ASHA’s Comments on Draft EIA 2020 Notification

———- Forwarded message ———
From: ASHA Kisan Swaraj <asha.kisanswaraj@gmail.com>
Date: Fri, 24 Jul 2020 at 08:44
Subject: ASHA Comments on S.O.1199(E) draft EIA Notification, 2020
To: <eia2020-moefcc@gov.in>, <secy-moef@nic.in>
Cc: Karthik Gunasekar <gkarthik.gunasekar@gmail.com>, Kavitha Kuruganti <kavitakuruganti@gmail.com>

To,                                                                                                                                                                                                       24th July, 2020

The Secretary,

Ministry of Environment, Forest and Climate Change,

Indira Paryavaran Bhawan, Jor Bagh Road, New Delhi – 110003

Email: eia2020-moefcc@gov.in, secy-moef@nic.in

Dear Sir,

Sub: Comments on S.O.1199(E) draft EIA Notification, 2020 published on 23.03.2020 proposing to amend the EIA Notification, 2006 and seeking public feedback – reg.

We represent the Alliance for Sustainable & Holistic Agriculture (also known as ASHA-Kisan Swaraj Network) which is a large national network of organisations and individuals promoting in a voluntary spirit sustainable and dignified farm livelihoods for thousands of rural families in India. We are deeply concerned that the above draft EIA Notification 2020 will undoubtedly have serious adverse impacts on the lives and livelihoods of millions of persons directly dependent on ecosystems that will be adversely impacted if the above notification is implemented.

The draft EIA 2020 Notification 2020 has too many unacceptable dilutions to the already weak EIA framework that India adopted in 2006. The dilutions being proposed now will certainly not lead to comprehensive improvements in environmental impact assessment, which should be the purpose of the whole exercise. In fact it weakens environmental conservation, which is the very mandate of your Ministry. It is clear that the draft EIA Notification 2020 as it stands currently should be withdrawn. Objections are annexed hereto in greater detail, and many of these have been drawn from the analyses of other networks and organisations.

As a group working on farm livelihoods (where we adopt an expansive definition for a Farmer, as defined in India’s National Policy for Farmers 2007), we find that EIA frameworks adopted so far have been very limited in their approach. For instance, the intimate connection between agricultural eco-systems and larger eco-systems (including biodiversity of birds and bees in forest and grassland ecosystems for instance, and their roles in farm eco-systems) has never been recognized and incorporated into EIA frameworks.

The fact that agricultural livelihoods, environmental resources required for the same, climate change impacts, food security and safety from households upwards etc., are inextricably linked and  affected directly by projects adversely  impacting the environment must be addressed in EIAs.

The Covid-19 pandemic and other zoonotic diseases which have ravaged the world, as we knew it,  are increasingly being linked to human incursions into natural ecosystems, whose complex inter-relationships are violated.

Moreover, in a situation of large scale reverse migration into rural India, there is a stronger need than ever before to develop sustainable farm livelihoods and protect natural resources, for sustainable rural development that will revive the national economy. EIA must be a sound and comprehensive tool to protect ecosystems in a holistic fashion.

We therefore urge you to withdraw the draft EIA Notification 2020, initiate a time-bound, scientific, transparent and participatory process for a comprehensive framework for EIA/EC in India led by an independent, credible team of legal and environmental experts and practitioners, to be put into an appropriate statutory form and adopted after extensive public debate.

Sincerely,

Kavitha Kuruganti

Co-Convenor

(Ph: 8880067772)

 

 

Karthik Gunasekhar

ASHA-Youth Forum

(Ph: 8939138207)

 

 

Annexure to letter from ASHA

DETAILED COMMENTS ON DRAFT EIA NOTIFICATION 2020

The proposed draft EIA Notification 2020 suffers from a number of infirmities that would detrimentally affect the larger public and particularly the rural population which constitutes around 65% of India’s population. It needs to be withdrawn for the reasons given below.

