Author : Shakthivelan. M
Co-Author : Sri Rakshaa. B
Environment is no one’s property to destroy, it’s everyone’s responsibility to protect. This responsibility has been enshrined under many laws which specifically outlines that every individual has a fundamental right to live in an unpolluted environment which also imposes on him a duty to maintain the purity of the environment. This mandate to protect the environment is also enshrined in the Indian Constitution. Article 49-A and Article 51-A of the Indian Constitution mandates individuals and state to take effective measures for the protection of environment. All these laws outline the growing need to protect the environment and take those measures which will reduce the quality of destruction in the environment. Environment provides so much of boon to the mankind and the mankind is in turn under an obligation to nourish the environment. In order to achieve these said objectives the parliament using its prescribed power under Article 253 of the Indian Constitution enacted a legislation named as “The Environment Protection Act, 1986”. With the growth in more environmental hazards the concept of environment impact assessment originated. The environment impact assessment usually provides an analysis on the impact of those activities on the environment. This research paper largely focuses on environment impact assessment (EIA) and the importance of this assessment in preventing harmful activities against the environment. The authors of the research paper will also discuss on the current EIA Draft 2020 and as to how it reduces the assessment quality by increasing environmental destruction. The authors are outlining on this topic considering the changes brought in the draft which could threaten the right of the citizens and the necessity to oppose this draft. Apart from being hazardous to the environment, the impact assessment draft also does violate the citizens basic right to know about the affairs of the state and it is rightly against Article 21 of the Indian Constitution which is the fundamental right of the citizen. These aspects would be briefly concentrated on the research paper. The EIA draft 2020 is also against the UNGA resolution 70/1 which emphasised the 17 sustainable development Goals. The Authors of the paper will be discussing also about how EIA Draft 2020 violates the sustainable development goal no.12 which specifies responsible production and consumption. Goal no.15 developed by the UN also specifies about the life on land. The EIA Draft 2020 also threatens the very life creatures on land as mentioned under goal no.15. The research paper would concentrate on both national and international legislations in support of preservation of environment. On a conclusive note, the authors would like to specify that EIA is a threat to both national and international conventions and also to all other life on land and that this should be strongly opposed.
Environmental Impact Assessment (EIA) Process is used to foresee and plan for the future environmental consequences of a particular project. It ascertains both the positive and negative aspects associated with a particular plan of action while proceeding for approval. In this way, EIA reduces the impact of a particular project on an environment. Impact assessments are usually governed by rules of administrative procedure and it ensures that these impact assessments also carries certain amount of public participation along with them in order to measure the effect of the project on the environment. The EIA process is also subject to judicial review since every action of the executive is subject to be checked by the judiciary in order to ensure effective functioning of the state. The International Association for Impact Assessment (IAIA) defines an EIA as ‘‘The process of identifying, predicting, evaluating and mitigating the biophysical, social, and other relevant effects of development proposals prior to major decisions being taken and commitments made.’’EIA has been recognised under various instruments.
The EIA originated after the post world war II situation since that was a period of a greater economic development and also environmental change. There were enormous legislations trying to solve the environmental changes which focuses on issues such as wetlands, endangered species and preservation. Even though there were enormous laws on the said subject it had major difficulty in being implemented through proper assessment mechanisms. EIA originated in the year 1960’s in order to balance the need between an economic development and environment preservation. This EIA was used a tool for evaluation of benefits and disadvantages thereby facilitating towards a rationalistic decision making. EIA as a legislation was added in the National Environmental Policy Act (NEPA) 1969 of USA. EIA usually places information pertaining to environment on a public forum thereby bringing together both the interests of the public and the private actors while setting up of an industry. EIA also helps in supporting the decision making process since it analyses taking into consideration of all possible factors and circumstances which are associated with it.
In India the EIA was started in 1976-77 when the planning commission approached the Department of Science and Technology to analyse the river valley projects with environmental perspective. It started spreading slowly to all other projects requiring the approval from public investment board. Until 1994, the status of environmental clearance which was given by the Central government with respect to projects to be carried being only an administrative decision and there was no legislative support for the same. This issue was further addressed on January 27,1994 when the Union Ministry of Environment and Forests introduced an EIA notification thereby necessitating environmental clearance to be mandatory for expanding or modernising any activity. These notifications have been amended for 12 times and currently an notification has been laid out named as the EIA Draft 2020.
