26.06.2020
To:
The Secretary to the Government of India,
Ministry of Environment,
Forest and Climate Change,
Indira Paryavaran Bhawan,
Jor Bagh Road, Aliganj,
New Delhi-110 003.
Subj: Suggestions and objections of the Goa Foundation to the draft EIA 2020 notification
Dear Sir,
We have read and discussed the draft EIA 2020 notification published on 23.3.2020 within our organization. The consensus within the organisation is that this entire draft should be withdrawn and permanently shelved for it will likely create more problems for achieving more efficient environment protection than the existing version (2006) which is in force. The 2006 version is better amended, if needed, not superseded, along the lines suggested in this communication.
In order to criticize or offer suggestions on the draft EIA 2020, we have examined, first and foremost, whether the draft meets the purpose for which such a notification was found to be necessary, besides, of course, whether it furthers the primary objectives of the parent legislation, the Environment Protection Act, 1986.
The primary purpose of the EIA exercise is for the MoEF&CC, as the overall agency for protection of the environment of this country, to be made aware, in advance, of the damage likely to be caused by economic activity (existing or new), in order to assess whether the pollution load will exceed the locality’s or region’s carrying capacity and thereafter to permit / modify / reject proposals which will do more damage than good. There is an assumption in the EIA Notification that various categories of projects do impact negatively on the environment, hence the need to be pro-active in assessing their likely impact. If mitigation is not possible, the project can be re-oriented in order to eliminate those aspects that will cause gross damage. Thus the Environment Impact Assessment is a planning tool to integrate environment concerns into developmental processes, from the initial stage of planning. This is the sole purpose of the notification. Any proposed change must therefore also have the same purpose.
Secondly, as there was a need (and also a demand from states) to decentralize responsibilities, considering the number of projects applying for ECs and naturally, delays, decentralised decision-making for several categories was built into the notification when it was renotified in 2006. Hence the formation of SEIAAs. To assist the MOEF and the SEIAA, expert advisory bodies with necessary expertise were found to be necessary (EAC/SEAC) and therefore set up.
Thirdly, there is recognition in the country (and the world over) that civil society has a crucial role to play in deciding the kind of industrial and other projects that are permitted in localities, first, because they are at the receiving end when it comes to negative environmental impacts (Bhopal, more recent, LG Polymers); and second, because uncomfortable facts that may be glossed over or hidden by project proponents are often brought to light by public participation, so that an honest assessment of the impact of the project in the light of correct facts can be made and clearances accordingly granted.
Fourthly, there are opinions, reports and decisions of various independent authorities who have examined the functioning of the EIA process over the years, interpreted various provisions, and given directions — for example, bringing sand mining below 5 ha within the purview of the notification pursuant to a Supreme Court order — all of these need to be accommodated within the provisions of the law when it is being amended / revised.
Finally, there are serious problems and issues with the implementation of the existing EIA notification — which we discuss below — which need to be remedied. Without looking into these issues or remediating these problems, no amount of cosmetic or even substantial changes to the law will achieve the desired results for which Parliament passed the EPA in 1986.
Here we rely here, firstly, on the performance audit by the CAG of India, on the environmental clearance mechanism, which was tabled in Parliament on 10.3.2017. We are enclosing a copy of the Executive Summary of the report for your edification and study. But some issues need to be highlighted from this significant report, since they come for consideration from an independent constitutional authority which is widely respected:
- The CAG report clearly establishes that in several cases, too numerous to mention, the delays in processing cases for EC is to be laid at the door of the MOEF&CC (and not on the existing EIA notification). The existing processes for grant of Environmental Clearance suffered from various procedural deficiencies. There were delays at each stage of the Environment Impact Assessment process.
- Each project is treated as a single project for Environment Impact Assessment but cumulative Environment Impact Assessment which is critical in evaluating impact on the environment, was found to be lacking.
- There were variations in the database for the projects granted Environmental Clearance by the Ministry as initially received from the National Informatics cell and that provided by the Ministry.
- A National Regulator to oversee the entire process of grant of Environmental Clearance and monitoring is yet to be appointed despite directions of the Hon’ble Supreme Court.
- Environmental Clearances were granted to the Project Proponents without checking the compliance of the conditions mentioned in the previous Environmental Clearances and recommendations of the Regional Office.
- The Ministry did not compile information about closed/non-operational projects which indicated poor coordination among the Ministry, State Pollution Control Boards/UnionTerritory Pollution Control Committees and Project Proponents.
