VELLORE INSTITUTE OF TECHNOLOGY

SCHOOL OF LAW

OBSERVATION REPORT ON EIA DRFT- 2020

Submitted to: Submitted by:

Dr.S.Tiwari Mahalaxmi, T. Shanmathi,
Assistant Professor, B.A., LL.B (Hons.),
VITSOL. 20BLA1082.

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CONTENT:
 INTRODUCTION
 COMMENTS
 KEY REQUIREMENTS OF AN EFFECTIVE EIA
 FACTS OF THE ISSUE
 COMPARATIVE STUDY ON EIA 2006 AND EIA DRAFT 2020
 LEGAL PROVISION INVOLVED IN EIA DRFT 2020
 CRITICAL ANALYSIS
 CONCLUSION
 BIBLIOGRAPHY

INTRODUCTION:
The Environmental Protection Act (1986) and the EIA Notification 1994 & 2006
provided legal checks and balances so that the adverse impacts are minimum when projects
are implemented or modernized. The present draft notification inviting comments from the
public is again a large scale dilution of the earlier notification. The principle aim of the draft
EIA notification 2020 is how not to do an environmental impact assessment. The focus is on
getting an environmental clearance or permission. As said the draft EIA Notification 2020 does
not have any concrete proposal on improving the critical elements of EIA. India is facing
multiple environmental crises and an important act like the EIA should have adopted the
proactive approach learning from the wealth of experience gained during the last few decades.
As such, what has been proposed need to be totally rewritten not just to address the present day
problems but also for the emerging issues in the environment.

OBJECTIVES:
The draft EIA Notification has three main objectives. First, to ensure that most
ecologically destructive activities do not require an environmental clearance. Second objective
is to create broad exceptions for EIA’s such as higher thresholds. Third, to ensure the projects
that require EIA’s are not scrutinized by either the public or experts. There is no evidence that
all these dilution will help achieve economic growth. The simple reason is that even under the
existing EIA 2006 regime, no project is ever rejected. The environmental ministry’s track
record is 100% approval for all projects. And you cannot improve if you are already delivering
100%. The government has created a myth that environmental laws are a hurdle to economic
development, and most people, including the court, happily believe this myth.

COMMENTS:

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RIGHT TO CLEAN ENVIRONMENT IS A FUNDAMENTAL RIGHT:

The EIA notification is one of the most important legal frame-work to operationalize the
Environment Protection Act 1986. Obviously, any revision of EIA notification should ensure
that the proposed revision is an improvement of the existing EIA process addressing its
deficiencies. Various judgments of the Supreme Court have underscored the inseparability of
the right to life with the right to a clean environment. It is in this context that one should
consider the effectiveness of the current and the proposed EIA process to ensure that the
fundamental rights of every citizen to a clean environment is safeguarded.

WORSENING STATE OF ENVIRONMENT DEMONSTRATES INEFFECTIVENESS OF

THE EXISTING EIA PROCESS:

Though some progress has been made in protecting the environment, it has to be
acknowledged that the overall state of environment in the country is far from satisfactory.
Indian cities are ranked very high as regards the level of air pollution and often life comes to a
standstill in cities like Delhi on account of extremely high air pollution. The level of pollution
in water bodies is also very high. Faulty environmental clearance processes have led to
multitude of environmental conflicts imposing high economic and social costs. Notwithstanding
the various provisions in the environmental protection act and EIA notification, environmental
assessments are not carried out systematically. In most cases government departments dealing
with development projects have become the major violators of environmental laws and the EIA
process is often manipulated to fulfill narrow short term objectives imposing heavy
externalities on present and future generations.