OBJECTIVES OF EIA:
- To ascertain whether environmental concerns are effectively negotiated and assimilate it into effective decision making process.
- To circumvent, curtail or stabilize the unfavourable physical, social and other similar effects caused by the projects.
- To safeguard the abundance provided by the natural system and nurture the environment.
- To maximize resources available with proper use and ensure sustainable development.
- To ensure public participation and ensure rigid administrative review procedure.
- To observe the effective implementation of all these procedures.
PROCESS OF EIA
This is the first stage in which a list of projects are made and those projects are scrutinised while deciding whether there is a considerable impact on the environment. 2. Scoping:
In this stage the issues pertaining to a particular project and the effect of such project will be considered through consultations and discussions. After effective consultation, the government will be able to determine the scope of the problem and the terms of reference to be made in order to address the issue.
- Selection of Alternatives:
This stage analyses all possible alternative sites or location and provides suggestions which will be feasible for both economic as well as environmental development.
- Mitigating measures:
Mitigating measures aims at reducing the effect on the environment while carrying out the project. This includes measures to modify or substitute a technique thereby reducing the impact on the environment.
- Environmental statement (ES):
This is the last stage of EIA summarising and outlining the policy, legal and administrative framework. It also describes about the proposed project and the analysis of alternatives which have been provided. It concludes with a mitigation management plan, environment management plan and monitoring program for reducing the impact of the project on the environment.
EIA AND ITS AMENDMENTS:
- 1994 AMENDMENT
- The projects outlined in Schedule-1 have been divided into category A and category B. As specified under the notification, Category A projects will require a clearance from the Central Government whereas Category B projects will be requiring a clearance from the state government. Category B projects will further be classified into B1 and B2 projects. While B1 projects require a preparation of EIA reports, it is not necessary that B2 projects need an EIA report.
- The final approval of a TOR by the Environment Appraisal Committee depends upon the information which has been furnished by the project proponent.
- Both category A and B1 projects have to tackle public consultation except for 6 activities which does not mandate for public consultation like expansion of roadways and highways, modernization of irrigation projects etc. This responsibility to conduct public hearing lies with the State pollution Control board
- 2006 AMENDMENT
- Any project owner undertaking a project listed under schedule I has to obtain Clearance from the Central government.
- Key changes were made in this amendment with respect to propagating all the documents which are available for public scrutiny.
- An application is to be made for getting prior environmental clearance.
- 2020 DRAFT
- Any project which violates EPA can get post project clearance and that can inturn cause any hazardous impact on the environment.
- This draft also categorises certain projects as strategic and thus no public information can be made available on those projects. The Government gets the ultimate right and it can name any project as strategic and by not granting public access on those projects, it can harm the environment.
- This paves way for illegal projects to become legalized and inturn affect the environment.
- Any project being scrutinised will be kept for public consultation and EIA will be ascertained by taking into consideration about the nature and operation of the project, the waste management measures to be adopted. However, the EIA draft 2020 grants exemption to public consultation and thus any project can get cleared without being consulted with the public.
EIA DRAFT 2020 VIOLATES THE FUNDAMENTAL RIGHTS UNDER PART III OF THE INDIAN CONSTITUTION:
Environment and life are coexistent in nature. The existence of life on earth relies on the harmonious relationship between the ecosystem and environment. Article 21 of the Indian constitution mandates that ‘No person shall be deprived of his life and personal liberty other than the procedure established by law.’ The ambit of Article 21 which focused on the right to life alone initially, started to spread towards many aspects of right to life including the right to a clean environment by the Supreme Court. In the case of Subhash Kumar v. State of Bihar , the Supreme Court held that the right to life under Article 21 of the Constitution is a fundamental right and includes the rights to free water and free air from pollution for the full enjoyment of life. In, Damodar Rao and Ors. v. The Special Officer, Municipal, protection and preservation of nature’s gift without which life cannot be enjoyed was considered to be a part of Art. 21. In Oleum Gas Leakage case,The Court suggested that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegate duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken and therefore, such corporations would be subjected to the limitations of right to life under Article 21 of the constitution. In Olga Tells case, the Supreme Court observed an important facet of the right to livelihood and stated that if the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Impact on the environment and its resultant damages causes enormous disruption of lives and livelihood thereby threatening the very existence. Thus the criteria of post facto clearance in EIA Draft 2020 which allows the industries to start functioning will certainly impact the environment which will ultimately affect every life on earth thereby gravely violating the fundamental right of right to clean and safe environment under Article 21 of the Indian Constitution. Any draft whenever it tends to be violating the fundamental rights of the people is ultra vires of the constitution. Thus, EIA Draft 2020 is ultra vires in nature and it should be strictly opposed.