VIOLATION OF GENERAL PRINCIPLES APPLICABLE TO EIA

1. Conformity with EPA and Principle of Non Regression: The EIA 2020 draft notification is regressive inasmuch as it contradicts the  enunciated   intent  of  its  parent  legislation,  the  Environmental Protection Act, 1986. Under  Section  3,  Subsection  (1)  of  the  Environment  Protection  Act  1986,  the  central government   is   empowered   to   take   measures   “for   the   purpose   of   protecting   and improving  the  quality  of  the  environment,  and  preventing,  abating  and  controlling environmental   pollution.”   The   draft EIA 2020 notification is in stark contradiction of the mandate and powers envisaged for the Central government under the EPA 1986, which is the parent legislation. The mandate of the EPA is not to promote ease of business but to protect and improve the environment. In the guise of making the EIA process more “streamlined” and “expedient” there will be violation of the very purpose of the EPA 1986 from which the concept of EIA emanates. Projects are not emergency responses but take a long time between conception and implementation and there is ample time for including EIAs along with all other project related detailing when the project proponent formulates a major project. So the removal and downgrading of criteria is neither in conformity with the intent of the parent legislation from which this notification emanates nor is it justifiable for reasons of expediency, which is not the mandate of the EPA.

2. Principle of Inter-Generational Equity and Precautionary Principle: The idea that the environment ‘belongs’ to this generation to dispose of irreversibly by a few decision-makers at the cost of serious erosion of the ecological capital of future generations, is a gross violation of human rights as well as environmental governance and jurisprudence. Nor can such degradation be compensated monetarily by the project proponents as damage caused to water, soil, air, biodiversity and human health can be both far reaching in its impacts, as also incalculable and irreversible. Such damage does not lend itself to monetization and financial compensation or token reparations and all those who have a stake in the environment must be given sufficient information to understand, and an empowered opportunity to express their views as the decisions may irreversibly affect them and their succeeding progeny. The easing of the clearances for project proponents ignores the major impacts of past environmental clearances that have led to environmental degradation, climate change, occurrence of zoonotic diseases such as Covid-19, loss of biodiversity, soil fertility and water quality. It is contrary to India’s commitment to reversing climate change and improving its past poor performance on the Sustainable Development Goals.

3. Violating the Principle of Enforcing the Law, by legalising transgressions: Existing projects running without Environmental Clearances have caused harm to both the environment  and human health. For instance, as recently as May 2020, the Visakhapatnam LG Polymers factory in Visakhapatnam, was operating  without  an  Environmental Clearance (EC) and was being considered for grant of a post-facto EC, when a gas leak  killed 12 people, and left several hundreds ill. Enunciating ways to condone illegality by post-facto Environmental Clearance, as envisaged in the proposed notification, will encourage the perpetration of illegalities in anticipation of post facto approval and promote ‘faits accompli’ which cannot be easily  reversed.

4. Violation of Human Rights by unwarranted and dangerous haste in notification: It is inappropriate to bring a notification that has such far-reaching and inter-generational consequences, when the entire country is locked down due to an unprecedented pandemic and when people are struggling with personal survival issues and cannot effectively engage with the implications of the notification. An existing notification of 2006 is already there and there is no emergency to warrant the proposed EIA Notification 2020. This is all the more relevant considering that India ranked at 177 out of 180  countries in 2018 on  the  world’s  Environmental  Performance  Index,  having slipped  36 places in just a matter of 2 years (2016). Sustainable Economic growth for the country cannot proceed without Ecological Sustainability and Equity. The protection of the environment is linked to the protection of livelihoods and lives of millions of people who are directly dependent (for example in agriculture, forest-dwelling, fisheries etc.) on the natural resource base of these occupations. There is therefore no justification for haste in introducing a notification that reduces the scope and rigour of regulatory oversights, reduces public hearing processes and contemplates regularisations of illegalities through post facto clearances.

The draft EIA Notification 2020 should, prima facie, be withdrawn as it is violative of basic principles above and this can also be seen from the specific concerns listed below.

