The Environmental Impact Assessment Draft – A Future Predicament

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    Bhopal Gas Tragedy, 1984

    2nd– 3rd December 1984, the day when approximately 10,000[1] lives were lost and at least the lives of 6 Lac people were disrupted, this incident took place due to a gas leak at the Union Carbide India Ltd. Pesticide plant in Bhopal, Madhya Pradesh. It is considered to be one of the world’s worst industrial disasters. Because of this tragedy, the Indian government understood that there is an urgent need for new environmental laws.

    Environmental Protection Act, 1986

    After the dangerous tragedy took place the Indian government implemented the Environmental Protection Act[2] (EPA), 1986 under article 253 of the Indian constitution. The main objectives of EPA, 1986 were to:-

    1. To implement the decisions made at the UN Conference on Human Environment that was held in Stockholm in the year 1972.
    2. To take strict actions against whomsoever tries to harm the environment.
    3. To protect and improve the environment.
    4. To give all the powers to the central government, to take the required measures for the protection and welfare of the environment.

    Environmental Impact Assessment Act

    Under section 3 of the Environmental Protection Act, 1986, an Environmental Impact Assessment Act (EIA) was issued to impose restrictions on setting up new projects or expansions or any existing projects. The EIA process [3] includes:-

    1. Site Screening – The project plan is screened to understand the scale of investment required, the location was chosen and the type of development. And the most important question that should be asked is that would the effects of this development be significant?.
    2. Scoping – This step helps in identifying the project’s potential impacts, the zone of impacts, and the need for monitoring, it identifies the effect on the air quality, soil, water, etc.
    3. Impact Prediction – This step is a way to predict the environmental consequences that could occur due to the significant aspects of the project and its available alternatives. The scale and severity of the impact are determined by whether it is reversible or irreversible, if it is reversible then it is considered as a low impact and if irreversible then the impact is considered to be high.
    4. Mitigation – This step is the most important step of the EIA process. Earlier steps reveal the damaging effects upon the environment because of the project, and the Mitigation process focuses on taking measures to reduce or remove the environmental impacts of the project and improve the scope of the benefits emerging out from the project.
    5. Public Hearing – After the completion of the EIA report, the law requires that the public must be informed about the project and should be consulted on the development of the project. Anyone who is likely to get affected due to the project is entitled to come forward and have access to enter the kind of effect they are going to face in the executive summary of the EIA report. The affected person can be a local resident, local association, or any environmental group.
    6. Decision-Making – The final report is submitted to the expert appraisal committee which includes scientists and environmental experts who study the report and understand the positives and negatives of the project. If the project’s positives are more than negatives and are sustainable, then NOC is awarded; and on the contrary, if the negatives of the project are more, and the environment is badly affected, and there is no alternative to mitigate its negatives, then the project is rejected.

    Implementation of EIAs

    After reading the whole process, many of us would be thinking on line that it is such a great process, and by having such great environmental law our environment will be protected and tragedy like the Bhopal gas leak will never happen again.

    However, the problem associated with these laws is that they lack implementation and there is a huge discrepancy between the law on paper, and the actual result. These laws are theoretically very good to solve the existing problem, but the poor execution of these laws defeats the very purpose of it. There have been numerous instances, where it lacked the desired implementation. Some of which are:- 

    1. The 2020 Assam gas and oil leak – On 27th May 2020, an oil leak happened in Oil India Ltd’s Baghjan Oilfield operated by John energy Pvt. Ltd. in Tinsukia district, Assam, India. It occurred due to a failing pressure system in the oil well.
    2. Visakhapatnam Chemical Plant Gas Leak –  A major leak from a chemical plant of LG Polymers near Visakhapatnam in Andhra Pradesh took place on 7th May 2020. It affected villages within a five km radius, leaving eight people dead and many people complaining of breathlessness, nausea, and other problems. LG Polymers operated without appropriate environment clearance and has been directed by the National Green Tribunal to deposit an initial amount of Rs 50 Cr as damages.
    3. On 20th February 2020 Jindal steel and power Ltd. violated the norms set by the EIA, i.e., they did not conduct the public hearing properly and therefore went against the rules set by the EIA. The rules mandate that this process should begin before 30 days of the commencement of the project and the summary of the EIA report should be made available to the people at five designated places. Contrary to this, they made the summary of EIA available only at three places.

