Title of the Paper:

A CRITICAL ANALYSIS ON THE IMPLICATIONS ENVIRONMENT

IMPACT ASSESSMENT, 2020.

Under the Sub-Theme of: The Underlying Impediments of EIA.

Authors:
1. *Ashraya. S. Chakraborty. B.A. LL.M. (Ph.D)
Assistant Professor of Law.
Sarada Vilas Law College.
K. M. Puram. Mysuru- 570004
Email: ashrayachakraborty30@gmail.com
Mob: +91 9742260156
(Main Author)

2. **Prof. Dr. Ramesh. B.A. LL.M., Ph.D.

Professor of Law,
Dean, Chairman
Department of Studies and Research in Law,
&
Director,
University School of Law,
University of Mysore.
Manasagangothri, Mysuru- 570006
Email: drramesh53@rediffmail.com

The Full Paper consist in this document is been submitted to ICFAI Law School,

The ICFAI University, Dehradun for a National Seminar on “Environment Impact

Assessment” which is supposed to be held on 02.04.2021 & 03.04.2021

 A CRITICAL ANALYSIS ON THE IMPLICATIONS ENVIRONMENT IMPACT
ASSESSMENT, 2020.

*Ashraya.S.Chakrabarty
**Prof. Ramesh.

Introduction:

Environment Impact Assessment or EIA is a study to predict the effect of a proposed

activity/project on the environment. A decision making tool, EIA compares various alternatives
for a project and seeks to identify the one which represents the best combination of economic
and environmental costs and benefits.

EIA systematically examines both beneficial and adverse consequences of the project and
ensures that these effects are taken into account during project design. It helps to identify
possible environmental effects of the proposed project, proposes measures to mitigate adverse
effects and predicts whether there will be significant adverse environmental effects, even after
the mitigation is implemented. By considering the environmental effects of the project and their
mitigation early in the project planning cycle, environmental assessment has many benefits, such
as protection of environment, optimum utilization of resources and saving of time and cost of the
project. Properly conducted EIA also lessens conflicts by promoting community participation,
informing decision makers, and helping lay the base for environmentally sound projects. Benefits
of integrating EIA have been observed in all stages of a project, from exploration and planning,
through construction, operations, decommissioning, and beyond site closure.

Evolution of EIA:

Environment Impact Assessment is one of the positive policy innovations at the contemporary
for environmental conservation. Environment Impact Assessment as a mandatory regulatory
procedure coined in the early 1970s, with the implementation of the National Environment
Policy Act (NEPA) 1969 in the United States of America. A huge part of the initial development
took place in a few high income countries, like Canada, Australia, and New Zealand (1973-74).
However, there were some developing countries as well, which introduced Environment Impact
Assessment relatively early - Columbia (1974), Philippines (1978).
The Environment Impact Assessment process given a right push after the mid-1980’s. In 1989,
the World Bank adopted the Environment Impact Assessment for major development projects, in
which a debtor country had to undertake an Environment Impact Assessment under the Bank's
supervision

Need for EIA at the Contemporary:

The gas leak in the pesticide plant of union carbide in Bhopal the fire broke out at an oil well in
Assam again in the gas leak in a chemical plant at Visakhapatnam a number of people have lost
their life in this disasters and many people have been affected indirectly if these incidents take
place in a straight manner would an individual ever desire the same disasters to happen nearby
by his or her residence?

After Bhopal gas tragedy in 1984 the Indian government has realized that the existing
environmental laws back then were insufficient if needed to ever such disasters from happening
in the future there was a need for or stronger and more powerful laws this this was the reason the
Indian government came up with the environment protection Act 1986 there was a new process
in the enactment namely EIA environment impact assessment this process is applicable for all
projects in India that is real estate in construction in the territory of India or an infrastructure
project like the construction of a dam or a highway or a coal mine for a chemical plant EIA is
applicable on all of these this process tells us that we should see the impact of any project on the
environment will be if a coal mine is going to be established then how many forest would be
axed in the process? What will happen to the people in the villages nearby? Would they lose
their livelihoods? The positive and negative impacts of the project must be taken into
consideration and the efforts should be made to reduce the negative impact as much as possible
that is to assess the pros and cons of the project, if the ministry of environment and forest feels
that the negative impact are far too adverse then such project should not be granted for clearance.
So, environmental clearance would be granted on the basis of EIA.
A brief Overview the entire process of EIA:

1. There is a process of selection choosing where a coal mine would be established

2. Then the environment impact assessment would follow
3. An NOC no objection certificate would be applied for
4. A public hearing would be conducted the public would be asked the opinion based on it,
a report will be taken, the report would then be passed on the environmental appraisal
committee e which is a committee of experts and scientists. They would judge whether it
could be better to grant clearance to establish a coal mine in that place. Whether the
negative impacts are too many or if they suggestions to reduce that negative impact by
seeking any alternative suggestions.

FLOWCHART OF THE PROCESS OF EIA:

SITE SELECTION

CONDUCT EIA

NOC APPLICATION

PUBLIC HEPUBLIC HEARING

SUBMIT REPORT

EXPERT APPRAISAL COMMITTEE

For instance: The people living in the villages nearby could be provided with other means of
livelihood and to compensate for the deforestation trees would be grown somewhere else.
This committee it will decide and put forth the suggestions before the applicant company who
intends for a coal mining project and then the project would be accepted and the environmental
clearance would be granted by the ministry of environment.

Weak Implementation:

The above mentioned process do sound perfect, but in reality, the implementation is not that
effective there is a lot of shortcomings in this law or and it has been grossly misused as well.
Many cases have been observed where in a coal mine or a power plant has been constructed
without conducting public hearings.

In Chhattisgarh, steel and power limited plant was established and the public hearing was not
conducted in a proper manner.1 In other cases public hearings are not conducted by the company,
but the company itself sends its own people to threaten people speaking up against the project. In
some cases the EIA reports are fake studies were not conductor properly

And this is exactly why the disasters like Visakhapatnam gas leak (2019). In Visakhapatnam gas
leak case the plant had not been granted environmental clearance 2 despite of that the gas plants it
was in operation.

The story behind the fire in the oil well in Assam 3 was the public hearing was not connected for
this project the project hide violated an alarm in the loss and despite of died it was in operation.

1
Violence during the public hearing for Jindal group's coal mine in Raigarh district of Chhattisgarh and ensuing
protests by tribal people are an indication of the threat the project poses to the people and the environment. And it is
not just perceptional; the project's environment impact assessment (eia) report layed the foundation of doubts.
Available at: https://www.downtoearth.org.in/news/eia-for-jindal-coal-mine-in-chhattisgarh-ignores-threats-4169
Visited on 17.02.2021 at 03:26. P.M
2
LG Polymers had purchased the plant from McDowell & Company in 1997. To expand their operations, the
company had applied for an environmental clearance for the plant from the Andhra Pradesh Pollution Control Board
in May 2019. According to the application, the company wanted to up its production capacity of polystyrene from
415 to 655 tonnes per day. The unit also reprocessed primary plastics into engineering plastics.A possible reason for
the May 7 leak accident is that the plant may not have stored styrene gas at the right temperature, causing pressure to
build up within the chamber, followed by a valve failure and then leak. The plant had been shut for over a month
because of the national lockdown. availabe at https://thewire.in/government/vizag-styrene-gas-leak-lg-polymers-
environmental-clearance. Visited on 17.02.2021 at 03:20. P.M.
3
Public hearings and a detailed environmental impact assessment (EIA) plan were mandatory for getting approval to
carry out any oil and gas exploration activity near eco-sensitive zones until the Union environment ministry tweaked
this norm in January this year, exempting oil and gas firms, looking to conduct exploratory drilling, from seeking an
environmental clearance. The Assam State Pollution Control Board on Friday issued a notice to the oil major over
alleged violations of green norms, directing it to close down all production and drilling operations in its Baghjan oil
field. Available at https://thewire.in/environment/exclusive-oil-india-skipped-public-hearings-before-expanding-
drilling-in-assams-baghjan . Visited on 17.02.2021 at 03:22. P.M.
So it can be really seen that these loss will not be implemented in a sound Manner, which leads
to disasters like these. There is no doubt about that the fact of the law regarding the environment
impact assessment needs to be stronger and its implementation ne needs to be strengthened
further at the present today in India. On the contrary the actions have gone hay- wire and the
environment impact assessment 2020 it has been just on black and white.