SPECIFIC ISSUES OF CONCERN 

1. Legalising the illegal through Post Facto Environmental Clearance: The very purpose of the EIA is to ensure a thorough appraisal of the environmental and health consequences of any major intervention in the environment BEFORE the project commences. The draft EIA 2020 has provision for post-facto environment clearance for legitimizing illegalities committed by project implementers. The notification has laid down fines and penalties “to bring such violation projects under the regulations”. Given the magnitude of benefits that flow to project promoters, such fines and penalties are trivial in nature and have no deterrent force. In fact they seek to tie the hands of Courts in giving punishments commensurate to the damage done and the extent of the illegality. Granting post-facto Environment Clearance is against the Precautionary Principle which is the basis and objective of EIA regulations. It is also totally against the orders of NGT, various High Courts and the Supreme Court. A recent judgment dated April 1, 2020 delivered in the Supreme Court by Hon’ble J Chandrachud in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors has held that:

“The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA notification dated 27

January 1994. It is, as the judgment in Common Cause holds, detrimental to the environment and could lead to irreparable degradation.”

In 2013, the Supreme Court in Association for Environmental Protection v. State of Kerala held that the commencement of projects without prior environmental clearance is violative of the fundamental right to life guaranteed under Article 21 of the Constitution.  The proposed notification would make a mockery of the many well considered court judgments, the Constitution’s safeguards for protection of life and livelihood and the very rationale for environmental impact assessment.

Also, “cognizance of the violation” does not include violations found and reported by independent (Non-government) experts and the local public who are most affected by such violations. An illegality is an illegality and a complaint by anyone should therefore be taken cognizance of, as all citizens are stakeholders in India’s environment for themselves and their successors. This principle forms the basis for courts recognizing PILs by concerned citizens. The draft Notification takes away from local communities the right to seek cognizance and action on violations that can have a direct impact on them.

2. Exemption from Public Consultation and EAC Approval by downgrading classifications: The draft EIA, 2020 allows more than 25 red and orange category industries (with high toxic/negative environmental impact as defined by CPCB) to be started without public consultation. There is a deliberate shift of industries from the rigour applied to Category A projects by the proposed downgrading into Category B.

Many projects are listed as B2 category without justification, though they are known to have serious adverse impacts on ecology and local populations. All projects categorized as ‘B2’ are exempted from public consultation and most of them are proposed to be exempted from appraisal process with only submission of an EMP as a required procedure. The projects exempted from Public Consultation include modernisation of irrigation projects, building, construction and area development projects, production of many chemicals and acids, inland waterways, expansion or widening of national highways, elevated roads and flyovers even inside National Parks and Wildlife Sanctuaries, Offshore and Onshore Oil & Gas exploration including CBM and Shale Gas and all the off-shore projects located beyond the 12 nautical miles, among many others. The exemption of such projects from Public Consultation and prior EAC approval is not warranted as they have had and can have serious environmental, life and livelihood impacts.

Further, downgrading the classification of projects based only on the size and capacity of the project and not considering the impact it might have on the local environment is ecologically unsound. There will be major damage caused to the interests of millions of people by the exclusions, reduced categorization and dilutions in standards in the notification. Some illustrative examples are given below of the consequences of the exclusions and re-classifications to show why these are  not warranted and that the draft EIA Notification 2020 will be a license to cause massive ecological damage to the detriment of both wildlife and people:

a) River Valley Projects: As per EIA 2006 any projects with hydroelectric power generation ≥ 50 MW and ≥ 10,000 hectares culturable command area were considered as Category A projects whereas in Draft EIA 2020 only projects with hydroelectric power generation > 75 megawatts will be considered as Category A projects. River valley hydroelectric projects have historically been scrutinised and have been cited as the root cause of various flash floods. The downgrading of river valley projects from Category A to Category B1 is unwarranted and without any scientific rationale.

b) Inland waterways: These are the lifeline of densely populated communities along the shores of such waterways and any projects on such waterways have an impact on the flood plains and also on valuable riverine species. The downgrading to B2 is unwarranted. The change in definition of capital dredging and maintenance will keep India’s 100 inland waterways out of full environmental impact assessment and this is not acceptable.

c) Expansion or widening of national highways, elevated roads and flyovers including those inside National Parks and Wildlife Sanctuaries and other eco sensitive zones: Highways have been major reasons for loss of agricultural land and monetary compensation for acquisition is rarely adequate for meeting the farmers’ livelihood needs (this includes non-land-owning farmers too).