URGENCY TO DEAL WITH CRITICAL ENVIRONMENTAL CHALLENGES,

ESPECIALLY CLIMATE CHANGE AND BIODIVERSITY LOSS:

The last couple of decades have witnessed major changes in our understanding of the
environmental issues. Climate changes stemming from increased green- house gas emission
has become the most defining environmental issues facing humanity, unleashing multitude of
natural disaster including cyclonic storms, , droughts etc.., whose frequency and intensity are on
the rise. The sea level rise will result in millions of refugees. Other critical human driven
environmental issues include loss of biodiversity, land degradation and changes in hydrology,
all of which are causing significant loss to society directly. To ensure that human interventions
are not resulting in net welfare loss, the EIA process has to be robust.

KEY REQUIREMENTS OF AN EFFECTIVE EIA PROCESS:

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 It is in this context that we should consider the proposed EIA 2020 notification
specifically looking into whether it will improve the objectives of the Environmental Protection
Act 1986. The proposed 2020 notification gives inadequate attention to key requirements and
much of the emphasis is to cut short the time and to liberalize the clearance process. In other
words, it is largely a “pro-industry” process neglecting the critical environmental issues. Any
credible EIA process should fulfill the following conditions:

1. It should be totally evidence-based drawing upon the best available science and vast
experience of implementing projects within and outside the country.
2. The process of EIA should be highly transparent so that people have trust and faith
in the process and the institutions involved, thus avoiding costly conflicts at a later
stage.
3. Participation of important stakeholders and any dilution of this will have significant
negative impacts on project implementation and operation.
4. Accountability and due diligence on the part of those involved in the EIA process
including those preparing the EIA report.

In the context of increasing environmental conflicts, EIA should ensure that projects are
scrutinized thoroughly and decisions are science based. While there is a strong justification for
revising the environment protection rules giving die considerations to the major changes that
have taken place within and outside the country, the proposed notification is at best undertaking
incremental tweaking of the 2006 notification largely focusing on speeding up the
environmental clearance process. It fails to chalk out a very effective and robust path for the
environmental assessments taking into account the changes that have been taken place in the
recent years and the long term issues like climatic change, failure to reverse air and water
pollution, and the increasing severity and frequency of natural disasters.

FACTS OF THE ISSUE:

The proposed draft notification seeks to replace the present rules. It is important to
note that the EIA is the process responsible for giving the environmental clearance or
environmental approval to developmental and industrial projects. This has drawn heavy
criticism for the unnecessary dilution for the current process and for ensuring a smoother and
swifter way for industries to secure environment clearance and violate rules. After much
pressure from activist and opposition, the date for public comments and changes was extended
to August 11. Considering the COVID-19 pandemic, calls have also been made further
extension of three to four months keeping in mind the serious repercussions that the proposed
notification would have on the environment.

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COMPARATIVE STUDY ON EIA 2006 AND EIA DRAFT 2020:
When a comparative study was made on the EIA 2006 and EIA draft 2020, we could
find that EIA 2006 is far better than EIA draft 2020. The comparative study is as follows,

S.NO PROJECT EIA 2006 EIA DRFT 2020

1. Mining More than 50 hectares More than 100 hectares

requires environmental requires environmental
clearance. clearance.
2. Hydro-electric More than 50 megawatt More than 75 megawatt
power requires environmental requires environmental
generations clearance. clearance.
3. Oil and gas All projects require No project requires
exploration environmental clearance. environmental clearance.
4. Irrigation Irrigation doesn’t require More than 50,000 hectares
environmental clearance. of cultivable land requires
environmental clearance.
5. Coke oven plant More than 2,50,000 tons per More than 0.8 million tons
annum requires per annum requires
environmental clearance environmental clearance.

LEGAL PROVISIONS INVOLVED IN EIA DRAFT 2020:

The legal question involved in this issue is section 3 of the Environment Protection
Act of 1986. Under Section 3(1) of this Act, the Central Government is empowered to take
measures for purpose of protecting and improving the quality of the environment and
preventing abating and controlling environmental pollution.

In Alembic Pharmaceuticals Ltd. V. Rohit Prajapati, the Apex Court noted that, 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. Following this line of thought, the EIA 2020 draft notification is in
contradiction to the powers vested to the Central Government.