- Mechanism to ensure redressal of the concerns of the public in the final Environment Impact Assessment report/EC letter and implementation of the commitments made by the PP during public consultation in a time bound manner were also not firmly in place. Besides, shortcomings were noticed in the conduct of public hearings.
- There were shortages in compliance of 13 general conditions prescribed in the Environmental Clearances by the Project Proponents. The non-compliances noticed were non fulfillment of the Environment Management Plan commitments, maintaining sufficient greenbelt, activities under Enterprise Social Responsibility, change in scope of the projects without requisite approvals and commencement of construction/operations before grant of Environmental Clearance.
- There were shortages in compliance to 18 specific conditions prescribed in Environmental Clearances by Project Proponents. The non-compliances noticed were non preparation and implementation of the Emergency Preparedness Plan, allocation of funds for Action plan for conservation of flora and fauna non consultation with the State Forest and Wildlife Department, non installation of Effluent Treatment Plants and Sewage Treatment Plants at project premises, non implementation of Occupational Health Surveillance programme etc.
- In Thermal Power Plants, environmentally safe practices of storage of fly ash were not adhered to, coal of more than permitted ash content was being used, fugitive emission of fly ash was not properly controlled and the fly ash generated was not being fully utilized.
- Inspite of the conditions mentioned in the Environmental Clearance, the Project Proponents showed poor monitoring of environmental parameters. The Ministry/Central Pollution Control Board did not undertake environmental quality monitoring in Critically Polluted Areas due to non-finalization of the firms for the same.
- Project Proponents were also not uploading half yearly compliance reports on their website.
- There was a wide gap between the sanctioned strength vis a vis personnel in position of scientists in all the Regional Offices.
- Regional Offices had not been delegated powers to take action against the defaulting Project Proponents.
- No penalty was imposed by the Ministry for violating conditions of Environmental Clearance in the last two years.
- State Pollution Control Boards/Union Territory Pollution Control Committees had not been carrying out post Environmental Clearance monitoring due to lack of clear cut responsibility assigned to them under Environment Impact Assessment Notification 2006.
It is for this reason that, despite the EIA 2006 notification:
a) There are 43 critically polluted industrial clusters in the country. It is now evident that, subsequent to EIA 2006, the level of pollution has only increased in these clusters.
b) India’s ranking on the world’s Environmental Performance Index has dropped to 177 out of 180 countries in 2018. The actual slippage is 36 places in just a matter of 2 years (2016).
In such a context, to propose to relax and dilute environmental norms laid down in 2006 EIA — as the present draft EIA Notification proposes — in order to enable “ease of doing business” is to lay the ground for a conscious assault on the country’s ecological security.
We also highlight below our own assessment of what has gone wrong with the implementation of the EIA Notification, 2006:
a) The MOEF&CC gives project proponents the clear impression that all that is required of them is to satisfy the TORs and the queries of EAC/SEAC members. Post-clearance, there is actually little or no monitoring of the conditions of the EC and whether these are being followed. This is confirmed in the CAG report.
b) MOEF&CC’s weakness in dealing with environmental violators has invited further contempt from them. In 2017, MOEF issued a notification permitting post facto-ECs. The move was so popular, MOEF&CC has now sought to make it into a permanent feature of the notification. A better case of the tail wagging the dog cannot be found.
c) Decisions on drafting and enforcement of environmental norms are not led by persons with domain experience and expertise. In the last decade, this task and responsibility within the MOEF&CC and with the State Pollution Control Boards has been shifted into the hands of non-specialists, especially IAS officers, who do not have the necessary experience or domain expertise. This often leads to indefensible decisions and delays. Purpose of the EIA Notification is to assist industry to meet standards. Shutting units down or forfeiting bank guarantees cannot be the first response. If, despite assistance, the industry is unable to meet standards because of inability to bring in new technologies required due to cost factors, the Government should step in with subsidies. There is no scope for having statutory requirements and claiming inability to meet them on grounds of cost or unavailable technology. The health of people (the public) cannot be compromised in this manner.
d) The prevailing structure of environment protection measures has given rise since 2006 to a phenomenal and pervasive corruption system. Businessmen and industrialists face most corruption today at the hands of EAC and SEAC members, of whom there are now a large number. Several of the members of these bodies are corrupt and demand money to clear projects. EAC members themselves do lobbying for projects. Environment procedures, in fact, are actively contributing to “dis-ease in doing business.”