A very small portion of  India’s land mass is in its protected areas network and should be left inviolate. A large proportion of India’s wildlife is known to exist outside the protected areas network and the unplanned implementation of roads can lead to the fragmentation and decimation of wildlife populations and increasing man-animal conflicts. There should be public hearings on alternate alignments that are the least destructive, but the B2 classification in the proposed notification would prevent this.

d) Offshore and Onshore Oil & Gas exploration including CBM and Shale Gas: Exploration projects are dropped from Category A project to Category B2 projects in the draft EIA 2020 (these were already dropped to Category B via an Amendment of EIA 2006 notification). Oil & gas exploration is a major cause for concern for delta region farmers across the country. For example, farmers in the Cauvery Delta region have suffered greatly from acquisition of fertile delta agricultural land and also from destruction of fertile adjacent agricultural lands due to oil seepage and ground water contamination. Since, as per Draft EIA 2020, public consultation is not needed for oil and gas exploration projects, the concerns of all these farmers would  be unheard and unaddressed.

As recently as June 2020 India witnessed the explosion of an oil well of Oil India Ltd in Baghjan, Assam, killing and injuring firefighters, displacing over 3000 persons, killing livestock and wildlife – fish, birds and reptiles and even the endangered Gangetic Dolphin – and damaging agricultural lands. The project is located close to the unique Dibru-Saikhowa National Park and had avoided public hearings and no EIA was put in the public domain even though oil wells were Category A in the 2006 Notification. Blow-outs are not uncommon in oil drilling and the proposed downgrading in EIA Notification 2020 will give rise to expanding the incidence of damages to agricultural lands, wetlands and estuarine ecosystems.

e) Building, construction and area development projects: The exclusions contemplated are alarming as the construction industry is both a major appropriator of natural habitats and a major contributor to air pollution – for instance, over 28% of air pollution in Delhi is attributed to the construction industry. The proposals to permit land levelling, fencing etc. prior to Environmental Clearance is a licence to destroy natural vegetation and block migratory routes of wildlife and traditional rural rights of way without scrutiny.

f) Pesticide manufacturing units: All pesticides manufacturing units within the notified industrial estates have been moved to Category B1 from Category A. Pollution impact on  air and water is not confined to the industrial estate even if an industry is  located within it and this criterion is not scientifically sound. Moreover the world is moving towards a paradigm shift in agricultural practices with reduced synthetic chemical usage and India has launched itself on the path of non-chemical, organic or natural farming which can make it the world’s leader in this sphere. The proposed latitude to pesticide manufacturing projects is not in consonance with this avowed objective as polluted air and water can cause unacceptable levels of contamination. This also applies to other industries located within industrial estates.

g) Production of chemicals and acids: These industries are major contaminators of soil and water and impact terrestrial and aquatic animals – all of which are also linked to the lives and livelihoods of people dependent on these resources. Manufacture of many chemicals and acids carries risks for health of humans and other species and excluding these from public consultation and the appraisal process is not appropriate.

h) Mining of minor minerals, sand and clay:  The EIA 2006 notification classifies areas of ≥ 50 ha. of mining lease area in respect of non-coal mine lease under Category A. The EIA 2020 draft classifies only minor minerals (not including coal) of areas that have >100 hectare of mining lease area in category A. Sand and clay mining, even in areas smaller than 50 ha, have had major ecological impacts and have been the subject of judicial and administrative strictures. The limit of >100 ha is not warranted and has no scientific basis.

i) Isolated storage & handling of hazardous chemicals: As per threshold planning quantity indicated in column 3 of schedule 2 and 3 of MSIHC Rules 1989 amended in 2000, these were placed in Category A. Whereas in EIA 2020 Draft, this provision has been removed entirely from the environmental impact assessment process. The isolated storage of hazardous chemicals can cause ecological damage and are a potential threat to the health of people and ecosystems due to their volatile and/or reactive nature. Removal from environmental impact assessment for these projects is not warranted.

