The fate of most infrastructural and industrial projects in India hinges on an Environmental Impact Assessment Notification issued by the Central environment ministry and state authorities after assessing the potential environmental and social impacts of these proposals.
The Environmental Impact Assessment Notification 2006 lays the ground rules for how the authorities should decide whether these projects should be allowed, and if so, to give an “environmental clearance” specifying the conditions to be followed to ensure that they cause the least possible damage.
Under the Environment (Protection) Rules 1986, it is mandatory for most EIA Notification amendments to be placed before the public for comments. However, this requirement can be done away with “whenever it appears to the Central government that it is in public interest to do so”. The decision of what constitutes public interest has been left to the discretion of the Ministry of Environment, Forest and Climate Change.
Since 2006, there have been several amendments to the EIA Notification, of which there is no comprehensive listing. We examined 53 amendments made between 2006-2020, available through a compendium for upto 2019, and gazette notifications of amendments made in 2020.
Forty nine out of these 53 required a public notice, and more than 70% of the time, this was bypassed in “public interest”. A reasoning for bypassing was given for only three of the amendments. Further, there are over 200 office memoranda and circulars made available through a compendium and ministry’s website.
A new Environmental Impact Assessment Notification is now under consideration to replace the EIA Notification 2006, the draft of which was released on March 23 in the gazette, a day before the nationwide lockdown to contain Covid-19 was announced. While the ministry claims this is a procedural matter, bringing together past changes, our analysis of the draft shows that wide exemptions are proposed in the appraisal process for projects.
Reducing public participation
One of the few spaces available for public participation as decisions are made about projects is through a public hearing or by members of the public submitting written statements. While many public hearings have been conducted in a token fashion, they remain a crucial forum for concerned citizens.
Although there has been an outrage about the draft, the fact is that the EIA Notification has been systematically diluted over the years. The exercise of diluting the public consultation process has followed a three-pronged approach. First, where exemptions for public hearings are issued to specific sectors or projects. Secondly, by taking project categories out of the environmental clearance process altogether. Thirdly, projects were put under B2 category, automatically exempting it from public consultations.
Under the EIA Notification 2006, projects are categorised as A, B1 or B2 depending on various factors like production capacity, size, technology, location of the project. Based on the category, they have different appraisal requirements. B2 projects are appraised at the state level, and do not need to undergo public consultation.
Direct exemptions
Between 2010 and 2017, public hearing exemptions were granted gradually to coal mine expansion projects, with each exemption allowing more capacity increases to bypass public hearings. In 2010, the ministry issued guidelines which said that if a coal mining project has conducted a public hearing at least once, it may be exempted from public hearing once in five years for expansions.
Following this, several public hearing exemptions were allowed to coal mine expansion projects, only to increase the limit of one-time expansion in capacity. By 2017, based on a special request from the Ministry of Coal, upto 40% of increase in original capacity (without increasing their land area) had been granted this concession.
These exemptions are contrary to the Ministry’s own advisory in 2009 that said public hearing exemptions for such changes should be granted judiciously, with the reasons recorded. These generous expansion allowances for coal mining took away the opportunity for those living amidst highly polluted regions to offer their opinion on whether they could take more.
In February 2018, when the Expert Appraisal Committee examined an expansion proposal by Mahanadi Coalfields Limited, a coal mine in Sundargarh, it noted that there is “high pollution load” in the area. It also mentioned that the public hearing was not conducted properly. Despite this, no further investigation was conducted and a recommendation to give clearance was issued in the “national interest”.
Off the hook
Over the years, the ministry has attempted to abolish the appraisal requirement for expansions of projects, modernisations and changes in product mix or raw material. This despite the fact that changes in land use of a projects, capacity, and technology will have ripple effects on the environment that necessarily need to be mitigated. Development rests on a delicate balance, where only a permissible amount of damage, after careful assessment, should be allowed.
In 2009, the Mauskar Committee while reviewing major amendments, discussed the amendment to exempt modernisation or expansion proposals from the entire EIA process (if this did not involve an increase in pollution load or additional water and land requirements)
While the Committee questioned the very assumption that expansions could take place without an increase in pollution, the additional burden it puts on natural resources, land and transportation was also questioned. There was also a concern that such a provision would give companies undue leeway. On Committee’s recommendation, the amendment was shelved.
Seven years later, the process of bringing back this exemption in a piecemeal manner started under the Bharatiya Janata Party-led National Democratic Alliance government.
In 2016, an EIA amendment was issued to exempt changes in product mix or raw material (without capacity increase or increase in pollution load) from requiring an environment clearance.
In January 2020, an amendment exempted projects seeking a 50% capacity increase through a change in product or raw material mix, from an environmental clearance. To obtain such an exception, a “no increase in pollution load certificate” had to be obtained from the State Pollution Control Board.
Now, the Draft EIA Notification takes the exemption a step further, extending it to all modernisation plans (including those involving changes in raw material, product mix, technology, work process without an increase in land area) with upto 50% increase in production capacity, if a no increase in pollution load certificate is obtained.
State pollution control boards are already struggling to ensure project compliance, increasingly relying on self-certification and third party checks, and are under pressure to ease the way for businesses. Abolishing crucial public hearings that bring diverse perspectives and critical information to the fore only weakens an already strained system.
A category makeover
The January 2020 amendment also made another major change: to make offshore and onshore exploration for gas and oil “B2 category” projects. The Draft EIA Notification adds to this raft of B2 projects. It also requires B2 projects to only obtain online environmental permission, without a public hearing. Projects like inland waterways, ropeways in ecologically sensitive areas, water aerodromes for commercial use and heliports that could alter landscapes permanently are on this list.
These experiences suggest that even if the Draft EIA Notification is withdrawn, it could easily be reinstated by discrete small changes. Recently, our environment minister said rather frankly that he was helping businesses through these amendments. The track record of cursory appraisals, tokenistic public hearings and poor compliance make it difficult to believe that public health and environmental interests are in safe hands.
Perhaps, it is time to rethink the premise of the EIA regime and devise new models of environmental governance that place public health and livelihood security at the centre of environmental regulation.
Krithika A Dinesh and Meenakshi Kapoor are independent researchers in environmental policy.