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EIA Notification 2006 Amendment

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Diluting environmental regulations - Business Standard, 4 April 2009

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Latha Jishnu / New Delhi April 4, 2009, 0:04 IST

Since 2006, procedures for assessing environmental damage have been watered down to an alarming degree.

There is almost a pattern to the way India's environmental laws are formulated. Unusual secrecy surrounds the exercise and environmental watchdogs (research institutes, non-profit organisations and green activists) scurry from pillar to post seeking information on the proposed regulations or changes in existing laws and notifications. A spate of Right to Information (RTI) appeals are then filed with the Ministry of Environment and Forests (MoEF), which (reluctantly) puts up the notifications for responses from the public that are seldom taken note of.

The latest move to amend the Environment Impact Assessment (EIA) Notification of September 2006, itself a dilution of the 1994 EIA Notification, makes a mockery of safeguarding the environment from the depredations of development. The sweeping changes in the notification were put up on the ministry's website only on January 19 this year although the Kalpavriksh Environmental Action Group of Delhi, an advocacy group, has been seeking information on these proposals since February 2008. The ministry's defence was that it was an evolving process and could not be made public till the proposals had been finalised.

There is good reason why the MoEF chose to keep the proposals under wraps; the changes are stunning. The most egregious of the proposals is to exempt modernisation and expansion of projects from environmental scrutiny through a process of self-certification. Proponents of the project simply have to certify that there is no increase in the pollution load. This carte blanche to industries which are expanding or modernising less by than 50 per cent of their capacity defies logic since there is an implicit assumption that no additional natural resources will be required for the ramp-up and that it will have no impact on the environment.

UNDOING THE REMAINING GOOD

• Self-certification by project developers for modernisation and expansion projects n Public consultation by another agency on the recommendation of the project developer
• Decisions of State Environment Impact Assessment Authority to be determined by majority
• Exemption from public consultation to dredging and dumping of material within port limits
• Exemption to industrial areas below 500 hectares with certain parameters
• Relaxation in parameters for construction projects n Only coal mining leases above 150 hectares need central clearance

The MoEF has clearly capitulated to industry lobbies, especially, Ficci, which has been campaigning for self-certification by the industry by 2010. In this instance, it appears that the ministry is only too happy to oblige by making a start with expansion and modernisation.

In any case, compliance by highly-polluting industries is not being monitored, nor is any worthwhile attempt being made to assess the impact of their current operation on the environment. As it is, several projects are expanding merrily despite blatant non-compliance or incomplete EIAs. So is the MoEF merely legitimising a situation that it is unwilling or unable to tackle?

Many of the processes are even now deeply flawed although the MoEF chooses to ignore the lapses in granting clearances to major industries. Take for instance, the controversy surrounding the clearance give to the 1.75 million tonnes per annum integrated steel plant of Monnet Ispat Energy Ltd which includes a 240 Mw thermal power plant. The project, in Chhattisgarh's Raigarh district, was cleared by MoEF on December 26, 2007 although the public hearing was not completed, according to local residents. The clearance was challenged by /Jan Chetana/, an organisation formed by the local population to safeguard their environment, at the National Environmental Appellate Authority (NEAA).

The appeal filed by Jan Chetana listed several illegalities. For one, the public hearing was postponed by the district collector because the EIA consultant to the company was unable to furnish details that were sought at the public hearing. The hearing was not held again, however. For another, work on the project was carried out in full swing without even environmental clearance granted to the project. Jan Chetana had initially asked the Chhattisgarh Environment Conservation Board (CECB) to cancel the public hearing scheduled for August 4, 2007 because the company had been repeatedly violating the provisions of environmental laws on account of which the CECB had filed a criminal complaint against Monnet Ispat in the Chief Judicial Magistrate's court in Raigarh on April 7, 2007. For repeated violations of the laws, including the EIA Notification of 2006, another criminal complaint had been filed on July 20, 2007.

Yet, the company had commenced work on the project without several clearances, according to the Jan Chetana appeal filed by one its members Ramesh Aggarwal. The NEAA gave short shrift to the appeal by saying Jan Chetana had been not been able to prove that it was an association and as such was not qualified to file an appeal!

Given this background, there is a deep sense of foreboding over the proposed amendments which are expected to be notified immediately the parliamentary elections. But no one doubts the government's rationale for driving the changes. The sheer numbers give the game away. Between September 2006 and August 2008, MoEF granted clearance to 2019 projects, an average of 85 projects a month. In contrast, only 25 projects have either been rejected or sent back for review/reconsideration. Compare this with the record of the ministry between 1986 and 2006: Just 4,016 projects cleared! Kalpavriksh, which secured these figures through an RTI petition, says the massive increase in the rate of clearances has "gone hand in hand with less time available to members of the Expert Assessment Committees to scrutinise each project and take a considered view on it."

Another cause for concern is the move to tinker with the process of public consultation. MoEF has proposed that if the state pollution control boards fail to hold the public hearing within the stipulated 45 days, the project proponent can engage any other agency or authority to complete the process. "The solution is not to engage alternative authorities but to address the reasons which are causing the delay. Allowing the project proponent to hold a public consultation on the environmental impacts of their own project will not make for a free and fair consultation process," warns Manju Menon of Kalpavriksh. "It is unfortunate that the MoEF fails to provide similar space to locally affected people who have no recommendatory or decision-making role."

Given the unfair nature of the notification which is being tilted exponentially in favour of industry, some activists have sought the scrapping of the 2006 notification altogether and a new law be formulated in its place directly under the aegis of Parliament as with the Forest Rights Act. "EIA 2006 is a fit case for repealing," insists Leo Saldanha of the Bangalore-based Environment Support Group (ESG), an independent public interest research institution. ESG had predicted that State Environment Impact Assessment Authorities and State Expert Assessment Committees would not be set up by the states, and as a result it could lead to the collapse of the clearance systems. Even if these state-level bodies had been set up, the lack of competency and the confounding nature of the procedures involved in the legislation would have had the same result.

Even those who are not activists agree with this analysis. Environmentalist lawyer Videh Upadhyay who has represented governments and companies, too, finds that in the guise of rationalising cumbersome procedures, the MoEF has perpetuated the logic of the 2006 notification. Everything is aimed at speeding up clearances, he warns. "There is no way you justify these amendments. The MoEF is mandated to protect the environment. Instead, it has let down the country." As Upadhyay views it, this s a clear case of breach of trust and the ministry should be hauled up for it.