j)  Aerial ropeways: As per EIA 2006 notification, ropeways were in Category A i.e. “All projects located at altitude of 1,000 mtr. and above. All projects located in notified ecologically sensitive areas.” As per EIA 2020 Draft, ropeways located in notified ecologically sensitive areas have been re-categorized as B2 and other ropeways are not even in the schedule. It is well known that ropeways both at the time of construction and for maintenance thereafter create serious ecological damage through the clearance of natural vegetation. They are obviously located in mountainous areas which are ecologically fragile and the removal of vegetation has far reaching impacts on soil erosion and therefore on siltation of water courses, and on wildlife habitats and wildlife movement. Evasion of full environmental impact assessment is not warranted.

k) Bulk drugs and intermediates excluding drug formulations: These have been reduced from Category A projects to Category B1 and B2 projects in draft EIA 2020. Pharmaceutical manufacture is a highly polluting industry and affects the water source of farmers and of wild species. For instance many agricultural wells and lakes were contaminated and abandoned by farmers in villages adjacent to Sun Pharma in Vedanthangal in Tamilnadu, who had commenced operations in 2000 without obtaining prior environmental clearance under the EIA Notification of 1994. Their effluents have flowed into one of India’s important bird areas, the Vedanthangal Bird Sanctuary, which had been protected by generations of villagers and whose rich nutrient levels sustained thousands of villagers and birds in a symbiotic relationship.

3. Issues with Project Appraisal Process: The draft EIA Notification 2020 will have the following highly detrimental impacts

i. Eliminating screening by State level Expert Appraisal Committee:  The projects are classified as Category A, B1 and B2. As per the EIA Notification of 2006, the Category ‘B’ projects were further categorized into ‘B1’ and ‘B2’ only after being scrutinized in a Screening Process by the State level Expert Appraisal Committee (SEAC). The Draft EIA Notification 2020 has eliminated the ‘screening’ process by State level experts completely by pre-determining and classifying projects under B1 and B2 categories without the necessary expert examination of the extent and nature of specific impacts based on experts’ knowledge of the subject and of local conditions.  

As per the draft EIA notification 2020, Category ‘B2’ projects will NOT REQUIRE an EIA report and public consultation and only an Environmental Management Plan (EMP) report has to be prepared by the project proponent. The EMP has to be placed before the Appraisal Committee only for those projects for which it is specified in the schedule, while other projects do not even need to be appraised. This drastically dilutes the assessment and regulation of B2 category projects. Projects affecting a vast swathe of areas and people will be removed from location specific and subject specific appraisals by experts and by the affected persons.

ii. Dilution of Public Consultation Process, impacting human rights and democracy: Public consultation is the most critical part of the EIA process as it recognizes that the affected pubic are stakeholders in the health of the environment and have the interest and right to ascertain ground realities and draw these to the attention of decision makers. Eliminating public consultation by downgrading or removal gives enormous powers to Bureaucrats, Consultants, Technocrats, Engineers, Investors, and Regulators to proceed without hearing or addressing local people’s concerns about the impacts on their agricultural lands, or the forests, rivers, coastal regions and commons on which their lives and livelihoods depend.

The draft also proposes to reduce the public commenting period from 30 days to 20 days and requires that the public hearing process be completed in 40 days, compared to 45 days under the 2006 notification. Reduction of time will pose a serious problem in those areas where information is not easily accessible or areas in which people are not that well aware of the process. This would apply in most cases given the difficulty that local people would have for gathering appropriate information. The draft also provides power to the Regulatory Authority to cancel the public hearing “owing to the local situation”.

iii. Scoping and Preparation of Environment Impact Assessment Report: According to the new notification, on acceptance of the project for the EC process, the Regulatory Authorities (MoEFCC, SEIAA/UTIAA) will issue sector-wise Standard ToR “without referring to Appraisal Committee” for B2 category projects, for other projects listed in the draft and for all expansion proposals. Similar projects/activities proposed at different locations will not have the same environmental impacts and specific TsoR are needed for all projects. Similarly, expansions can have location-specific impacts and cannot be standardized.

iv. Deficiency in data for decision making: The draft allows use of upto 3 year old baseline data collected even before the scoping process. The baseline data should be collected based on the prescription of the appraisal authority in a Specific ToR as the appropriate time period would depend on various factors, including significant changes that could have occurred in the intervening 3 year period.

