REVAMPING ANTI-DEFECTION LAWS IN INDIA: THE GAYA LAL LEGACYAugust 26, 2020
WILL THE 20 LAKH CRORE ECONOMIC RELIEF PACKAGE FULFILL THE PURPOSE OF AN ATMA NIRBHAR BHARAT?August 28, 2020
The Ministry of Environment, Forest and Climate Change has issued the Draft Environment Impact Assessment (EIA) Notification, 2020 to supersede the EIA Notification, 2006 in the expectation of streamlining the process and implementing various directions voiced by National Green Tribunal and courts. Albeit, the 2006 notification fulfilled the mission of safeguarding the environment by inspecting the proposed projects (Prior Environment Clearance) at the beginning of the groundwork itself, however, the Central Government aspires to make the process more transparent and expedient through the implementation of the online system, further delegations, rationalization, standardization of the process, etc.
EXISTENCE OF MULTIPLE KNOTHOLES UNDER THE DRAFT NOTIFICATION-
Under the existing law, all the projects are categorized into A, B1, and B2 groupings based on their potential environmental ramifications and extent. The cyclic character of the EIA process involves the interplay among various stages, such as screening, scoping, public consultation, preparation of the EIA draft etc. The proposed projects or activities need to undergo all the stages to successfully acquire Prior Environment Clearance from the Regulatory Authority before any establishment or installation can begin.
Notwithstanding anything mentioned in the previous law, EIA Notification, 2020, proposes under Clause 26 that 40 different types of industries/cases are exempted from procuring prior-EC (Environment Clearance) or prior-EP (Environment Permission) from the concerned authority. This involves transferring certain types of projects from category A to category B2, which doesn’t require environmental clearance. To put it succinctly, the exhaustive process of EIA will get thinned down as a large number of projects would be allowed to commence before any examination which poses a serious threat to our environment and health of the affected communities.
The draft proficiently establishes an effortless and straightforward surveillance modus-operandi to comply easily with the requisites of prior-EC. In accordance with 2020 notification, the project proponent is expected to submit the compliance report every twelve months, in disagreement with 2006 law, which demands the same after six months. The ploy to increase the validity of the approval duration for industries such as mining from 30 to 50 years, river valley, irrigation and nuclear power projects from 10 to 15 years and all other projects from five to 10 years will augment misappropriation of the land and its confiscation instead of promoting development.
EX-POST FACTO CLEARANCE ROUTE: AN ADDITIONAL ENTITLEMENT TO THE VIP’s –
Adding fuel to the fire, clause 22 of the notification provides for ex-post-facto environmental clearance route to the completed projects or the projects which have passed the installation phase without procuring necessary approvals and endorsements from the authority. On cognizance of violation reported by any Government Authority or found during the appraisal by Appraisal Committee or through the suo-moto application, the project proponent is likely to be showered with the blessings of forgiveness, meaning thereby, the project will continue without any changes by paying a certain amount of fine as a violation fee.
Allowing post-facto approval will legitimize the projects which were never given environment clearance at the first instance. The projects will be legally permitted to seek acquiescence from the authorities conceding that it is operating at a place authorised by law and whose expansion is justifiable under environmental ethos. However, this militates against the bedrock of India’s environment outlook that is based on the ‘precautionary principle’. Any shift from the ‘polluter-pays-principle’ to the ‘pollute-and-pay’ principle would wreak havoc. The liberty to layout the report of the assessment of ecological damage in congruence with the CPCB guidelines rests with the project proponent itself; hence the lack of credibility, accuracy and authenticity can end up being a natural corollary.
A DRIVE TO DISEMPOWER THE POOR AND AFFECTED-
Another significant drawback is that the public consultation process period has been curtailed down from the current 30 to 20 days, granting less time to the citizens to critically analyse and furnish ideas and suggestions for the improvement of the proposed draft. The notification also requires that public consultation should be completed within 40 days; as opposed to 2006 law which grants a threshold of 45 days. The ulterior motive behind passing such legislation is to simplify the process of EIA to accelerate the rate of new investments in the country at the cost of the environment. The draft purposely enlarges the categories of projects not requiring public consultation, thereby hampering the transparency agenda, which is an essential norm in the EIA process.
Clause 14 (c) of the Notification grants uncurbed discretionary powers to the Appraisal committee or Regulatory Authority to recommend pertinent mode for the public consultation process, deliberately whitewashing the suitability of those measures. The draft further proposes that all the existing projects on the track of expansion or modernization are immune from public consultation process unless the capacity increase is more than 50 per cent. All projects concerning national defence and security or involving other strategic considerations as determined by the Central Government, irrigation, linear, off-shore projects, etc are categorically condoned from the EIA process.
The conundrum surrounding the word “strategic considerations” mentioned under clause 5(7) is another debacle in the pot full of complications. The state has the means and modes to rationally define what constitutes national defence and security projects, but to determine projects involving strategic considerations still remain a mystery, waiting to be resolved. Any information regarding the ‘strategic projects’ would be barred from being placed under the public domain is an additional source of trouble.
As Abraham Lincoln said, “Democracy is of the people, by the people and for the people”. The active engagement of the public in the drafting of various legislations has repeatedly played an indispensable role in educating the society regarding the costs and benefits of the upcoming projects that are going to affect them directly. Hence, the move to butcher down public consultation norm is dictatorial and against the basic tenets of democracy. The idea of streamlining the EIA process will never intensify economic development. India is currently the fifth most vulnerable country to climate change. Congress leader Jairam Ramesh raising strong objections to the EIA 2020 notification claimed that the draft was another blow to the spirit of cooperative federalism.
The need for ‘robust’ and ‘empowering the poor’ kind of environmental law is the need of the hour. The Central Government with the introduction of some extravagant changes under the EIA Notification 2020 has jeopardized the very foundation of environmental laws in the country. The Ministry of Environment, Forest and Climate Change has failed to scrutinize the notification pursuant to the prevalent situation where the entire world seems to be on its deathbed. The 2020 draft proposes to embolden the bureaucratic and industrial big-wigs whip-hand over the EIA process and give a boost to the encroachments to prevail without fear. India’s incompetence to draft an alive and kicking environmental law can prove to be a huge step backwards on the path of becoming a developed and prosperous nation.
ABOUT THE AUTHOR
Anjali Busar is currently pursuing her BALLB (Hons) degree from Dr Ram Manohar Lohiya National Law University, Lucknow.
In Content Picture Credit: Green Ubuntu