EIA draft, 2020:

There was speculation on the change of the process of the EIA 2020, a document of 80 pages
was released with due consideration by avoiding of all environmental. This draft entails the
changes in the environmental impact assessment which is the future to be determined/ enacted as
a law. The public had given the time till 11th of August 2020 where the environment impact
assessment draft was prepared in the first week of the July 2020.

There were several issues with the new draught of environmental impact assessment 2020
instead of making environment protection act stronger, the new draught actor contrary to it so
that it all the industries are easily be able to exploit and this will cause the disaster that at the
present day and to multiply in the future.

Issues in EIA, 2020:

1. There is a clause of "post facto clearance" in the draught that is for instance:
i. A project has already started construction somewhere without environmental
clearance then it is not subjected to any violation of the environment impact
assessment rules 2020.
ii. A project is already in operation somewhere without environmental clearance then
this 1 as well there will be no issues on this regard the project can get
environmental clearance later. this will be extremely dangerous on the part of the
draught rules, by coating the gas leak in the Visakhapatnam at the beginning of this
article, the chemical plant involved in that case was operating without and
environmental clearance. As for the new draught that would have been completely
accepted by law. If given a thought a coal mine is being constructed after clearing
of the forest and the authorities have accepted on it, the coal mine company can get
the environmental clearance later.
 iii. In the case of Alembic Pharmaceuticals Limited v. Rohit Prajapati & Ors. 4
Supreme Court of India had passed a judgment declaring the post facto clearance is
a wrong approach and that provision of law should not be enacted.
2. The time for the public hearing had been reduced. Earlier it was 30 days designated for
the public hearing in the new draught it has been reduced to 20 days only. In page number 47
of the draught it is clearly stated in the last line of the point number 3.1 as "a minimum notice
period of 20 days shall be provided to the public for furnishing their responses for a project".
Now it has been reduced to 20 days, for instance: a large dam is being constructed, the
construction might take up to the period of 6 to 7 years and yet providing A period of 20 to 30
days two villagers to assess the negative impacts of it?5

It is a short window for them to do that it and put their points before the authorities.

3. Exemption from public participation:

If a project violates an environmental law, then the general public has no right to point out the
violation. This violation can be revealed by the violated himself are the concerned authorities.

For instance: if a coal mine is constructed in the middle of the forest after clearing of the forest
(deforestation) a coal mine can be built in the middle of the National park which is exactly a
violation of environmental law.6

The public sees it happening, but they can't do anything, it can be said as the public has no right
to point out that violation and this violation can be revealed by the violet himself. So anyone can
themselves state that they are doing legal wrong by constructing a coal mine and royalty
4
MANU/SC/0353/2020.
5
The new draft Environment Impact Assessment (EIA) 2020 proposed by the Union government is a regressive
departure from the 2006 version that it seeks to replace. It is an attempt to weaken environmental regulation and
silence affected communities.The draft seems to favour the industries and seems to be largely neglecting the balance
between sustainable development and environment protection. The Union government, on the contrary, argues that
the new draft will reinforce transparency and expedite the process. Available at:
https://www.downtoearth.org.in/blog/environment/why-draft-eia-2020-needs-a-revaluation-72148. . Visited on
17.02.2021 at 03:38. P.M.
6
In February 2018, when Expert Appraisal Committee examined an expansion proposal by Mahanadi Coalfields
Limited, a coal mine in Sundargarh, it noted that there is “high pollution load” in the area. It also mentioned that the
public hearing was not conducted properly. Despite this, no further inve properly. Despite this, no further
investigation was conducted andstigation was conducted and a recommendation to give clearance was issued in the
national interest. Available at: https://environmentclearance.nic.in/writereaddata/Form-
1A/Minutes/07062019WALZQSQ8FinalMoMof45EACMeeting.pdf. Visited on 17.02.2021 at 03:42. P.M.
violating the laws or all the authorities can point that out. In page number 29 point number 22
"the cognizance of the violation shall be made on the suo Moto application of the project
proponent" Suo Moto application means that the person working on the project can himself point
out the violation or it can be done by the concerned authority.

