On a visit to India in September 2018, US Secretary of State Mike Pompeo declared that India and his country, as the two largest democracies in the world, “are deeply bound by our shared values”. One such value, it would seem, is the dilution of environment protection regulations by the Trump and Modi regimes as the world battles the coronavirus pandemic.
The track record of both these leaders on environmental issues has been sketchy. In November 2019, US President Donald Trump acted on his election manifesto and notified the withdrawal of the US from the Paris Agreement – a landmark agreement to combat climate change and intensify global efforts for a sustainable low carbon future. A series of other presidential orders have been issued during his term to allow large infrastructure projects by rolling back various Obama-era policies aimed at mitigating climate change.
Back home, the Modi government has also taken various steps to undermine efforts at environment conservation. These include an attempt in 2017 to alter the rules for selecting the chairperson of the National Green Tribunal so that the Central government would have a greater say, a decision that was ultimately deemed as illegal by the Supreme Court. In December 2017, the Central Pollution Control Board pushed back a deadline set in 2015 for regulating hazardous emissions from power stations and moving to cleaner technologies and permitted more than 400 thermal power units to release pollutants under previous norms for an extended period.
A laundry list of the numerous other actions of the Modi government since 2014 that hurt the environment has been expertly summarised in this article.
Same goal
Comparing two major regulatory overhauls by Trump and Modi in 2020 further shows that both regimes are trying to achieve the same goal – to advance industry by diluting environmental impact assessment provisions and reducing environmental scrutiny for projects.
In India, the draft Environmental Impact Assessment Notification, 2020, seeks to make substantial alterations to the previous notification of 2006. The amendments include reclassifying various projects into the lowest category “B2”, which does not require public consultation or scoping (the process of determining terms of reference for preparation of impact assessment).
Other key changes include bypassing the public consultation process and scoping for all projects involving capacity expansion of up to 50%, reducing the minimum notice period for the submission of public responses to 20 days from 30 days, and reducing the frequency of monitoring project compliance after clearance has been issued to a yearly basis (from a six-monthly basis).
Further, there is a separate ambiguous category of projects involving “other strategic considerations, as determined by the Central government”, which is clubbed together with projects involving national security and defence. What constitutes “other strategic considerations” has not been defined. This offers enormous scope for misuse because of the wide latitude enjoyed by the Central government in classifying projects under this category. Once classified under this category, the public consultation process would not be followed for the project, and even information relating to it would not be placed in the public domain.
Perhaps the most deleterious of the proposed amendments and which completely erodes the fabric of environment protection regulations is the provision for issuing environmental clearance after a project has already been constructed or carried out. Legitimising ex post facto approvals in this manner would give an impetus to project proponents to violate the EIA regulations and start a project that would otherwise require prior impact assessment and clearance.
This would also deprive project affected persons from having a voice in the public consultation process.
Pertinently, even after a project has been commenced in this manner after giving a go-bye to obtaining prior environmental clearance, a complaint by the general public or project affected persons will not lead to invitation of scrutiny. It is only at the behest of the project proponent itself, a governmental agency or an authority under the EIA notification, that cognisance will be taken of a violation. Moreover, advocate Satyajit Sarna notes, “Where such ex-post-facto clearances were being granted previously, the courts cracked down on them as illegal” so incorporating such a provision in the notification is an attempt at sidestepping various judicial pronouncements.
Trump’s changes
The rules recently notified by the Trump administration on July 16 (summarised here) similarly seek to dilute the level of scrutiny and review under the National Environmental Policy Act, 1969.
The ambit of projects excluded from environmental assessment and impact analysis has been broadened, decreasing the number of infrastructure projects that will be subject to NEPA review, thereby benefitting projects substantially financed by the federal government. The definitions of key environmental terms have been amended, arguably so as to bypass the need to consider the impact on climate change that occurs over a prolonged period of time.
Another amendment that is similar to issuance of ex post facto environmental clearance in India, is the authorisation of activities pending completion of review and assessment processes under the NEPA. This amendment enables sanctioning of major decisions by a project proponent, such as early land acquisition and procurement of equipment, before completion of the NEPA processes.
Therefore, even if the outcome of the assessment under NEPA is adverse, the balance of convenience is significantly altered in favour of the project proponent on account of the irreversible commitments and investments undertaken – which is a relevant factor before courts when considering whether or not to stall or injunct a project.
In July 2019 the Bombay High Court had stayed further work on the Mumbai Coastal Road Project, a 29.2-km expressway proposed to be built on reclaimed land along the city’s coastline, till such time as fresh environmental clearances were obtained. But the stay was overturned by the Supreme Court in December 2019 on this basis itself: the balance of convenience and the likelihood of irreparable injury being caused were both in favour of the project proponents and the Municipal Corporation of Greater Mumbai.
The common political agenda of weakening environmental protection regulations by the two largest democracies in the world is worrisome. It can be hoped that either a legal challenge to the recent NEPA regulations before the US courts – which is a likelihood – or the outcome of the November US elections influences the future of this retrograde amendment.
In India, the proposed EIA notification is in the invitation of objections phase. The period for submission of public objections was attempted to be curtailed to June 30 by Prakash Javadekar, the Union Minister for Environment, but the Delhi High Court extended it till August 11.
However, objections voiced by the public are non-binding, and will not prevent the draft notification from being brought into force by the Central government. Even a plea by more than 60 former bureaucrats to Modi and Javadekar, urging for withdrawal of the draft EIA notification by “placing ecological and environmental priorities higher than rapacious and exploitative ‘development’”, is likely to be inconsequential.
The massive fire triggered by a gas leak at Oil India Limited’s oil field in Assam in June has brought into focus how bypassing of public consultation process for expansion of project capacity and reclassification of major activities such as oil exploration into the “B2” category can have a disastrous impact on the environment.
If environmental protection is to be given primacy over business and development considerations, mounting a legal challenge against the notification once it is brought in effect, seems to be the most viable option.
Rohan Deshpande is a practicing advocate based in Mumbai. His Twitter handle is @RohanDesh13.