Draft EIA Notification 2020

▪ The Ministry of Environment, Forest and Climate Change (MoEF&CC) has published
the draft Environment Impact Assessment (EIA) Notification 2020, with the intention
of replacing the existing EIA Notification, 2006 under the Environment (Protection)
Act, 1986. The Key Proposals of the 2020 Draft include:
o Reduced Time for Public Hearings: One of the major steps of the EIA
Mechanism is the public participation. The 2020 draft proposes to reduce the
notice period for public hearings from 30 days to 20 days.
• However, the MoEFCC has claimed it to be “in tune with the times”,
given the growth of internet and mobile telephony.
o Exemption of Projects: Furthermore, by classifying a number of projects into
A, B1 and B2, a host of projects are exempted from public scrutiny.
• Category B2 projects do not require mandatory Environment Clearance
(EC), unlike the Category A and B1 projects.
• Exempted Projects: The projects under this exempted category
include:
• Offshore and onshore oil, gas and shale exploration.
• Hydroelectric projects up to 25 MW.
• Irrigation projects between 2,000 and 10,000 hectares of
command area.
• Small and medium cement plants.
• Acids other than phosphoric or ammonia, sulphuric acid.
• MSMEs in dye and dye intermediates, bulk drugs, synthetic
rubbers, medium-sized paint units.
• All inland waterway projects and expansion or widening of
highways between 25 km and 100 km with defined parameters.
• These include roads that cut through forests and dredging
of major rivers.
• Aerial ropeways in ecologically sensitive areas.
• Specified building construction and area development projects;
built-up area up to 1,50,000 sq. m.
o Post-clearance compliance: It implies that once a project gets approved by the
concerned authority, the proponent projects are required to adhere to certain
 rules laid down in the EIA report in order to ensure that no further
environmental damages take place.
o Annual Submission of Reports: The new draft EIA, proposes the submission
of compliance reports annually whereas as per the 2006 notification, the
compliance report was to be submitted every six months.
• Environmental experts are of the view that allowing a longer period for
filling the compliance report will give an opportunity to project
proponents to hide disastrous consequences, which could go unnoticed.
o Report Prepared Solely by Project Proponents: Meanwhile, submission of
the compliance report will be solely prepared by the project proponents
itself, which, without oversight and review, may lead to inaccurate information
submitted on the project.
o No Public Reporting for Non-Compliance: The EIA Notification 2020
excludes reporting of violations and non-compliance by the public.
• Instead, the government will take cognisance of reports only from
the violator-promoter, government authority, Appraisal Committee or
Regulatory Authority.
o Post-facto Clearance: Another major proposal in the draft 2020 is granting
‘post-facto clearance’ where a project that has been operating without
environmental clearance, can be regularised or allowed to apply for
clearance.
• The judiciary has held, as in the case of Alembic Pharmaceutical vs.
Rohit Prajapati in April 2020 that “environment law cannot countenance
the notion of an ex post facto clearance.”
o Penalty for Firms: Firms found violating the terms of their establishment, if
they have to get the clearance, however, will have to pay a penalty.

Issues Associated

▪ Opens the Floodgates of Violations: The environmental lawyers have argued that the
Post-Facto Clearance of the Projects is likely to encourage industries to commence
operations without bothering clearance and eventually get regularized by paying the
penalty amount and thus opening the floodgates of violations.
 ▪ Strengthens the Government but Weakens the Public: The draft offers no remedy
for the political and bureaucratic stronghold on the EIA process, and thereby on
industries.
o Instead, it proposes to bolster the government’s discretionary power while
limiting public engagement in safeguarding the environment.
o Also, the draft, by limiting public consultation, is not in consonance with
protecting the rights of tribals, among others.
▪ Easy Clearance for ‘Strategic’ Projects: While projects concerning national defence
and security are naturally considered strategic, the government gets to decide on the
“strategic” tag for other projects.
o The 2020 draft says no information on “such projects shall be placed in the
public domain”. This opens a window for clearance for any project deemed
strategic without having to explain why.
▪ Reduced Time means Reduced Awareness: The reduced notice period for public
hearing from 30 days to 20 days will only make it difficult to study the draft EIA report,
more so when it is not widely available or provided in the regional language.
o Moreover, the reduction of time would particularly pose a problem in those
areas where information is not easily accessible or areas in which people are not
that well aware of the process itself.
▪ Non-Conformity to International Frameworks And Conventions: India’s has been
an active participant of the United Nations (UN) Conference on Human,
Environment and Development in Stockholm in 1972, the Rio Summit in 1992, the
United Nations Framework Convention on Climate Change (UNFCCC) and the
Paris Climate Accord which has significantly strengthened its environmental
governance.
o After pledging allegiance to these international environmental instruments and
now on the contrary proposing to weaken its EIA regime at the domestic level,
India is in a position of cognitive dissonance.
o Such a non-conformity to pledges made at international negotiations and
agreements will weaken India’s stance as a global leader in environmental
governance and climate politics.