Another problematic change in the proposed draft is that it allows projects to receive
post-facto clearances, which means that a project which is in violation with Environmental
Protection Act provisions can later apply for clearance. In a recent April order, the Supreme
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Court has stated that, “ex post facto clearances are unsustainable and is null and void”. It
also considered it to be against sustainability and the precautionary principle. Additionally, in
the case of Common Case V. Union of India, the Supreme Court opined that the concept of an
ex post facto or a retrospective environmental clearance is completely alien to environmental
jurisprudence including EIA 1994 and EIA 2006.

The procedure for public consultation for the new draft EIA has also been marked by
controversy as mentioned earlier. It is pertinent to note that the requirement of an ex post facto
public hearing was introduced by an amendment in 1997 to the 1994 EIA. The case of Lagarge
Union Mining Pvt. Ltd. V. Union of India upholds the legality of an ex post facto public
hearing.

CRITICAL ANALYSIS:
According to the United Nation Environment Program (UNEP), EIA is a tool used to
identify the environmental, social and economic impacts of the project. It is crucial to analyze
the potential impact of the draft EIA 2020 to better understand the trade-off between the
environment and development. While development does not necessarily come second to the
environmental concerns, the environment cannot be sacrificed in a relentless, indiscriminate
pursuit of development. Ideally, the EIA notification rules should maintain a balance between
these two pursuits.

Another alarming proposal is that it gives exemption to a long list of projects from the
purview of EIA, which limits public involvement. This includes any venture which the
government deems as “strategic projects”. According to the draft, “no information on such
projects shall be placed in the public domain”. This list also covers all inland waterways and
national highways projects. All construction projects up to 1,50,000 square meters shall also
be relieved from the EIA’s. Moreover, the draft notification also says that cognizance of a
violation will only be considered through a report by only the Government or the project
developer, or on a suo motu basis. It is difficult to understand how this is effective in the
protection of the environment.

It is interesting to note that the EIA process was a result of the 1992 Rio Declaration on
Environment and Development, which states that environmental issues are best handled
through the participation of all concerned citizens and that States must provide an opportunity
to citizens to participate in the decision-making processes. Similarly, in the Samarth Trust
case, the Delhi High Court considered EIAs as “a part of participatory justice which gives voice
to the voiceless”.

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 Lest we forget, Article 51A (g) of the Indian Constitution dictates that it is the
fundamental duty of every citizen “to protect and improve the natural environment
including forests, lakes, rivers, and wild life, and to have compassion for living creatures.”
Another cause of distress is that the 2020 draft does not address any of the issues which have
troubled the earlier EIAs. Such as:

 the poor manner in which public hearings are conducted,

 the lack of cumulative Environment Impact Assessments,
 lack of transparency in the finalization of the EIA Reports,
 failure to assess, monitor lack of compliance or to hold violators accountable

It is feared that the proposed EIA notification will compound these issues and intensify the
rate of ecological degradation in our country. India has slipped 36th place in the 2018
Environmental Performance Index, in the span of just 2 years, placed at 177 out of 180
countries. In 2020, it is placed at the 168th position.

CONCLUSION:
Environmental regulation must balance damage to the environment with sustainable
development and possible benefits, but the new notification focuses more on the benefits and
needs some serious reconsideration. The Ministry, instead of reducing the time for public
consultation, should emphasize on ensuring access to information and awareness about the role
of public hearing. The draft EIA notification needs wide and deep deliberation before it is
finalized. The provisions which are pro-development need to be tempered, considering that the
collapse of natural infrastructure will be suffered by generations to come. 

BIBLIOGRAPHY:
 EIA draft 2020- environmentclearance.nic.in
 Stop the dismantling of environment rules- Hindustan Times
 How EIA thumbs its nose at environment – The Economic Times
 Supreme court weekly roundup – Law Life
 Reading the draft EIA – Indian Express