EIA DRAFT 2020 INFRINGES THE PEOPLE’S RIGHT TO KNOW:
Secrecy in executive decisions leads to ministerial errors. The right of people to be informed has always acted as a check on the abuse of powers by the executive. Transparency in governmental decisions reduces these errors and enhances the quality of decision making. A Government, which revolves in secrecy not only, acts against democratic decency but busies itself with its own burial. India being a country outlining the corner principle of democracy has to provide equal importance in spreading information since keeping the citizens informed is the basic crux of democracy. Thus, the government is under an obligation to inform the citizens when matters concerning their interest are being acted upon by the government. In SP Gupta v Union of India, it was held that in order for a democratic Government to function effectively, it is essential that the basic principle of accountability is adhered to by providing access of information to the people about the functioning of the government. In Essar Oil Ltd. v Halar Utkarsh Samiti and ors,  the Supreme Court said that there was a strong link between Art.21 and Right to know, particularly where “secret government decisions may affect health, life and livelihood. This right to Know is a basic right vested with people in a democratic State. In R.P. Ltd v Proprietors Indian Express Newspapers, Bombay Pvt. Ltd,  It was observed that if democracy had to function effectively, then people must have the right to know and to obtain the conduct of the affairs of the State. The citizens’ right to know is thereby considered to be one of the pillars of a democratic state.
Section 22 of the RTI Act also imposes that any prohibition or condition which prevents a citizen from having access to information would not apply. In, Raj Narain case, it was recognised that the people have a right to know every public act, that is done in a public way, by their public functionaries. In, T N Godavarman v. Union of India, Order of the Supreme Court on January 6, 2014, court held that, “present mechanism under the EIA Notification is deficient in many respects since there is a lack of carrying out assessments in an independent, objective and transparent nature and also the implementation of the conditions laid down in the Environmental Clearances must be monitored. In Adivasi Majdoor kisan Ekta Sangathan and Another v. Ministry of Environment and Forest and Others, the evidence of persons who voiced their opposition to the project was not recorded and no summary of the public hearing was prepared nor was it made public. Therefore the Court declared the approval invalid. Save Mon Region Federation and Ors. v. Union of India, is a landmark judgment of the NGT on the point of access to information . In this case the tribunal directed that the copy of entire environmental clearance for all projects which are granted environmental clearance in accordance under EIA Notification, 2006 be made available to the public through websites, public notice board , publication in newspaper as well as providing copies to local bodies including panchayats and municipal bodies . The judgment tried to ensure greater access to environmental information and at the same time ensures that the remedy of appeal as provided in the NGT Act is made effective and doors of the tribunal are not shut on grounds of narrow interpretation of locus standi and limitation. The EIA Draft 2020 prepared by the government tries to reduce the voice of opposition to any project which harms the environment. Since the draft clearly specifies that there is no scope for public consultation and that the people’s right to know will not be applicable for strategic projects, it is essential that these drafts are opposed.
EIA DRAFT 2020 IS SUBJECT TO JUDICIAL SCRUTINY OR JUDICIAL REVIEW:
If the activities of a body carry an element of public interest or public duty, fundamental rights can be enforced against it. In Minerva mills v Union of India, it was considered that to destroy the guarantees given by Part III in order to achieve the goals of Part IV is plainly to subvert the Constitution. The court has suitably held that whenever there is a problem of ecology comes before the court, the court is bound to consider Article 48 and Article 51 A of the Constitution of India. Article 48 A of the Indian Constitution imposes a duty on the State to protect and improve the environment and to safeguard the wildlife and forests. The draft 2020 prepared by the government is plainly taking a measure to perform its obligations under Part IV of the Constitution thereby aggrieving the citizen’s fundamental right under Part III of the Constitution.