    These were some examples of how the Indian Government has failed to implement environmental laws. Moreover, after such a big failure in the implementation of these laws a new draft of Environment Impact Assessment is proposed by the union government and this draft can be seen as an attempt to weaken environmental regulation and silence the affected communities.

    The major points of the Draft that are the main point of contention are:-

    •   Post Facto Clearance

    Post Facto clearance is one of the major problems that is weakening the EIA. It states that projects can get environmental clearance post-facto,[4] i.e. a project that has been operating in violation of the EPA act can now apply for environmental clearance afterwards and if any new factory is being set-up, it can start working without environmental clearance and can apply for it later. On 1st April 2020, the Supreme Court held that such clearance is contrary to law and this kind of law shouldn’t be made. 

    •  Exemption from Public Participation

    Page no. 29 point 22 part (a & b) [5]of the new draft says “The cognizance of the violation shall be made on the suo moto application of the project proponent or reporting by any government authority”. It means that the public cannot point out any mistake or wrongful act done by the owner or cannot suggest any changes; it can only be done by the owner himself or by the government officials. Therefore, the public who will be affected by this whole process is kept outside the loop.  

    • Strategic Exemption

    Page no. 9 Point 7 of the new draft says “All projects concerning national defence and security or involving other strategic considerations, as determined by the central government and further no information relating to such project shall be placed in the public domain”. It means that any project information regarding national defence and security will not be available in the public domain which is right but the main problem comes in the second part where it says any other strategic considerations as determined by the central government which means that government can stamp any project as strategic and no public hearing will be done.     

    • Additional Exemption from the public consultation

    Page no. 19 points no.2 of the new draft says “Public consultation is exempted from the following” and the point (f) of the new draft says “All linear projects under item 31 and 38, in border areas”. The definition of Border areas on page no. 3.6 says “Border Area means area falling within 100 km aerial distance from the Line of Actual Control with bordering countries of India”, which means in almost the whole of the North-eastern area, a public hearing will never be conducted. This, in turn, will have an adverse effect on our environment because the North-eastern area of our country is a very ecologically sensitive area, and the forest areas, which are preserved to this date, could be wiped out without consulting the public.        

    • Public Hearing reduced to 20 days

    Page no. 47 points 3.1 last line of the new draft says, “A minimum notice period of 20 days shall be provided to the public for furnishing their response”. Earlier this time period for the public hearing was 30 days which was also less considering the changes nearby people are going to face in their lives due to the establishment of any industry or any such project. Already an unreasonable time period of 30 days has been made more so by reducing it to 20 days. For example, if a big project is going to be made in an area which will take at least 8-10 yrs to be completed, then the people in that area have to assess the positives and negatives of that project on their lives and make their problem reach the government officials in just a span of 20 days, which clearly is not enough.

    CONTEMPT OF COURT- THE LATEST WRANGLE

    These were the major changes that were proposed by the Union government of India and if these changes are made permanent, it will be an inevitable disaster in the future.

    Suggestions

    These changes proposed by the union government shouldn’t be made. In fact, some positive changes should be made in old EIA to make it stronger and environment friendly. Some of the changes could be:-

    •    Public Hearing should be conducted with proper procedure in every project
    •   The time period given to the people of that area where the project is taking place should be increased because 30 days are not sufficient enough.
    •   Any industry or coal mine should not start working without getting environmental clearance.

    These environmental laws need to be strong and ought to have proper implementation strategies because it is really important to preserve our environment. Deforestation in the name of development needs to be stopped and the government should promote sustainable development. Adverse climate change has started and if it continues to rise like this, then we might face even more difficult times than we are facing in the Covid-19 pandemic.

    Endnotes

    [1]https://www.indiatoday.in/india/story/bhopal-gas-tragedy-what-had-happened-this-day-33-years-ago-that-killed-thousands-1099247-2017-12-03#:~:text=Post%2Dmidnight%20on%20December%203,gas%20tragedy%20killed%203%2C787%20people.

    [2]https://www.legalbites.in/environmental-protection-act1986/

    [3]https://www.environmentalpollution.in/eia-2/stages-of-environmental-impact-assessment-environment/4428

    [4]https://www.livemint.com/mint-lounge/features/eia-draft-2020-weakening-an-important-environmental-safeguard-11593611958824.html

    [5]http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf

    BY- Kashish Dhawan | Vivekananda Institute of Professional Studies, GGSIPU, Delhi

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