e) The Pollution Control Boards are the technical and scientific arm of the environmental regulatory apparatus. They are side-lined for no reason in the task of environmental appraisal. This was highlighted by the CAG report. These PCBs in any case carry out their own programme of assessing projects on environmental grounds for which they have to grant consent. The only contrast with SEAC/EAC is that while PCBs and their members can be taken to Court for questionable decisions, members of SEAC and EAC have no such burden. They cannot be taken to Court because they are not defined as public servants, and therefore subject to the penal provisions of the Anti-Corruption Act. This situation must be remedied. Taking decisions without taking the responsibility for them is unacceptable conduct. These persons need to be made accountable.
f) MOEF&CC displays scant respect for public consultations and their concerns. A lot of money and time is spent on such public hearings. Proceedings are videotaped. The public does a lot of research, studies documents, because it wants its concerns to be addressed. However, as the judgement of the Supreme Court in the Mopa airport case records, the concerns expressed at the public hearing often find no mention in the final EIA/EMP. This is routine conduct of the officials of the EIA system whether at State or Central level.
g) More than 39 amendments and 250 office memorandums relating to EIA 2006 were issued till the present day. They have made EIA 2006 wholly complicated. It is expected that since the draft EIA 2020 is already quite complicated, it will have an even larger number of amendments and office memoranda.
If, therefore, there is going to be a new notification issued, it should fall squarely within the framework described above, as regards purpose and objective, processes and redressal of issues and problems. We find this has not been done anywhere in the draft. In fact, the very intent of issuing the draft appears to be mala fide. It is not to protect the environment – which is the purpose of the EPA 1986 – but to enable “ease of doing business,” an objective that is outside the scope of the EPA. Therefore it is also contrary to law.
Further, rather than addressing the issues and defects in the implementation of the 2006 Notification, the draft EIA 2020 actually does the reverse: it attempts to weaken the 2006 EIA notification, creates chaos with siting of industries and goes on to remove the need for public consultation for several classes of industry, thereby simply dismantling the EIA process.. The approach represented by the draft notification is wrong, muddled, ineffective and counter-productive. One should not attempt to achieve “ease of doing business” by diluting and relaxing environment norms.
The solution to difficulties, problems and poor implementation cannot be to abandon the norms themselves. This is an appalling response. It will only result in a meaningless EIA exercise, where routine environment clearances are issued just as a formality, without even having had access to correct data as regards location of project vis-a-vis the ecological and archaeological features, etc., in the vicinity. The sincerity of the MOEF&CC is therefore in doubt.
Therefore, our firm conclusion that the EIA 2020 is a wholly inappropriate and unwanted piece of subordinate legislation. It should be withdrawn and permanently shelved. It is contrary to the objects of the EPA 1986.
We now set out our specific objections to the draft EIA 2020:
a) The MOEF&CC must provide the reasons or grounds why it desires to dilute the provisions of the EIA 2006 notification. “Ease of doing business” cannot be a ground. It is extraneous to EPA, 1986. None of the reasons is available anywhere in the public For instance, coke ovens producing more than 2.5 lakh tonnes per annum fell in category A of the 2006 EIA notification. Today, the minimum limit has been raised to 8 lakh tonnes per annum. Worse, these plants can now be permitted within 5 km of Protected Areas (PAs) and ESAs. This is simply ridiculous when one considers the environmental impact of such units. Till recently, in fact, the buffer zone surrounding PAs, tiger reserves and National Parks was 10 km!
Coke ovens are one of the most serious sources of organic pollution in this country. Emissions include toluene, xylene and benzene, all carcinogenic compounds. Till today, very few coke ovens, even in the Tata group, are able to meet standards. Failure means exposing the communities (and now wildlife as well) surrounding such plants to enhanced cancer rates.
So what is the ground for this relaxation? And why allow such large plants within 5 km of wildlife sanctuaries? Is there no other place in the country available to locate them? No answer. If a study was done, it should have been uploaded on the Net. We dare say that if such drastic changes are being proposed, they must be because some powerful group has intervened, and not because the need is to improve measures to protect the environment.
This country’s environment and the health of its citizens is not some private property of the Ministry and its bureaucrats that it can be drawn, quartered and handed over to persons or agencies insensitive to the demands of sustainability and the requirements of wildlife and nature conservation.
b) It is also very clear from the nature of the proposals made that this entire exercise of superseding the 2006 EIA notification is being carried out at the behest of corporate and business lobbies. The exercise is neither in public interest nor in the interest of the country’s economy. Diluting and relaxing environment norms cannot be in the interest of protecting the environment from harm originating from developmental and industrial projects. These are extremely short term and short sighted measures, and in fact are bound to negatively impact sustainable business and industrial growth in the long run.
