ENVIRONMENT IMPACT ASSESSMENT

The modern technological state intensifies the conflict between environmental values and
developmental needs. Legal strategies are necessary to reconcile this conflict and to
augment sustainable development. Environmental Impact Assessment (EIA) is an
instrument of reconciliation. The Council on European Economic Committee, in their
directive to the member states, highlights the objectives of EIA in the following words:
1) The effects of a project on the environment must be assessed in order to take account
of the concerns to protect human health,
2) to contribute by means of a better environment to the quality of life,
3) to ensure maintenance of the diversity of species and
4) to maintain the reproductive capacity of the ecosystem as a Basic resource of life.

 PREVENTION BETTER THAN CURE

It is essential that the consequences of projects, plans or policies at different levels be
assessed before they are executed. EIA examines these consequences and predicts future
changes in the environment. It guides administrative agencies and balances conflicting social
values and environmental quality. It helps them to make the best choice among various
available options. Where during assessment, a development project, plan or policy is found
likely to result in adverse environmental effects, it is either modified, or abandoned. EIA
foresees and avoids potential dangers. According to it, the best environmental policy is rather
to prevent adverse impact than to try and counteract it subsequently. Prevention is
ecologically kind, and also economically practical. Prevention is better than cure and, in
many cases, cheaper.
 COMPLEX QUESTIONS
EIA involves the application of different types of knowledge and expertise. It is a multi-
disciplinary process, resolving disputes among wide-ranging and conflicting interests in
society. EIA has to encounter various stages of complex questions.
 To begin with, a preliminary study is made to find out whether a project causes
significant adverse effects. If the project causes such effects, EIA becomes necessary.
If not, assessment is not needed. The next stage is to examine whether there are
secondary effects of socio-economic importance, such as concentration of
population, loss of job opportunities and shrinking of civic amenities.. The third
stage involves determination of the cumulative effects of a project, which is another
substantive issue. The impact of an individual project may appear to be harmless in
the beginning. Over a period of time, when more resources are pumped into the
venture, the cumulative effects can be totally different . The fourth question relates
to the possibility of a project having an impact across national borders. Every nation,
in exercise of sovereign powers to exploit its resources or to implement
developmental policies, has to take particular care not to damage the ecological
security of a neighbouring country.
On the basis of a scrutiny of the practices followed by different nations, EIA may be
classified into two categories,
i.e., THE MANDATORY MODEL AND THE DISCRETIONARY MODEL.
Mandatory model
the scope, nature and limits of discretion
and procedures for ELA are governed by a
specific legislation or delegated legislation.
 Power coupled with duty is the
most salient feature of the
mandatory model of EIA. The
decision-making agency is obliged
to study the impact of a
development proposal before it is
approved.
 This compulsion makes the agency,
public or private, initiating a
proposal, to apply its mind to
various factors and formulate an
environmentally sound project.
 This in turn compels the projects
proponents and the decision-
making agency to prepare a report
on environment impact, which
includes cumulative and indirect
effects.
 The report is a guarantee for the
right to information and a basis
for proper impact assessment.
 It affords members of the public,
experts outside governments and
environmental groups of the land,
an opportunity to express their
views on the merits and demerits of
projects
 . It serves notice of environmental
consequences. This facilitates
verification of the genuineness of
the decision-making process, and
leads to thorough analysis of
projects.
Discretionary model
In the discretionary model, these matters are
left to be decided by the administrative
agencies.
 the discretionary model does not
derive strength from a law.
 It depends on the discretionary
powers of the administration. It is
said that this model exhibits
flexibility and maintains a
harmony between developmental
needs and environmental values: It
represents a viable mechanism with
which experts can make a choice
from available alternatives. The
administration can take into
account the exigencies of a
particular project. free from the
pressure and tension imposed by
an enacted law or judicial dictate..
Public participation is neither
allowed as a matter of routine nor
can it be demanded as a right; it is
an exercise conditioned and
allowed by administrative
expediency and requirement. The
decision-making agency is in a
position to keep over-enthusiastic
environmentalists and activists at
a distance and skilfully prevent
them from placing hindrances in
the path of development. What
reign supreme in this model are
executive policy, administrative
discretion and political expediency.
 Example:
Bhopal: Victim of a Discretionary Model
 The Bhopal gas tragedy is said to be
the worst industrial disaster of its
kind in human history. When a
licence was applied for and the
 carbide plant was about to start
operations, numerous factors seem
to have been overlooked For ignored
there were bungalows near the site, a
housing estate was being built close
by, and the Bhopal railway station,
the centre of hectic commercial and
trading activities, was only three
kilometres away. Many agencies had
processed the application. They did
not seem to have been concerned
about future effects, ie., whether the
site was suitable, whether safety
mechanisms were proper and
whether the possible socio-economic
impact was insignificant Bhopal gas
leak is a horrible example of a
disaster that occurred due to absence
of a prior study of the socio-
economic impact.
 It was alleged that approval was
given to a plant, whose design was
defective from the standpoint of
safety, and that a project of identical
design had reportedly been rejected
by Canada. Moreover, there were
reports of several accidents. Even
this did not make the authorities
vigilant enough to take
precautionary measures. Secrecy
shrouding the working of the plant
in case e of information and absence
on safety measures to of accidents
had frightening consequences" after
the tragedy. Even the doctor in the
carbide factory hospital did not
know the antidote to methyl
isocyanate (MIC) poison.