In Sterlite Industries (India) Ltd. v. Union of India the Supreme Court discussed the specific grounds on which administrative action involving the grant of environmental approval could be challenged. The grounds for judicial review were illegality, irrationality and procedural impropriety. Thus the granting of environmental approval by the competent authority outside the powers given to the authority by law, would be grounds for illegality. An approval can also be challenged on the grounds that it has been granted in breach of proper procedure.
The tragedy in Bhopal is not merely a failure of technology, instead it is a failure of knowledge. The accident may not have happened or its effect could have been greatly restrained, only if the people were able to access the right information at right time when they were capable of appreciating it and taking appropriate preventive action. Dangerous industries and their projects are hugely affecting the ecology. The environmental harm can be mitigated only if its subsequent impacts can be assessed before initiation of the project. In the case of Union carbide factory, the government agencies have failed to perform proper impact assessment measures before their grant of permission to the factory and this happens to be one of the major reasons for the Bhopal gas disaster.
It is emphatically the province and the duty of the judicial department to say what the law is. Thus, no man is above the law and all the officers of the government, from the highest to the lowest are creatures of the law who are bound to obey it. While deciding whether the action of any branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of the Court as an ultimate interpreter of the Constitution. The existence and scope of presidential privilege is thus a judicial question for the judicial branch alone to decide. The public interest in enforcing its laws supply whatever necessity or compelling need that may be required to reject a claim of privilege. While the court in US v Nixon agreed that a constitutionally based executive privilege exists, it did not agree that the privilege was absolute. The court further held that where the basis for the claim of executive privilege was only the public interest in maintaining confidentiality, the privileges was not absolute but only presumptive and could be overcome by an important countervailing interest or in cases of legitimate needs of the judicial process. Thus, the executive authority cannot claim any absolute privilege to draft EIA since the countervailing interest of the people’s right to know the happening of the state affairs outweighs the confidentiality of the acts performed by the government.
EIA DRAFT 2020 DOES NOT GRANT APPROPRIATE LOCUS STANDI:
The EIA Draft 2020 also restricts the scope of application to be filed only to the concerned aggrieved persons. Thus, any person who does not have an interest on the concerned site will not be able to approach the court. Considering this issue, an important case in this hand has ascertained who an aggrieved person actually is. In Vimal Bhai v. Ministry of Environment and Forests, a case where a forest clearance granted to a hydro power project was challenged, the respondents sought a narrow definition to “person aggrieved” under Section 16 of the National Green Tribunal Act (NGT), and argued that the environmental group which had initiated the proceeding was not affected by the project since none of them resided in the project area. The NGT, however, held that a “person aggrieved” under Section 16 does not signify a person who is injured or affected, directly or indirectly by the Project, but includes any person without a malafide intention.
Krishi Vigyan Arogya Sanstha and Ors. v. MOEF and Ors,  also held that where there are a few ignorable procedural lapses in conducting the public hearing, the same leads to a mockery of the public hearing which is one of the essential part of a decision making process while granting an environmental clearance. Aggrieving the chances of a fair and public hearing directly violates the rules and principles of natural justice to its brim. Therefore, the court in this case declared that the public hearing conducted in this case is nullity in the eye of law and therefore is invalid. The NGT ordered the cancellation of the environmental clearance in this case since there were gross procedural irregularities in the conduct of the public hearing. “grant of environmental clearance is basically a procedural law and any procedural lapses such as collection and evaluation of basic data which may lead to threat to the environment, ecology and conservation of natural resources, shall have to be taken seriously by this tribunal while dealing with disputes coming before it“
The NGT observed that according to the precautionary principle, the environment clearance should not have been granted by the MOEF. Tribunal at its Own Motion v. Ministry of Environment & Forests, it was held that wildlife is a part of environment and any action that causes damage or is likely to cause damage to wildlife, could not be excluded from the purview of the tribunal while taking into consideration the sustainable development of the environment.