c) EIA 2006 had two categories: A & B. EIA 2020 proposes A, B1 and B2. All B2 categories are exempt from public consultation. Why? Isn’t the Government of India convinced by now that the public must be involved and consulted in what happens in their neighbourhood? That there is invariably trouble and projects get delayed if the public is not consulted? If the Government wants to remove consultation from the process, then allow this only for white category industries. The draft EIA 2020 allows red category industries under B2 and still cancels public consultation. India is a democracy? We are not a banana republic. The Ministry should not think so. It has no right to think so.
d) The Central Pollution Control Board (CPCB) has worked on a list of industries which it classifies into Red, Orange and Green. (Now the MOEF&CC has gone and created one more category: White.) These categories reflect pollution load: red being the highest. CPCB is part of the MOEF&CC. However, the CPCB’s classification is not used for the EIA process, so that in EIA 2020 we have red category industries now spread all over, including within 5 km from Protected Areas and ESAs! All that the MOEF&CC should have done is put all the 17+ Red category industries (with major projects like hydel projects, etc) in Category A of the EIA notification. That would have solved the problem at one stroke. Now the CPCB list is at variance with the EIA listing and will lead to siting chaos in view of involvement of CPCB and state boards in zoning atlases. The confusion can only benefit environmental offenders and further affect “ease of doing business”. The biggest beneficiaries of such amendments would be consultants, most of whom are simply racketeers who are basically expert in cut and paste assessments.
e) There are other significant changes, like the validity of ECs granted. For mining, validity of an EC is now going to be 50 years (coterminous with 50 year leases) i.e., it will be valid across two generations, which is complete nonsense. This effectively means those who grant the clearance are never there when the lease comes to an end, and no one will enforce closure and rehabilitation of the mined site. This is because most mines are already nearing exhaustion. Some mining leases do not have more than three years of production left. The expert committee report of Parliament in relation to mining of iron ore stated that in a “business as usual” scenario, there is only adequate ore to last the country 40 years. If industry is further expanded, the ore will not last 25 years. Yet, the MOEF&CC is granting ECs for 50 years!
Mining is one of the worst industries covered under the EIA process, that too against the will of the miners. There is no environmental justification for an EC extending beyond 5 years, so that mining practice is kept strictly under monitoring and control. If the miner does not respect law in the first 5 years of operation, the EC should come to an end. Today, the MOEF&CC, by a strange act of charity, is permitting any person with a valid lease an EC for 50 years simply because the lease is now valid for 50 years. Can the Ministry indicate any mining lease that is following the conditions of its EC, so that miners can be rewarded with an EC valid for 50 years? This strains the imagination. You have simply given up your responsibility for environment protection as a Ministry.
f) In several cases, industries and projects are enabled to come up from the boundaries of wildlife sanctuaries and ESAs. No reason for such changes is provided, considering that the first buffer zone for wildlife sanctuaries was 25 km, then it was reduced to 10 km. It is still 10 km for several sanctuaries, though a large number of sanctuaries have at least a minimum buffer of 1 km. How does the Ministry – which has issued these notifications declaring buffer zones – now permit industries upto 0 km of PAs and NPs? There is no answer! Bottom-line, it appears, the Ministry has simply no concern for the country’s wildlife. Or for rational or coherent thinking.
Specific Objections and Recommendations
For the sake of convenience, these are listed table-wise:
| Sl. No. | EIA Draft 2020 Dilution | Goa Foundation’s Response |
| 1. | Para 22 makes post facto ECs a permanent feature of environmental governance. | Para 22 must be dropped in any case, as post facto ECs or retrospective ECs have been explicitly held by the Supreme Court to be alien to environmental jurisprudence. |
| 2. | Conflict of interest of expert committee members (EAC/SEAC) is not attended despite it being in full display. | EAC/SEAC members must be declared public servants and liable for penal action for mala fide or corrupt decisions. Today they decide without responsibility. |
| 3. | The concept of Environmental Permission (EP) dilutes the entire objective of the EIA Notification and is in violation of the Hon’ble SC’s judgment in Deepak Kumar vs St. of Haryana (2012) 4 SCC 629. It cheapens or downgrades the idea of an environment clearance which is given only under the advice of experts. | “Environmental permission” concept should be omitted. All projects within the ambit of the EIA Notification must require an EC and the grant of EC must be on the basis of domain experience. |
| 3. | S4(3) Pre-EC construction permit is not acceptable as it is often used as a weapon for getting the project passed.