 The Common Law does not allow

courts to enter the substantive
domains of executive discretion,
unless it is exercised mala fide,
against law or founded on irrelevant
considerations.

 On the contrary, procedural
irregularities and lapses in the
administrative process are faults
that courts always deal with
 firmly.
 Emergence of public interest
litigation (PIL) fashioned new
perspectives and generated
immense judicial concern.
 Appointment of expert commissions
and committees to examine the
environmental consequences of
actions already approved by
government and application of the
feedback received from their studies
in judicial decision signify
innovative judicial strategy that had
counter balanced, to some extent, the
absence of a meaningful impact
study.

Eg. EIA under NEPA, in force in the USA, In one case, the Supreme Court followed
is the best illustration of a mandatory model this method and held that indiscriminate
of EIA mining had caused ecological imbalance in
the Doon valley and hence, the operations
were to be closed.
In another case, hazardous industries near
the capital city of Delhi were found to be a
danger and the court asked them to be
shifted to distant locations."
In still another case, functioning of tanneries
identified by experts as a hazard to
groundwater was ordered to be stopped,
unless they opted for common treatment
plant.
The courts used to give occasional warnings
that closure orders would be issued if
treatment plants were not set up.
In cases of obvious violations, they
cancelled licences. In a few cases, they sent
projects for further study and review before
implementation.
ADVANTAGES: public participation and ADVANTAGE: Quick, expert and timely
judicial review decision-making is the advantage of this
DISADVANTAGES: too lengthy, model.
cumbersome, unintelligible, DISADVANTAGE: EXPERTS may fall
environmentalist may delay development by prey to various kinds of bias and prejudices
false pleas of defects.it may impose instead of being committed to
procedural burden. It may lead to flood of environmental and social values. Reasons
objection before decision making for decision may not be disclosed. Interest
authorities, increase in litigation before of vulnerable groups may be disregarded.
courts, and thus delay in developmental Alternative opinions may be overlooked.
process.
EIA NOTIFICATION 1994
A notification was published in the year
1994 with provisions for central clearance
or projects listed in the schedule. The
notification was not applicable to most of
the projects if the quantum of investment
were below the threshold limits
The applicants for new projects or for
modernisation of existing industry were to
submit an EIA report along with the
management plan.
A committee of experts would evaluate and
assess them and make recommendations
based on a technical assessment of the
document and data furnished.
. In 1997, an amendment incorporated
public inquiry into the process. However,
there was a provision for rapid EIA. This
would be done on an EIA report submitted
by the project proponent and based on one
season data. A detailed EIA report could be
submitted and evaluated later if the
assessing agency so desires.
EIA NOTIFICATION 2006
The EIA Notification 1994 gave way to a
notification in 2006 with a fundamental
change.
Both the Central agency and the state
agency are given the power to make
impact study for projects of separate types
with prescribed threshold limits.
MoEF and the State Environment Impact
Assessment Authority (SEIAA) are the
regulatory authorities to render clearance at
the Centre and the states respectively, All
decisions of the state authority should
ordinarily be unanimous.
The notification" provides for prior
environmental clearance before
undertaking projects and activities
scheduled therein. Expansion or
modernisation of existing projects or
activities requires clearance. Any change
in product-mix in an existing
manufacturing unit beyond the specified
range also needs an impact study.
The projects or activities are categorised
as "A" and "B" in the schedule. This
categorisation is based on the spatial extent
of potential impacts and potential impact on
human health and natural and manmade
resources.
Category "A" projects and activities
require clearance from MoEF on the
recommendations of an Expert Appraisal
Committee (EAU) coleuruted by the
Central Government. Category "B"
projects and activities require prior
clearance by the State Environment
Impact Assessing Authority (SELAA) on
the recommendation of the State
Environment Appraisal Committee
(SEAC). However, in the absence of duly
constituted SELAA or the SEAC, the
central agencies shall appraise and assess
category "B" projects treating them as
category "B" projects. Interestingly, the
state authorities are constituted by the
Central Government.