EIA DRAFT 2020 IS VIOLATIVE OF INTERNATIONAL PRINCIPLES AND CONVENTIONS:
EIA Draft 2020 violates the Rio Declaration on Environment and Development Principle 3 of this convention states that the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. EIA Draft 2020 is violating this clause by prescribing post facto clearance which will in turn destroy the environment whereby the environmental and development needs cannot be sustained and made available for present and future generations. As per Principle 10 of this convention, environmental issues can be handled in an effective manner provided that there is an effective participation of all concerned citizens who will have access to information which will be held by public authorities and the states are mandated to play a role in encouraging public awareness and participation by widely spreading the information. Effective public access can aid in the process of decision making and it can also provide appropriate remedies. This principle is also being violated by the EIA draft 2020 since it completely ignores the importance of public consultation. In Amit Kumar v. Union of India, the precautionary principle was taken into consideration and the Tribunal had observed that if evidence is found that there is any harm on the migratory birds due to construction activity, the project should be immediately stopped until proper avoidance measures are being implemented. The EIA Draft 2020 ignores this precautionary principle by outlining for post facto clearance where even those illegal projects which cause harm to the environment can be legalised without adopting proper mitigating measures.
RIGHT TO SOVEREIGNTY OVER NATURAL RESOURCES IS NOT ABSOLUTE:
The United Nations General Assembly has clearly provided that the right of people and nations to permanent sovereignty over their natural resources and wealth should be exercised in the interest of their national development, and of the well-being of the people of the state. National sovereignty over natural resources has been affirmed in majority of international agreements. However, it is also provided that this concept of sovereignty is not absolute, and the fundamental principles of international law always lays down a responsibility on all states with regard to those actions which might have a potential harm on the environment which will threaten the existing and future generations of the States. Thus, it is very clear that this protection of sovereignty over natural resources does not outweigh the Rio declaration which prescribes the duty of each and every state to preserve those resources for existing and future generations.
EIA DRAFT 2020 VIOLATES THE SUSTAINABLE DEVELOPMENT CONCEPT:
Rural Litigation and Entitlement Kendra, Dehradun vs. State of Uttar Pradesh, the court ruled that the permanent assets of mankind are not to be exhausted within a single generation and that there should be appropriate attention and care in using those natural resources so that ecology and environment may not be affected in any serious way. In Gau Raxa Hitraxak Manch and Gaucher Paryavaran Bachav Trust, Rajula v. Union of India and Others, it was held that Environment assessment is not a mere formality and it requires detailed scrutiny by Assessment Committee of the application as well as the documents which have been filed and the final decision for either rejecting or granting an Environmental clearance vests with the Regulatory Authority such as the ministry of environment and forests. Even though the regulatory authority approves or rejects a clearance, the task of assessment forms a major step in granting approval or rejection and this has to be done with due care and caution.” In this case, due care and caution will not be applied by the Assessment Committee since this draft of 2020 rules out the possibility of environmental clearance. This also violates 2 of the 17 Sustainable development goals proposed by UN . Goal no.12 specifies about responsible production and consumption. In this case, the production of goods will directly impact the people residing near that site contaminating the environment. Since there is no possibility of project approval during the stage of initiation, the same would pave way for exploitation of resources without due care and consideration about maintaining the environmental standards. This clearly destroys the environment while the private companies keep pooling and exploiting natural resources in order to meet their abundant and unquenchable thirst for earning profit. It is also against goal no.15 of the sustainable development goals proposed by the UN. Goal no.15 specifies about life on land. Thus, an activity to be carried on must necessarily be in consonance with the environment. Approval of EIA draft 2020 will threaten every life on land leading to endangerment and destruction of every other species. As clearly mentioned by the authors in the abstract, environment is not only for human beings to enjoy and every other species is entitled to equal enjoyment of this environment. Thus, this draft is to be opposed for being irrational and arbitrary in nature.
“There is a sufficiency in the world for man’s need but not for man’s greed.” In the current era of globalisation industries are motivated with the sole object of economic development and profit making. With that sole aim, they start exploiting every resource available on earth. The world has sufficient resources for mankind, but he should learn to use it effectively and coexistently along with all other creatures. It is therefore conclusive of the fact that EIA Draft 2020 strikes at all kinds of living creatures and creates an imbalance in the environment. It is our role and duty as citizens to make sure that this draft does not get implemented and our fundamental right to have access to a clean and safe environment and our right to know the affairs of the state does not get suppressed. The authors of this research paper would like to end by saying that every citizen must be made aware about the importance of EIA and how this draft curtails every freedom and he should effectively spread his awareness in attempting to oppose the draft. “A single step in the right direction can pave way for right development.” Thus, the citizens have to take a part in this direction to protect and safeguard their environment.
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