As an example, fencing of acquired project land which also serves as village thoroughfare, grazing lands, etc. A site selection exercise would look at several sites. |
Make all pre-EC construction work await EC. There should be no exception. |
| 4. | S5(3) and (4) These provisions imply that all Cat B1 projects, except those that fulfill the General Conditions, would require an EC from the SEIAA/UTEIAA as well as the Ministry. | The first part of S5(4) should be omitted. The provision should only state that Cat B1 projects that fulfill the General Conditions would require an EC from the Ministry. |
| 5. | Public Consultations are now allowed to take only material environment concerns on which they may express their views. | Unnecessary restriction. Public consultation must be fair and free and must include the whole gambit of social issues as well. |
| 6. | More than 25 red and orange category industries (with high toxic/negative environmental impact) can now commence construction without public consultation and EAC approval.
This list includes mining, oil exploration, river valley projects, thermal power, production of chemicals and acids, cement plants, and many more. |
The process for environment clearance for red and orange category industries MUST require public consultation and EAC approval.
Category B2 should not include any industries in the CPCB red and orange category. Shifting the classification of industries in orange and red category to Category B2 is retrograde in law and is not in consonance with EPA 1986. (Niti Shankar Deshpande Vs UoI – it is the duty of the Government to strengthen the law not weaken it). |
| 7. | The draft exempts a large number of projects from public consultation, including modernization of project expansion up to 50% of its capacity, all irrigation projects, secondary metallurgical industry (non-toxic metals), range of chemical plants in industrial, biomedical waste treatment facilities, common effluent treatment plants, building construction, elevated highways, off-shore projects located beyond the 12 nautical miles. | We protest this exclusion. In many of these cases, an offending industry’s request for enhancement of production can be the only opportunity available to the public to audit its environmental performance. CETPs are notorious failures. Biomedical facilities are a danger to communities, especially due to under-performing equipment like incinerators. |
| 8. | Item (42) in Schedule: Hospitals generate biomedical waste and create a biohazard during a pandemic.
The proposed amendment has hospitals below 1,50,000 sq m outside the purview of EIA even inside ESA. |
Mandatory public consultation in the process of environment clearance for hospitals, irrespective of proposed area or size. |
| 9. | Item 1(a) in Schedule: Amendment allows mining below 5 hectares without EAC approval.
|
This is illegal as per the judgment of SC in Deepak Kumar Vs State of Haryana. MoEF has been asked to pass directions for mandatory EAC approval irrespective of the mining lease area by 31st Dec 2018. This has not been complied with. Should be dropped. Many of these leases are for sand mining. Indiscriminate sand mining is threatening the ecological integrity of several of our rivers and their banks. |
| 10. | Item (3) in schedule: River valley projects less than 25 MW have been moved to Category B2. | All river valley projects, independent of capacity, to be included in Category A.
Mandate that, prior to the approval of such river valley projects, a cumulative EIA by an independent duly accredited body be done. Such cumulative EIA must consider the impact of the proposed and existing projects on the river for a distance of 20 kms upstream and downstream of the proposed project site (subject to the national border). Such projects have a serious impact on coastal fishing due to impairment of tidal exchanges and hence any cumulative EIA should also assess such coastal impacts. |
| 11. | All offshore drilling, trawling, deep sea mining and offshore wind energy has been exempted from Public Consultation beyond 12 Nautical miles | The exclusive economic zone (EEZ) of India is up to 200 Nautical miles. We say NO TO any oil drilling, deep-sea exploration, and trawling without public consultation. Offshore wind energy needs EIA as a compulsory pre-requisite.
Disturbances to the ocean ecosystems and/or accidents like oil spills can have wide-ranging impacts on the lives of India’s large coastal population of 60 million including fishermen and farmers, most of whom are poor. |
| 12. | S16(1) Expansion Criteria: Any Cat A, B1 industries that are already large in capacity can expand up to 50% of their current capacity without public consultation.
Expansion does not require Environment Clearance: All expansion proposals of existing projects having earlier Prior Environment Clearance get ToR issued within 7 days without referring to the EAC. |
We say NO TO expansion in the capacity of all red and orange category industries without the public consultation process. Such consultations are the only means to review the performance of the unexpanded unit in the past.
Ensure all expansion projects have prior EC. LG Polymers in Vizag is a recent example of capacity increase without EAC approval. As CAG suggests, no EC to be considered unless past performance is considered. |
| 13. | Dilution of S3(30) : General conditions have been significantly diluted to reduce the distance from the boundaries of protected areas, eco sensitive areas, borders and critically polluted areas | Retain General Conditions in its original form.