Way Forward
 ▪ The ministry, instead of reducing the time for public consultation, should focus on
ensuring access to information as well as awareness about the public hearing and its
impact upon the whole EIA process.
▪ In order to improve ease of doing business, the government should bring down the
average delay of 238 days in granting environmental clearance, that emanates from
bureaucratic delays and complex laws.
▪ Grow now, sustain later should not be the policy, as the notion is dangerously tilted
against the concept of sustainable development.

Issues pertaining to draft EIA Notification 2020

Post-Facto Approval

▪ The new draft allows for post-facto approval for projects. It means that the clearances
for projects can be awarded even if they have started construction or have been
running phase without securing environmental clearances.
▪ This also means that any environmental damage caused by the project is likely to be
waived off as the violations get legitimised.
o As the only remedy would be to impose a fine or punishment; but that would
not reverse the detrimental consequences on the environment.
▪ Post facto approval is the derogation of the fundamental principles of environmental
jurisprudence and violation of the “precautionary principle,” which is a principle of
environmental sustainability.
▪ In 2017, post-facto clearance given to projects in Tamil Nadu was struck down by the
Madras high court.

Public Consultation Process

▪ The draft notification provides for a reduction of the time period from 30 days to 20
days for the public to submit their responses during a public hearing for any
application seeking environmental clearance.
▪ The danger is that if adequate time is not given for the preparation of views,
comments and suggestions to those who would be affected by the project, then such
public hearings would not be meaningful.
▪ Unless a public hearing is meaningful, the whole EIA process would lack
transparency and credibility.
▪ Further, the reduction of time would particularly pose a problem in those areas where
information is not easily accessible or areas in which people are not that well aware of
the process itself.

Compliance Report Issue

▪ The 2006 notification required that the project proponent submit a report every six
months, showing that they are carrying out their activities as per the terms on which
permission has been given.
▪ However, the new draft requires the promoter to submit a report only once every year.
 ▪ During this period, certain irreversible environmental, social or health consequences
of the project could go unnoticed because of the extended reporting time.
▪ For example, if a mining project is being carried out at someplace which can be
potentially hazardous to the nearby population and can contaminate the air, and water
nearby, a half-yearly compliance report would better help in addressing these
concerns.

Bypassing EIA Process

▪ Through the draft notification, the central government gets the power to categorise
projects as “strategic.”
▪ Once a project is considered as strategic, the draft notification states that no
information related to such projects shall be placed in the public domain.
▪ Violations can only be reported suo motu by the project proponent, or by a
government authority, appraisal committee, or regulatory authority. This is against the
principles of natural justice.
▪ Further, the draft notification states that the new construction projects up to 1,50,000
square metres (instead of the existing 20,000 square metres) do not need “detailed
scrutiny” by the Expert Committee, nor do they need EIA studies and public
consultation.

Way Forward

On a positive note, the 2020 draft notification has a clause dedicated to definitions to several
terms related to EIA. It may be beneficial in the sense that it consolidates the EIA rules and
has the potential of alleviating some ambiguity in the present law.

However, it needs to address the above issues. In this context:

▪ The ministry, instead of reducing the time for public consultation, should focus on
ensuring access to information as well as awareness about the public hearing and its
impact upon the whole EIA process.
▪ In order to improve ease of doing business, the government should bring down the
average delay of 238 days in granting environmental clearance, that emanates from
bureaucratic delays and complex laws.
▪ Grow now, sustain later should not be the policy, as the notion is dangerously tilted
against the concept of sustainable development.

With the EIA, we also need Social impact assessment to achieve sustainable development in
true sense.
Why this new draft of EIA is being criticized?

• India’s new EIA draft has been widely criticised for its several provisions due to
which the new draft of EIA prove to be a regressive departure from its earlier
version.
• 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.

What are the Main issues in this new draft of EIA?

