record doesn’t inspire much confidence. This proposed notification has no focus on ensuring compliance and monitoring of projects while it heavily relies on self-certification by the industry,” said Tongad.
This article first appeared on Mongabay.