The study area for Category A projects is within 10 km and for Category B projects is within 5 km of project site. However, the impact of the project will not always be restricted to these limits e.g. for thermal power plants. It is suggested that the minimum study areas should be specified separately for each sector with specific TORs by the respective EACs, and allow the EAC to increase the study area if found necessary in Specific TORs.

The draft EIA 2020 also allows collecting baseline data for one season instead of all seasons i.e. the full year, which is the minimum norm for any serious scientific study of this type. It must also be noted that the notification prohibits collection of data during monsoon, but the monsoon is often a time for endemic flora or species to emerge and for study of wetlands.

Draft EIA Notification 2020 ignores the need of clearance for sequentially-dependent components such as transmission lines, tunnels, pipelines, roads, rail lines etc. while granting prior-EC which was prescribed in clause 8(v) of the EIA Notification, 2006 (“Clearances from other regulatory bodies or authorities shall not be required prior to receipt of applications for prior environmental clearance of projects or activities, or screening, or scoping, or appraisal, or decision by the regulatory authority concerned, unless any of these is sequentially dependent on such clearance either due to a requirement of law, or for necessary technical reasons.”). The EIA is proposed to be conducted only for the main project, ignoring the impact of connected and sequentially dependent components, which is essential as the combined effect of these can be disastrous. For instance, local people have often protested that it is not the coal mine alone but the transportation of materials from coal mines which leaves a degraded environment behind. Thus, EIA should be conducted for the project as it has been conceived in its entirety.

v. Dilution of General Conditions: The scope of General Conditions has been significantly diluted by reducing the distance from the boundaries of protected areas, eco sensitive areas, borders and critically polluted areas (from 10 km to 5 km in most cases).

The Draft further exempts all B2 projects and Items 9, 10(f), 11(b), 25, 38, 40, 41, 42, and 43 in the schedule and river bed mining projects on account of inter-state boundary from the applicability of ‘General Conditions’.

Also, in EIA 2006 notification “Any project or activity specified in Category ‘B’ will be treated as Category A” if the project falls under the general conditions area. This has been changed to “any project or activity specified in Category ‘B1’ shall be appraised at the Central Level without change in the Category” in Draft EIA Notification 2020.

All these changes will dilute the rigour of scrutiny of projects proposed for implementation in  General Conditions and are undesirable.

vi. The scope of protected areas is restricted to only those which are notified by the MoEFCC. This leaves out other ecologically fragile landscapes such as Reserved/ Protected Forests, floodplains, wetlands, sacred groves, watershed areas, habitats of vulnerable flora and fauna which are also ecologically sensitive areas and perform significant ecological functions. These regions are of great importance to farmers for water and biodiversity resources. Moreover, approximately one third of the population of such highly endangered species as the tiger and the elephant lie outside the protected area network, and this is even more the case for many other endangered species such as leopards, wolves, the Great Indian Bustard etc. It is clear that to begin with, areas protected under Indian Forest Act 1927, Wetland Conservation and Management Rules 2017, CRZ Notification 2019, Island CRZ Notification, 2019 and Rivers notified as National Waterways under National Waterways Act, 2016 should  be protected without any dilutions.

vii. Exception for MSME and projects located within a notified industrial estate: The Draft Notification 2020 has categorized projects under several items (8(a), 9, 10(f), 11(a & b), 24, 25 and 27) of the Schedule as B2 if these are small or medium enterprises. The definition of Small and Medium enterprises under the Draft Notification is adopted from Micro, Small and Medium Enterprises Development Act, 2006 (MSMEDA) and its subsequent amendments. The monetary investments in plant or machinery cannot form the basis to assess its environmental impacts.

