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Green Tapism

A Review of the Environmental Impact Assessment Notification � 2006

Introduction

India's Environment Impact Assessment Notification � 2006
A design for unmitigated environmental and social destruction

Announcing the publication of

Green Tapism: A Review of the Environmental Impact Assessment Notification � 2006

by
Environment Support Group, Bangalore

"This book is a �must read� for policy makers, engineers, scientists, contractors, independent thinkers and even investors who should be sensitive to India�s environment. The passionate plea at the end of the book for scrapping this notification and reinstating the 1994 notification minus its deficiencies does not seem to have been heard so far amidst the din and noise of the need for growth and investment, but a heavy price will be paid by future generations of Indians if such cautionary signals emanating from publications such as this are ignored." - R. Rajamani (full review)

Environment Support Group presents to you �Green Tapism: A Review of the Environmental Impact Assessment Notification 2006�. The EIA Notification � 2006 was issued on 14th September 2006 by the Union Ministry of Environment and Forests (MOEF) and its journey from the draft stage to its final form has been marked by controversy and widespread protests. Green Tapism offers a critical analysis of the Notification, its implications and argues that it is in the best interest of the country that this Notification is repealed.

The EIA Notification is the only piece of legislation that explicitly mandates and defines the process for public involvement in environmental decision making. In this sense, it is natural to expect MoEF to have issued the Notification after meaningfully involving the public at all stages of the formulation process. The Ministry made no effort to actively involve the public, merely organizing a couple token consultations with a few invited NGOs (which by no stretch of the imagination can be considered to represent the wider public). During the finalization of the notification, the Indian Environment Ministry went so far as to firmly shut its doors on the public and admittedly consulted only with industrial and investor lobbies. Even State Governments and Parliamentarians were not accorded this privilege.

The resulting legislation clearly prioritizes the needs of industry and investment over environmental and social concerns. The legislation, hurriedly finalized in an effort to get it notified by 14th September 2006, happens to be a truly shoddy piece of legislation. Rather than simplifying the process of environmental decision making, it complicates the process to a point that even officials within the Ministry have difficulty appreciating how to implement its provisions. A good indication of this is that the Ministry has already issued about 10 documents as notes/circulars in clarification and also issued a corrigendum. Foxed by widespread demands of clarification on the operational difficulties of the Notification, the Ministry has also given a carte blanche exclusion from the purview of the notification till 30 June 2007. The EIA Notification is in operation, and yet it is not.

We sincerely feel that at a stage where India is rapidly expanding its manufacturing and infrastructure sectors and the consequent environmental and social impacts are being felt, the EIA Notification could have been a wonderful opportunity to help rationalize the push-pull factors between sustaining development and ecological security. We fear this opportunity has been lost, as MoEF was driven in its zeal to promote itself as a pro-investment Ministry, compromising the very purpose for which it was constituted.

It is likely that the EIA Notification � 2006 will cause widespread confusion during the phase when it is actively implemented. We fear this notification could become a major reason for burdening the Courts with a variety of litigations. All this could easily have been avoided if the Ministry had adopted a transparent approach and listened to all views, not just those of vested industrial and investment lobbies. The misery resulting from its complicated and confusing approach will most likely be borne by project affected communities, who are generally the economically and politically weaker sections of our society. This is a truly unfortunate outcome of this Notification.

Have the objectives for environmental reforms been met?

According to MoEF, the objective for amending the EIA Notification - 1994, was to formulate a transparent, decentralized, and efficient regulatory mechanism in order to:

• Incorporate necessary environmental safeguards at planning stage
• Involve stakeholders in the public consultation process
• Identify developmental projects based on impact potential instead of the investment criteria

However, in our review we find that none of these objectives are being met meaningfully. In fact, the EIA Notification - 2006 comes across as a shoddy piece of legislation that promotes non-transparency, concentrates power (either with the centre or states), and unnecessarily creates new layers of bureaucracies. In effect, we believe this will lead to:

• Weak review of environment and social impacts
• Reduced involvement of local government and the wider public
• Prioritization of investment over environmental and social concerns

Additionally, the Notification fails to convince us how it is compliant with constitutional provisions and environmental jurisprudence that has evolved over the decades in response to environmental crises. In fact we make a very strong case that a nexus between MoEF and industrial lobbies has worked to weaken India's key environmental impact assessment regulations. Needless to state, the Notification is also in abject violation of the spirit and import of Rule 5 (3) (c) of the Environment Protection Rules, 1986 and well-entrenched constitutional precepts.