This is the most destructive and retrograde amendment proposed in the EIA 2020 as it opens up large ESAs for potential red and orange industries. No public hearing must be an extreme condition. Clear reasons should be provided. We say NO TO reduction in General Conditions from 10 km to 5 km for all industries from the boundary of PA, ESA, and within ESZ. Retain 10 Km as per EIA 2006. This will have severe impacts on ecology and in turn adversely affect the provision of ecosystem services like disaster control and water security which are far more major concerns today than industrial activity. Recent floods and landslides in Kerala and Karnataka are examples. We say NO TO any industry within Eco-Sensitive Zones. The activities permitted or restricted or banned within Eco-Sensitive Zones to be strictly adhered to. In fact, this provision is contrary to the notifications already issued by MOEF&CC declaring buffer zones pursuant to directions of the Supreme Court. Since these buffer zones vary from sanctuary to sanctuary, a 10 km limit is best. |
| 14. | S16(1) has changed the definition of modernization to include aspects that are not in consonance with the accepted definition of process or plant modernization.
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The definition of modernisation should strictly only be restricted to changes/improvement in technology. All other changes in the working of the industry (such as increase in the number of working days or increase in the capacity utilization of plant and machinery in the project ) should be part of the expansion definition.
We say NO TO modernization and expansion of capacity, irrespective of the percentage of expansion, without the EIA process of Scoping, EMP, Public Consultation, and EAC approval. Environmental load on ecosystems has increased 4 times since 1994. This is all the more relevant as population density is increasing rapidly in all our towns and cities and an enterprise considered small now will not be safe 5 years thereafter. Small enterprises like lead battery recovery units or chrome plating units (generating hexavalent chromium) can be more polluting than larger units. |
| 15. | Item(43) of Schedule allows >1,50,000 sq. mtrs. of built-up area of elevated roads and flyovers are NOW allowed without Public Consultation inside National Parks and Wildlife Sanctuaries | We say NO TO any concrete structures that are detrimental to the health of forest ecosystems inside a reserved forest, National Parks and Wildlife Sanctuaries without Public Consultation and EAC. This is a non-forest activity and is against Section 2 of the Forest Conservation Act 1980. Such activity is not permissible as per sections 29 and 35 of the Wildlife Protection Act, 1972.
Such elevated roads are ecologically unsound as they lead to high damage to forests during construction phases and lead to severe air, noise, and environmental pollution due to heavy traffic. The wider highways will impact arboreal and nocturnal mammals that depend on contiguous canopies for gene pool exchange. Hence these landscapes shall be devoid of roads. Apart from this, the large resource requirement to build these infrastructures would also mean blasting nearby fragile hills for construction material. |
| 16. | S19 has diluted the validity period of Mining from 30 years to 50 Years. | Decrease validity period of all Category A mines to 5 years. Ensure cumulative impact assessment across the years of operation as criteria for renewal of EC. |
| 17. | S 19 has diluted all projects EC to be valid for 10 years instead of 5 years | We say NO TO EC Validity of all red and orange category projects beyond 5 Years. |
| 18. | S26 is a section included to explicitly bypass the EIA process for large Solar Parks, Industrial Estates and Defence projects | We say NO TO red and orange category industries which have been mentioned in S26 without Public Consultation, Prior EP and EC. |
| 19. | S22 No role for citizens to take part in the cognisance of violations | Citizens MUST BE a part of the process of identification of violation.
EIA 2020 must include a process for registering a complaint by a citizen of India and reporting on the progress and outcome of the investigation in a time-bound manner. Such a process must include the name/s of responsible officers of Government or quasi-Government bodies and the addresses and phone numbers of these agencies. |
| 20. | S22(9) provides for pecuniary compensation for violations that have no correlation with the environmental and social losses incurred in violation of a Cat A or Cat B project. This contravenes S15 of the Environmental Protection Act. | All environmental violations SHALL have criminal liability as per S15 of EPA. |
| 21. | Expand the list of ecological assets which will require public consultation and EC | Besides the categories provided in the notification, following should also be added under precautionary principle:
1. Landslide prone, seismic prone areas as per the zonation maps published by GSI shall not be allowed for red and orange category industries. 2. Hill Districts of Western Ghats 3. Hill districts of Himalayas 4. Hill district of Aravallis 5. Reserved Forest, Community Forests, Sacred Groves 6. Wild Animal corridors – Large mammals like Elephant, Tiger and arboreal and endangered species like LTM, Slender Loris 7. Wetlands like paddy lands, myristica swamps, lakes, ponds, and other waterbodies 8. River Catchments – Example Kodagu, Wayanad, Idukki, Shivamogga 9. The high watermark of river 10. River estuaries and delta regions 11. Watershed areas of arid zones. 12. UNESCO World Heritage Sites (including Living Heritage Sites) and biodiversity hotspots 13. Ramsar Sites 14. Critical ecosystems like Shola Grasslands and grasslands of Central India plateau 15. Mangroves and other coastal ecosystems like turtle hatching sites |
| 22. | The draft is not willing to accept that EIA consultants are a seriously compromised group and so are the EIAs prepared by them. | EIA preparation should be a process under an independent Environment Regulator as directed by the Supreme Court of India. The Regulator may rely upon accredited consultants. Costs to be paid to the regulator. This will ensure credibility. Present systems have zero credibility. |
Finally, there is a new section added (Para 22: Dealing of Violation Cases) which deserves special comment as it is only another label for post-facto environment clearances and the procedures for obtaining such clearances.