1) NEW PROJECT: After identifying the

prospective site but before
commencing any construction
activities or preparing land at the
site, the project proponent makes
the application for prior
environmental clearance.
A copy of the pre-feasibility project
report should accompany the application.
In the case of construction projects or area
developments or townships, the conceptual
plan is to be given instead of a pre-
feasibility report."

2) Screening:- The SEAC screens and

examines the nature, activities and
location specificity of the category
"B" projects to determine whether
they do require further studies for
preparation of an EIA prior to the
grant of clearance. The projects
which require EIA Report will be
termed as "B1" projects, and those
that do not require EIA report are
called "B2" projects."
Thus, screening is only for projects
coming under the category B1
needing state clearance.
B2 projects shall be appraised on the basis
of pre-feasibility report and other relevant
documents accompanying the application.

3)SCOPING: Scoping is needed for both

category "A" and "B1" projects. The
EAC or SEAC will determine detailed
and comprehensive terms of reference
(TOR) addressing all relevant
environmental concerns for the preparation
of EIA report. This is done on the basis of
information in the application form, TOR
proposed by the applicant, and on other
available information including those
gathered by the sub-gr sub-group of EAC
or SEAC on a site visit, if made.
Scoping is not necessary in the case of
building/construction/area developing
projects because conceptual plans
accompanying them are available for these
projects. TOR shall be conveyed to the
applicant by the EAC or SEAC within 60
days of the receipt of application.
In the case of 50 MW hydroelectric
power generation projects, TOR shall be
conveyed along with the clearance for
pre-construction activities.

TOR suggested by the applicant shall be

deemed to be final if the EAC or SEAC
does not convey its finalised TOR within
60 days of the receipt of the application
for clearance. Even at the stage of
scoping, the regulatory authority
concerned can reject environmental
clearance on the recommendation of the
EAC or SEAC." Significantly, a reasoned
decision in writing rejecting clearance
shall be communicated to the applicant
within 60 days of the application,

4. Public Consultation : "process by which

the concerns of local affected persons and
others who have plausible stake in the
environmental impacts of the project or
activity are ascertained with a view to
taking into account all the material concerns
in the project or activity design as
appropriate"

Certain projects and activities require public

consultation while some others are
exempted.
The exempted projects are:
(a) Modernisation of irrigation projects;
(b) Expansion of roads and highways which
do not involve any further acquisition of
LAND
(c) All building/construction projects/area
development projects and townships;

(d) All category "B2" projects and activities;

(e) All projects or activities concerning

national defence and security or involving
other strategic considerations as determined
by the Central Government;
A public hearing and obtaining the
responses in writing from other concerned
persons having a plausible stake are the two
components of the public consultation.
The regulatory authority or the board shall
place the summary of EIA report on its
website or on other appropriate media.
Confidential information such as that
involving intellectual property rights shall
not be placed on the website. All the
responses shall be forwarded to the
applicant through the quickest available
means.

The applicant can take into account the

above-mentioned responses and make
appropriate changes in the draft EIA and
EMP (Environmental Management Plan).
He can send the final EIA Report to the
concerned regulatory authority for appraisal
and submit supplementary report to public
addressing all concerns.

