The Delhi High Court extended till August 11 the deadline for public feedback on the draft Environment Impact Assessment (EIA) Notification 2020. This was after the government had changed the deadline from August 10 to June 30.
The Covid-19 emergency had delayed the publication of the draft in the Gazette by 19 days. So, when thousands emailed to seek an extension to the mandatory 60-day window for public feedback, the Environment Ministry top brass thought it fit to allow another 60 days until August 10.
But Environment Minister Prakash Javadekar set the new deadline on June 30, limiting the extension to only 20 days. This did not go down well with activists who have been pushing for the draft’s withdrawal altogether. Activists moved court, leading to the extension on Tuesday.
Though established to safeguard the environment, the EIA process, argue activists, often achieved the opposite by offering a façade of legal paperwork for a range of de facto concessions enjoyed by industries.
On the other hand, developers complain that the EIA regime dampened the spirit of liberalisation, leading to red tape and rent-seeking. Delay in project clearance during the UPA-II rule became an election issue in 2014 when then prime ministerial candidate Narendra Modi hit out at the Congress by claiming that files did not move in the Environment Ministry till “Jayanthi tax” was paid.
The 2020 draft offers no remedy for the political and bureaucratic stronghold on the EIA process, and thereby on industries. Instead, it proposes to bolster the government’s discretionary power while limiting public engagement in safeguarding the environment.
While projects concerning national defence and security are naturally considered strategic, the government gets to decide on the “strategic” tag for other projects. The 2020 draft says no information on “such projects shall be placed in the public domain”. This opens a window for summary clearance for any project deemed strategic without having to explain why.
Additionally, the new draft exempts a long list of projects from public consultation. For example, linear projects such as roads and pipelines in border areas will not require any public hearing. The ‘border area’ is defined as “area falling within 100 kilometres aerial distance from the Line of Actual Control with bordering countries of India.” That would cover much of the Northeast, the repository of the country’s richest biodiversity.
The two most significant changes in the new draft are the provisions for post-facto project clearance and abandoning the public trust doctrine. Projects operating in violation of the Environment Act will now be able to apply for clearance. It is a reiteration of a March 2017 notification for projects operating without clearance.
All a violator will need are two plans for remediation and resource augmentation corresponding to 1.5-2 times “the ecological damage assessed and economic benefit derived due to violation”. For such late applications, a developer will have to cough up Rs 2,000-10,000 per day for the period of delay. Consider the impact of this penalty on, say, an illegal sand miner who takes out several truckloads every day.
In an order on April 1, the Supreme Court held “ex post facto environmental clearances” contrary to law. It said: “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.”
Over 500 academics, scientists and researchers from various educational institutes have penned an open letter to the Union environment ministry enumerating their concerns with the draft Environmental Impact Assessment notification 2020, which has drawn ire from multiple quarters for its scheme to ease business by diluting regulations that protect the environment and safeguard the rights of people affected by prospective projects.
The United Nations Special Rapporteurs have raised several concerns about the draft Environment Impact Assessment (EIA) notification, 2020 and have asked the government how its provisions correspond with India’s obligations under international law.