That the objective was never to comply with Indian environmental law and jurisprudence has been confirmed by Dr. Prodipto Ghosh, Secretary, Ministry of Environment and Forests. In a presentation that he made to Confederation of Indian Industry (CII) during their �Sustainability Summit: Asia 2006 � Promoting Excellence for Sustainable Development� recently, he acknowledges the three major imperatives in reforming the EIA Notification as:

• the comprehensive review of the Environmental Clearance process initiated by MoEF under the Environmental Management Capacity Building (EMCB) Project, financed by the World Bank.
• the recommendations of the Govindarajan Committee setup by the Central Government for Reforming Investment Approvals and Implementation Procedures, and
• MoEF studies that brought out the need for reforms, which were found to be consistent with the Govindarajan Committee recommendations.

While favouring investment is an object of governance, it cannot be at the cost of our environment, forests and the livelihood security of millions. Many of the World Bank sponsored EMCB studies had the explicit intent of pushing for reforms of India's environmental decision making systems and make them favourable to investment, both foreign and direct. MoEF unquestioningly incorporated the outcomes of EMCB studies in its operations. The study to �re-engineer� India's environmental clearance systems, which was one of the World Bank sponsored components, was awarded to an international consultancy firm, Environmental Resource Management, and most of their recommendations are today part of the EIA Notification � 2006.

The Govindarajan Committee on Investment Reforms, admittedly another major influencing factor in the reform of the EIA Notification, had advocated against comprehensive review of project impacts on forests, if this slowed down investment and proposed �deemed clearances� including for �pre-construction activities� such as in mining and building dams. As if in conformance with this recommendation, MoEF has allowed for land acquisition prior to assessment of environmental and social impacts in all projects, and extended the period of environmental clearances to 30 years in the case of mining projects and for 10 years in the case of dam building projects. In the earlier EIA Notification � 1994, the period of environmental clearance was a maximum of 5 years.

None of these reform or �re-engineering� committees or studies was open to public; nor were their findings disseminated amongst various State Governments, Legislatures or Parliamentary bodies. In a similar way, the draft of the EIA Notification � 2006 was only made available on the MoEF website and its finalisation was based on highly selective consultation with industry and investment lobbies such as the ASSOCHAM, CII, CREDAI, etc.

Public and Elected Representatives excluded from process of reform:

Leading Parliamentarians and the Parliamentary Sub-Committee on Science, Technology, Environment and Forests criticised and questioned this secretive and pro-investment approach of the Ministry. Shri. Sitaram Yechury, Member of Parliament (Rajya Sabha), Leader CPI(M) Group and Department-related Parliamentary Standing Committee on Transport, Culture and Tourism, in his letter of 31 August 2006 to Shri. Raja expressed concern that the: �consultations on the draft of the EIA Notification by the Ministry has been restricted to Industry Associations like CII, FICCI, ASSOCHAM and CREDAI and some Central Ministries and Departments. This cannot be interpreted as extensive public consultations under any circumstances......It is important for the Ministry to hold extensive consultations by organising zonal workshops involving the State Governments, Zilla Parishads, Panchayats, mass organisations and NGOs. There should also be a full discussion on this issue in the Winter session of the Parliament.� Based on this rationale, Shri. Yechury demanded that the Ministry �withhold the finalisation of the EIA Notification till such extensive discussions and parliamentary debate take place on the issue.�

In response, Shri. A Raja, Union Minister for Environment and Forests, wrote in his letter dated 13 September 2006 to Shri. Yechury that: "(t)he proposed final Notification is a �Subordinate Legislation� and therefore as per Parliamentary procedure, immediately after it is published in the Gazette of India and authenticated copy will be forwarded to the Lok Sabha and Rajya Sabha Secretariats for being laid on the Table of the House for scrutiny by the Committees on Subordinate Legislation. My Ministry will be guided by the recommendations of these Committees. Therefore, a parliamentary debate prior to the issue of the Notification is not considered as necessary."

A day later, MoEF issued the EIA Notification � 2006.

The final notification revealed that none of the concerns or criticisms raised across the country has at all affected the Ministry, except those proposed by industry and investment lobbies. Shockingly, the final Notification is far weaker than its draft. Many high impact sectors such as automobile industries, which were proposed to undergo environmental clearance per the draft, have been exempted in the final notification. The strength of regulating Special Economic Zones, Exclusive Economic Zones, urban construction sector, amongst others, has been substantially weakened.