• The most devastating blow to the EIA regime is the creation of an ex-post-facto
clearance route.
Ex-post-facto clearance route

• It applies to on-going or completed project for which an EIA clearance wasnever

sought or granted, and the construction of the project took place regardless.
• The project now can be slapped with minor finesfor the violations and get cleared.
• Where such ex-post-facto clearances were being granted previously, the courts
cracked down on them as illegal.
• Therefore, what could not be ratified will now find itself notified.
• The legality of sidestepping the courts is questionable and will have to be tested

• The proposed provisions show that the Ministry has gone to great lengths to reduce or
even remove public participation, and by extension independent expert opinion, from
the process of granting environmental clearances; public reporting of violations may
also not be taken cognisance of.
• According to Section 26 there are projects that would not attract environmental
clearance or permission, including coal mining and seismic surveys for oil, methane
and shale gas on some lands.
• Section 14provides exemption and also limiting the scope of public involvement
to the districts concerned, in the case of national parks and sanctuaries where pipeline
infrastructure will pass. Roads and highways get liberal concessions.
• If a public agency or authority considers the local situation not conducive to
participation by citizens, the public consultation need not include a public hearing.
• In spite of the far-reaching nature of its proposed actions, the Centre has displayed
unseemly haste to get them in place and government has not aided credibility by
trying to shut down public responses to the draft early. It took a Delhi High Court
order to extend the deadline to August 11.
• The exercise has been further muddied by the mysterious blocking of some activist
websites calling for the EIA proposal to be dropped, and demanding a new
approach towards conserving natural resources for future generations.

What should be the Way Forward in this case?

• The 2020 draft notification may be beneficial in the sense that it consolidates the
EIA rules and has the potential of alleviating some ambiguity in the present law.
• The ministry should focus on ensuring access to information as well as awareness
about the public hearing and its impact upon the whole EIA process.
• In order to improve ease of doing business, the government should bring down the
average delay of 238 days in granting environmental clearance that emanates from
bureaucratic delays and complex laws.
• Grow now, sustain later should not be the policy, as the notion is dangerously tilted
against the concept of sustainable development.
• COVID-19 has powerfully demonstrated the value of nature for well-being: of lost
forests and captured wildlife bringing virus reservoirs closer to humans and foul air
destroying their health.
• While there might be a case for some changes, much of the proposed EIA system can
only make things worse, and should not be pushed through.
However Environmental regulation must balance damage to the environment with sustainable
development and possible benefits but the new notification lays more emphasis on the
benefits and so must be reconsidered.

How does the draft EIA Notification differ from the one now in force?

1. Removal of several activities from the purview of public consultation:

• A list of projects has been included under Category B2, expressly exempted from the
requirement of an EIA
• The projects under this category include offshore and onshore oil, gas and shale
exploration, hydroelectric projects up to 25 MW, irrigation projects between 2,000 and
10,000 hectares of command area, small and medium mineral beneficiation units,
MSMEs in dye industry etc.
• Also, coal and non-coal mineral prospecting and solar photovoltaic projects do not need
prior environmental clearance or permission in the new scheme.

2. Subverts Public Consultation: The notice period for public hearing has been cut from
30 days to 20 days. This will make it difficult to study the draft EIA report, more so
when it is not widely available or provided in the regional language.
3. New provision for post-facto environmental clearance: It means that the clearances
for projects can be awarded even if they have started construction without securing
environmental clearances.
4. Promotes Expansion: For project modernisation and expansion, the norms in
Notification 2020 are liberal, with only those involving more than 25% increase
requiring EIA, and over 50% attracting public consultation.
5. Diluted Compliance Mechanism: Project proponents need to submit only one annual
report on compliance with conditions, compared to the existing two

What are the apprehensions?

• Exemptions will seriously affect the environment, since these will be carried out
without oversight
• The move is seen as retrograde, because the CAG found in 2016 that the deficiency
in semi-annual compliance reporting was between 43% and 78%, while failure to
comply with conditions ranged from 5% to 57%
• After the gas leak at LG Polymers in Visakhapatnam in May 2020, the Environment
Ministry told the National Green Tribunal that the unit lacked environment clearance,
exposing the low effectiveness of rules.

How does the draft notification compare with global norms?

• The EU Directive on EIA includes climate change and biodiversity concerns.

• EU has also modified its processes in accordance with the Aarhus Convention, 1998,
which stipulates that
o Environmental rights and human rights are linked
o The present generation owes an obligation to future generations
o Sustainable development can be achieved only through the involvement of all
stakeholders
o Government accountability and environmental protection are connected
 o Interactions between the public and public authorities must take place in a
democratic context.

Conclusion

• The EIA rules in India privileges the interests of the project proponents over that of
safeguarding environment

Connecting the dots:

• Polluter Pay principle

• Sustainable Development Goals