The complete Malarkey that they are basically expecting that if someone has committed a theft,
then the thief himself can say that he has committed that left nobody can point it out.

4. Strategic Exemptions:

Until now any project that was concerned with National defense or security, then that project
was not put up for the public hearing and the information related to it was not made public which
is correct because it is not necessary e in some important matters that concern to the national
security. But it is added an extra line in this new draught in in page number 9 point number 7 that
"all projects concerning to National defense and security e for involving other strategic
considerations as determined by the central government". The next part is problematic. The
strategic development is defined in the draught as the public information regarding that would be
revealed by the government and no public hearing would be held.

For instance: if someone builds a coal mine in the Ranthambore park and the public as why that
is happening and ask for details. It's up to the government to decide what is strategic and what
isn't, even if it doesn't concern national security.

The government has defined several projects that would be exempt from public consultation
incorporated in page number 19 point number 2 states that "public consultation is exempt from
the following:-

i. In point number f that includes linear projects in border areas. If I looked at the
definition of the border areas on page number 3 point number 6 which states that
border area means area filling within 100 KM aerial distance from the line of actual
control with bordering countries of India. So, basically in the entire region of the
northeast India there would be almost no public consultations and it is already an
extremely sensitive part of the country e and there are many forests in northeast
India that have not yet been cleared and still remains untouched. Now those forests
 would be endangered because of this. The government would no longer consult
public in those areas.

Now the assessment policy is still in the stage of draught the government can amend its proposed
the draught has received 17 lakh comments and the majority of the draught has received 17 lakh
comments and the majority of the governments were focusing on the violation of environment
law was seen as development.7

Conclusion:

At the end of the day, this is not something that concerns only one or two people or only one or
the other political party. This is something that concerns every person living in this country.
Tomorrow disaster like the ones which is mentioned earlier in this article can also happen right
outside of our houses. When forest in the country are cleared, when the air gets polluted it affects
to all the human beings, it would ultimately e effectors for sure. The draft notification of the
environment impact assessment 2020 is certain to cause serious written regarding the
environment security e and ecology as well. The environment impact assessment 2020's draft
notification does not adhere to the parent legislation that is environment protection Act 1986 nor
does not go hand in hand with our country's commitments under the various international
agreements and conventions.

Reference:

1. Divan Shyam, Rosencranz Armin, Environmental Law and Policy in India: Cases,
Oxford; Edition, 2002.
2. Prof. P.Leelakrishnan Environmental Law in India Lexis Nexis Butterworth India; 2018th
edition.
3. Shibani Ghosh Indian Environmental Law: Key Concepts and Principles The Orient
Blackswan; First edition (1 January 2019)
4. R.R. Barthwal Environmental Impact Assessment The Orient Blackswan; First edition (1
January 2019)
5. John Glasson and Riki Therivel- Introduction To Environmental Impact Assessment
Routledge 2019
6. Environment Impact Assessment, 2020. MINISTRY OF ENVIRONMENT, FOREST
AND CLIMATE CHANGE New Delhi, the -----March, 2020

7
The draft EIA notification 2020 foregrounds the ‘ease of doing business’, diluting the existing consultation
process. Where does this fall in the balance between constitutionality, environment protection and economic
growth?. Available at: https://www.livemint.com/ Visited on 17.02.2021 at 03:48. P.M.