APPRAISAL
The EAC and SEAC make the appraisal of
all materials and evidences available after
screening, scoping and public consultation.
In this proceeding, the applicant shall
furnish necessary clarifications in person or
through an authorised representative. After
appraisal, the EAC and SEAC make
categorical recommendations to the
regulatory authority, They also make
appraisal of projects or activities, not
required to undergo public consultation.
Where a public consultation is not
mandatory, the appraisal is made on the
basis of materials in application and EIA
report. However, there are exceptions.
Category "B2" projects are exceptions.
Building and construction projects and
township and area development-projects,
coming under items 8(a) and 8(b)
respectively in the Schedule, are also
exceptions. A time limit is fixed for
completing appraisal, i.e., within 60 days of
the final EIA report and other documents.
Then the appraisal report is placed before
the competent authority for final decision
within the next 15 days.

EXPANSION OR MODERNISATION
In the case of expansion or modernisation or
change of product mix in existing projects,
the EAC or SEAC will make the appraisal
within 60 days, decide "on the due diligence
necessary including preparation of EIA and
public consultations" and appraise the
application accordingly for grant of
environmental clearance.

GRANT OR REJECTION
The regulatory authority shall normally
accept the recommendations of the appraisal
authorities and convey its decision to the
applicant within the prescribed time limit. In
cases of its disagreement, the regulatory
authority can ask for reconsideration of the
recommendations and make the final
decision after getting the reconsidered views
of the expert appraisal authorities. Prior
environmental clearance shall be on
stipulated terms and conditions. When the
application is rejected, reasons for rejection
shall be given.
If the decision of the regulatory authority is
not communicated to the applicant within
the stipulated time, the applicant may
proceed as if the environment clearance
sought for has been granted or denied in
terms of the final recommendations of the
expert appraisal authority concerned.
This deemed prior-environmental-clearance
is tantamount to a bouquet stealthily given
to the project applicant by the regulatory
authorities in their sheer negligence or
deliberate disregard of the materials before
them.
On expiry of the period specified, the
decision of the regulatory authority and the
final recommendations of the appraisal
authorities shall be public documents.
POST-CLEARANCE MONITORING
AND TRANSFERABILITY
A post-environmental clearance monitoring
on the basis of half-yearly mandatory
compliance reports by the project
management is a novel feature of the EIA
Notification 2006 Compliance reports shall
 be public documents available on the
website of the concerned regulatory
authority.
The notification specifies that prior
environmental clearance granted to an
applicant may be transferred during its
validity to another legal person on the same
terms and conditions. No reference to the
appraisal authorities is necessary in such
cases.
PROJECTS and Activities Requiring
Environmental Clearance
There are originally 39 categories placed
under eight heads with separate threshold
limits and conditions with which clearance
is to be given.

(a) Mining of minerals.

(b) Offshore and onshore oil and gas

exploration, development and production.

(c) River valley projects.

Thermal plants
Nuclear plants
Manufacturing Fabrication

(a) Chemical fertilisers.

(b) Pesticides industry and pesticide specific

intermediates (excluding formulations).

VALIDITY PERIOD FOR ENV. CLEARANCE

10YRS- RIVER VALLEY PROJECTS

30YRS- MINING

The Narmada's Case: No Re-opening of Pre-EIA Notification Clearance

The EIA Notification 1994 was first examined in Narmada Bachao Andolan v UOI. The
petitioners had prayed for a re-assessment of the project in accordance with the terms of FIA
Notification as the height of the dam Sardar Sarovar Project, if raised at full reservoir level
(FRL) of 455 feet would submerge a vast region under water. They also contended that if
those displaced could not be suitably rehabilitated, the changes in their living habitat would
lead to violation of their fundamental rights under Article 21. The decision to raise the dam
wat alleged to have been made without application of mind.
Court allowed construction of Dam subject to condition that:
1. Proper relief and rehabilitation to be given.
2. clearance granted at every stage by environmental sub group under MoEF.
3. Action plan to be drawn by narmada control authority()NCA)
4. Review committee to meet periodically.
NOTE:see that highlighted terms reflect in your answer