The draft EIA 2020 was notified on 23.3.2020. The Supreme Court’s judgement in the Alembic case (Civil Appeal No. 1526 of 2016. Alembic Pharmaceuticals Ltd. Versus Rohit Prajapati & Ors.) – where the Court has ruled that post facto ECs are contrary to environmental jurisprudence – was delivered on 1.4.2020. It is entirely possible that if the judgement had come out prior to the issue of the draft notification, the Ministry of its own accord might have dropped para 22.
In fact, on 7 May, LG Polymers in Vishakapatnam had a styrene vapour emission which killed several people and animals, and sent hundreds to hospitals. The unit was operating without an EC, and was due to be considered for grant of a post-facto EC by the “Violations Committee.” Fortunately, another post-facto clearance has bitten the dust.
Though the Ministry would be aware of the Alembic judgement, it is still worth quoting a couple of paras from it in case the Ministry has already forgotten what the Court has said. Specifically regarding post facto clearances (or “dealing with violations” with a view to grant ECs to such offenders thereafter), the Supreme Court observes:
Para 21. The omission in the appeal to make any attempt to sustain the circular dated 14 May 2002 with reference to the provisions of Section 3 of the Environment Protection Act 1986 is significant. For an action of the Central government to be treated as a measure referable to Section 3 it must satisfy the statutory requirement of being necessary or expedient “for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environment pollution”. The circular dated 14 May 2002 in fact does quite the contrary. It purported to allow an extension of time for industrial units to comply with the requirement of an EC. The EIA notification dated 27 January 1994 mandated that an EC has to be obtained before embarking on a new project or expanding or modernising an existing one. The EIA notification of 1994 has been issued under the provisions of the Environment Protection Act 1986 and the Environment Protection Rules 1986, with the object of imposing restrictions and prohibitions on setting up of new projects or expansion or modernisation of existing projects. The measures are based on the precautionary principle and aim to protect the interests of the environment. The circular dated 14 May 2002 allowed defaulting industrial units who had commenced activities without an EC to cure the default by an ex post facto clearance. Being an administrative decision, it is beyond the scope of Section 3 and cannot be said to be a measure for the purpose of protecting and improving the quality of the environment. The circular notes that there were defaulting units which had failed to comply with the requirement of obtaining an EC as mandated. The circular provided for an extension of time and inexplicably introduced the notion of an ex post facto clearance. In effect, it impacted the obligation of the industrial units to be in compliance with the law. The concept of ex post facto clearance is fundamentally at odds with the EIA notification dated 27 January 1994. The EIA notification of 1994 contained a stipulation that any expansion or modernisation of an activity or setting up of a new project listed in Schedule – I “shall not be undertaken in any part of India unless it has been accorded environmental clearance.” The language of the notification is as clear as it can be to indicate that the requirement is of a prior EC. A mandatory provision requires complete compliance. The words “shall not be undertaken” read in conjunction with the expression “unless” can only have one meaning: before undertaking a new project or expanding or modernising an existing one, an EC must be obtained. When the EIA notification of 1994 mandates a prior EC, it proscribes a post activity approval or an ex post facto permission. What is sought to be achieved by the administrative circular dated 14 May 2002 is contrary to the statutory notification dated 27 January 1994. The circular dated 14 May 2002 does not stipulate how the detrimental effects on the environment would be taken care of if the project proponent is granted an ex post facto EC. The EIA notification of 1994 mandates a prior environmental clearance. The circular substantially amends or alters the application of the EIA notification of 1994. The mandate of not commencing a new project or expanding or modernising an existing one unless an environmental clearance has been obtained stands diluted and is rendered ineffective by the issuance of the administrative circular dated 14 May 2002. This discussion leads us to the conclusion that the administrative circular is not a measure protected by Section 3. Hence there was no jurisdictional bar on the NGT to enquire into its legitimacy or vires. Moreover, the administrative circular is contrary to the EIA Notification 1994 which has a statutory character. The circular is unsustainable in law.