The draft has also reduced the categorization of projects in the schedule if they are located within a notified industrial estate (Item 16, 18, 21, 24, 25 (c & d), 27 reduced from A to B1 and Item 16, 25 (a & b) reduced from B1 to B2). The categorization of an Industrial Estate is based on the category of its constituent industries but it has to be clearly specified that the industry’s default category if it were not located within a notified industrial estate would be the criterion for classification of the industrial estate.

viii. Exemption for projects of strategic importance and those near international borders: Projects concerning national defense and security or “involving other strategic considerations” “as determined by the Central Government” are exempted from public consultation and “no information relating to such projects shall be placed in public domain”. The “strategic considerations” is undefined and gives unfettered latitude and it is necessary to both define strategic considerations and determine that only those parts of the information which are declared ‘confidential due to reasons of national security’ should be exempt from disclosure, to be decided on a case to case basis.

The draft also states that linear projects like pipelines and highways in border areas are exempted from public consultation. However, the term “border area” is defined as an “area falling within 100 kilometres aerial distance from the line of actual control with bordering countries of India” which will end up covering a huge area in regions like northeast or northern India. This once again is unscientific and unjustifiable.

ix. Non submission of important EIA related expert clearances: Clause 17(5) states that “Clearances from other regulatory bodies or authorities shall not be required prior to receipt of applications for prior-EC or prior-EP” except for a few approvals. Clearance of the NBWL and ESZ Committees for projects involving Protected Areas, Wildlife Corridors and Eco Sensitive Zones has been dispensed with. These are important statutory bodies with experts and having specific mandates for appraising projects from wildlife and related angles. The EAC must  include the recommendation from NBWL and ESZ Committees as a prerequisite for processing prior-EC.

x. Weakening of Monitoring and Compliance evaluation: The EIA 2006 Notification required that the project proponent submit a report every six months, showing that they are carrying out their activities as per the terms on which permission has been given. However, the new notification requires the promoter to submit a report only once every year. This leaves a lot of room for promoters to pick and choose the data and information which is to be supplied. Also, the penalty amount proposed for delayed submission of the report is too small to have any deterrent effect on defaulters. The non-submission of reports, or submission of false information in such reports should have serious repercussions including suspension and cancellation of the prior EC if it is to deter post-clearance violations.

xi. Clearance for expansion and modernization: The requirement for the grant of Prior-EC or prior-EP for modernization within the existing premises or mine lease areas has been drastically toned down. All Category A and Category B1 projects of expansion proposals or modernization with capacity increase of less than 50 percent will not be required to undertake Public Consultation. As per Clause 16(7) “’No increase in pollution load’ certificate issued by the SPCB or UTPCC” “shall also be considered in place of EIA and EMP” for obtaining Prior-EC for modernization and/or expansion. This limits the criteria for environmental clearance to  pollution under Water and Air acts which is not adequate for environmental impact appraisal.

xii. Requirement of Prior-EC or Prior-EP for starting the project: As per Clause 4(3), ‘construction work’ “shall not include securing the land by fencing or compound wall; temporary shed for security guard(s); leveling of the land without any tree felling; geo-technical investigations if any required for the project.” Fencing or a compound wall can be a great hindrance to wildlife mobility and for the farmers and pastoralists for cattle grazing. Also, levelling of land even without tree felling can lead to significant disturbance to the ecosystem of ecologically fragile areas especially wildlife corridors, wetlands, grasslands, floodplains, hills, scrubland, deserts etc. These should not be permitted until the impacts are studied and EC is granted.

xiii. Cumulative impact assessment: While individual projects may have a limited effect on the environment, the collective incremental impact of multiple projects can greatly increase the environmental impact and be detrimental to the ecosystem and local communities. Cumulative impacts analysis is necessary to ensure that the full range of consequences of the proposed project is considered before decision making and grant of Prior-EC or Prior-EP.

xiv. Penalties for false information and non-compliance of Prior-EC or Prior-EP: The sanctions and penal provisions in case of non-compliance and false information by project proponents and consultants is very meagre and Regulatory Authorities are not provided with powers to take punitive action under the Environment (Protection) Act 1986 which has a wider range of actions, including prosecution and punishment for non-compliance and contravention of the provisions, orders and directions issued under the Act. This minimal penalization for non-compliance has led to a ‘pollute and pay if needed’ model which completely undermines the Precautionary Principle which is the very basis of the EPA. The articulation of such pre-determined penalties also seeks to bind the hands of the Courts to grant penalties that are commensurate with the harm caused and is beneficial to the perpetrator of the offence at the expense of the victims.