About this time, the Tatas were pushing for clearance of its �small car� project at Singur in West Bengal, SEZs (such as in Nandigram and Gurgaon) were being proposed by the dozens all over, dam projects were being cleared in every riverine state of India (especially in the North East), and almost every large investment house was demanding single window clearances for its projects. The impact of such pressures has resulted in weakening of India's environmental and social impact regulatory systems. India's environment, in particular its diverse and highly threatened forests and wildlife, tribal communities, farming communities, fisher communities, marginalised in the rural and urban areas of India will bear the adverse impact of this weakening of our environmental regulatory systems over time.

EIA Notification � 2006: Ready to be discarded

Besides failing to convince us that the new Notification progressively implements constitutional provisions and environmental jurisprudence, the EIA Notification - 2006 comes across as a shoddy piece of legislation, meant to confound the investor and the general public. There remains a lot of confusion surrounding the continued relevance of the 1994 EIA Notification as is evidenced by the innumerable circulars, clarifications, and guidelines being issued by the MoEF. As the new regime kicks in, the hazy regulatory framework is very likely to compromise effective protection of India's environment, forests, biodiversity and the livelihood security of millions.

This review report makes a case that the strong nexus between MoEF and industrial lobbies has substantially weakened India's key environmental impact assessment regulations by favouring investor interests. Needless to state, the Notification is also in abject violation of the spirit and import of Rule 5 (3) (c) of the Environment Protection Rules, 1986 and well-entrenched constitutional precepts. As a result, the EIA Notification � 2006 is unlikely to stand up to serious judicial scrutiny.

An India that plans to sustain a high economic growth rate cannot be bogged down by such seriously flawed legislations. Legal complications that will be the primary outcome of the EIA Notification are likely to adversely affect investment flow and defeat the objective of effective environmental regulation. It is imperative that a robust and clear set of norms governing the social and environmental impacts of development should be available to assure economic growth and environmental conservation.

We find that the problems likely to occur as a result of the new Notification are far too serious to be left unchallenged. Keeping all these concerns in view, it would be in the best interest of all to repeal the EIA Notification � 2006. The country will thus be saved the spiralling misery of dealing with a bad piece of legislation. Reinstating the 1994 Notification, fully acknowledging its limitations, is an option worth considering as an interim measure. Such a move would also provide us a new opportunity to carefully evolve a truly satisfactory law on environment impact assessment that India deserves.

Who should read Green Tapism:

As a report and a resource book, Green Tapism can be relied upon for a critical appraisal of operational issues of the EIA Notification- 2006, its legal basis (or lack thereof), the problems that can be expected in its implementation, the implications for local communities and environmental groups in particular, and the widespread aggravation of the environmental and social impacts the Notification is likely to cause.

Written in a simple style, highly illustrated and providing a variety of case studies and examples, Green Tapism is essential reading for researchers, campaigners, social activists, environmental regulatory agency officials, analysts, journalists, students, public administration officials, lawyers and judges, investors and in general anyone who is concerned about the state of our environment.

All these issues are carefully analysed in Green Tapism: A Review of the Environmental Impact Assessment Notification � 2006.

The entire exercise of researching for and writing Green Tapism has been borne by us with our meagre resources. We have received some support for printing and dissemination of the report, but this does not cover all our expenses comprehensively. In case you would prefer to make a contribution to these costs, we would welcome the same. Kindly make the contribution in favour of Environment Support Group (suggested minimum contribution per book: Rs. 250/- within India and US $ 20 overseas � postage additional).

In case you wish to receive a copy of Green Tapism, kindly fill in the request form (PDF - 42 KB) enclosed with your contribution, and mail it to us at:

Environment Support Group
No 1572, 100 Feet Ring Road,
36th Cross Banashankari 2nd Stage,
Bangalore 560 070 INDIA

Tel: 91-80-26534364
Email: [email protected]
Web: www.esgindia.org

Green Tapism: A Review of the Environmental Impact Assessment Notification � 2006
Illustrated, all colour, 184 pages, paperback.
Authors: Leo F. Saldanha, Abhayraj Naik, Arpita Joshi and Subramanya Sastry
Publisher: Environment Support Group, Bangalore, India
� 2007, Environment Support Group, Bangalore
Production and dissemination of Green Tapism supported with grants from: Association for India's Development, USA and Global Green Grants Fund, USA.