Para 22. Mr Kapil Sibal, learned Senior Counsel appearing on behalf of Alembic Pharmaceuticals Limited sought to urge that the EIA notification dated 27 January 1994 contains an omission of the expression “prior” and contrasted this with the EIA notification dated 14 September 2006 which stipulates the requirement of a “prior” EC. This, in his submission, is an indicator that a prior EC is mandatory under the notification dated 14 September 2006 but was not so under the earlier notification dated 27 January 1994. This interpretation was not supported by Mr ANS Nadkarni, learned Additional Solicitor General who categorically submitted that the requirement under the notification dated 27 January 1994 was of a prior EC. We are unable to accept the submission of Mr Kapil Sibal. The terms of the EIA notification dated 27 January 1994 leave no manner of doubt that a prior EC was mandated before a new project was commenced or before undertaking any expansion or modernisation of an existing project. The absence of the expression “prior” in the EIA notification dated 27 January 1994 makes no difference since the words “shall not be undertaken…unless” postulate the requirement of a prior EC. Speaking for a two judge Bench of this Court in Common Cause v Union of India (“Common Cause”), Justice Madan B Lokur rejected the submission which was urged on behalf of mining leaseholders that:
“108… the possibility of getting an ex post facto EC was a
signal to the mining leaseholders that obtaining an EC was
not mandatory or that it if was not obtained, the default was
retrospectively condonable.”
Disagreeing with the submission, the Court held:
“125. We are not in agreement with the learned counsel for the mining leaseholders. There is no doubt that the grant of an EC cannot be taken as a mechanical exercise. It can only be granted after due diligence and reasonable care since damage to the environment can have a long-term impact. EIA 1994 is therefore very clear that if expansion or modernisation of any mining activity exceeds the existing pollution load, a prior EC is necessary and as already held by this Court in M.C. Mehta [M.C. Mehta v. Union of India, (2004) 12 SCC 118] even for the renewal of a mining lease where there is no expansion or modernisation of any activity, a prior EC is necessary. Such importance having been given to an EC, the grant of an ex post facto environmental clearance would be detrimental to the environment and could lead to irreparable degradation of the environment. The concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence including EIA 1994 and EIA 2006. We make it clear that an EC will come into force not earlier than the date of its grant.” (Emphasis supplied)
Para 23. 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. The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision-making process have been completed.
Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of the industrial activity or the expansion of an existing industrial activity are considered in the decision-making calculus. Allowing for an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the environment. In either view of the matter, environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.
Hence, it would be prudent for the Ministry to drop entire para 22 from the proposed notification without further ado, or face the prospect of contempt proceedings.
The Goa Foundation has formulated its above objections and suggestions, and has taken the trouble to submit these prior to 30.6.2020. This is being done under protest. First and foremost, though the Government has put citizens under lockdown due to Covid19 pandemic, it is not willing to give citizens more time to respond to the proposed changes. This is unfair, lacks transparency, bona fides, and is to be roundly condemned. Second, amending the EIA 2006 is not a priority that it must be done during lockdown. It could certainly wait more relaxed days. In fact, the government’s lockdown policy, coming after demonetisation and imposition of GST without planning, have together destroyed the economy far more effectively than any defective environmental legislations can lay claim to.
Our unequivocal demand is that the draft EIA 2020 be scrapped totally. It has not taken into consideration problems highlighted by several authorities relating to the functioning of the EIA procedures. The draft is now so complicated and confusing, it will ensure endless litigation and even greater delays for projects. Its objective – enabling ease of doing business – is extraneous to the EPA 1986. By seeking to allow several dilutions and discount public consultations it is actually contrary to the law and EPA objectives.
Therefore, it is better that your Ministry does a re-think. Simply cancel this draft, and improve the 2006 version – which is easier and better to do. Improve the EIA 2006 by simplifying it. The 1994 EIA Notification, for example, was very simple. It comprised just 3 pages, together with 8 pages of forms and annexures – a total of 11 pages in all. The present draft is 80 pages and project proponents may require the assistance of PhDs. We have in this communication provided constructive suggestions which will take both economy and environment forward, like bringing the members of EAC/SEAC under the definition of “public servants”. Your draft does neither. It simply takes us all, including the environment and public health, inexorably backward.
On earlier occasions as well, when there has been tremendous negative feedback, the Government has simply dropped proposals. We hope that the Government will be sensitive to public opinion, good sense will prevail and it will consent to drop this notification as well.
Yours faithfully,
Dr Claude Alvares
Director
Encl: Executive Summary CAG (2017) on the EC process