xv. Increased validity of Prior-EC or Prior-EP: The draft EIA, 2020 has increased validity of the prior-EC (Construction or Installation Phase) for mining projects (50 years currently vs 30 years proposed in Draft EIA 2020) and river valley projects (15 years currently vs 10 years proposed in Draft EIA 2020), thus increasing the risk of irreversible environmental, social and health consequences on account of the project remaining unnoticed for long. The validity of the prior-EC (Operational phase) is perpetual except for mining. This is not desirable and a validity period should be defined in the prior-EC itself.

xvi. Exemption from EIA process: Some critical projects are either exempted from EIA process (Clause 26) or not mentioned in the Schedule. The Development of Solar Photo-Voltaic (PV) Power projects, Solar Thermal Power Plants, Solar Parks is exempted from requirements of prior-EC or prior-EP. These projects can have major implications for people and natural resources. Solar Parks involve huge land acquisition, especially of agricultural land. There are also protests against the largest solar park in India by farmers in Ramanathapuram, Tamilnadu due to high usage of water for cleaning and maintaining the solar park. Desalination plants have a detrimental effect on the aquatic life of the sea due to discharge of concentrated brine back into the sea which increases salinity affecting fish breeding and also causes coastal erosion, both of which in turn affect the local fishing communities. Other projects like geo-engineering, trawling industries etc. which can have substantial impact on the environment are also not mentioned in the Schedule. With the expected boom in the above mentioned industries, it is necessary to bring such projects under the purview of Environmental Clearance and Public Consultation as these affect the livelihoods of lakhs of persons dependent directly on the sea for their livelihoods as also the national marine wealth.

xvii. Appointment of the EIA consultant to be free of conflict of interest: There is an inherent conflict of interest associated with appointment of the consultant for preparation of EIA report by the project proponent itself. This creates an employer-employee relationship between the project proponent and the consultant and thus undermines the quality of the EIA report. This situation has to be changed. It has long been a demand that the consultant should be appointed by an independent committee comprising experts and the local communities and government representatives, with funds being deposited by the project proponent. This should be considered.

In April 2019, the Division Bench of Justices (W.P. No 16630 of 2018: P.V.Krishnamoorthy vs Government of India) Madras High court in a case against the Greenfield 8-lane Salem-Chennai Highway Project stated that “We may not agree that the report is plagiarized, but what is evident is that there has been non-application of mind and presumably, the feasibility report was required to be prepared within a short period for reasons best known. Therefore, the report prepared by the consultant needs to be scrapped.”

xviii. Subjective and arbitrary nature of the EIA process: Unlike consent granted under the Air and Water Acts, which has defined air and water quality standards and emission standards, there is no set standard for acceptable levels of environmental degradation in EIA notification. A legal definition or regulatory guidance or standard for what constitutes acceptable and unacceptable environmental impact by a project is needed as otherwise the grant of environmental clearance is subjective and arbitrary.

IN CONCLUSION: The undermining of the basic intent of the EPA and the constitutional mandate to the Government that “The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country.” has been repeatedly eroded by MoEF ‘Notifications’ (eg 2006 Notification) and use of  an Office Memorandum by those who are partial custodians of the health of the nation’s environment (while affected communities are the real custodians). The proposed draft EIA Notification 2020 would be so widespread and comprehensively damaging that it would effectively demolish the principles and intent enshrined in the Constitution and the Environment Protection Act to the detriment of present and future generations. ASHA is of the clear view that the present Notification requires to be withdrawn in totality. We request the Government to initiate a time-bound, scientific, transparent and participatory process for a comprehensive framework for EIA/EC in India led by an independent, credible team of legal and environmental experts and practitioners, to be put into an appropriate statutory form and adopted after extensive public debate.

As and when such an exercise is undertaken we shall be happy to play a constructive role in making recommendations in the interest of those citizens who engage directly or indirectly with agriculture, and thus provide the base for the economy, and whose lives are inextricably connected to the state of India’s environmental health and safety.

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