By Kanchi Kohli*
Depending on which side of the fence people have found themselves on, the responses to the quick regulatory changes that the Ministry of Environment, Forests and Climate Change (MoEFCC) has brought about over the last three months have clearly differed. The changes have ranged from bringing in calculated dilutions, striking a balance between environment and economy, ensuring regulatory efficiency, to removing roadblocks to economic growth. The number of hits on the Ministry’s website has been high with those interested in environment and forest clearance matters in the country, regularly looking out for new updates there. It is no longer a surprise when the morning news brings yet another change either implemented or in the offing.
Two key areas of change have been the Environment Impact Assessment (EIA) Notification, 2006 (issued under the Environment Protection Act, 1986) and the applicability of the Forest (Conservation) Act (FCA), 1980 in some specific instances. The EIA notification is what lays out the process where an environment clearance (EC) needs to be sought for a range of processes and activities are listed as part of the notification. It requires a project developer to prepare and submit an EIA, which goes through a public consultation phase to begin with, and then an appraisal by an expert committee. On the other hand, the FCA is what regulates the diversion of forestland for non-forest use such as industry, plantations, infrastructure development etc.
There have also been news reports, pointing to changes being considered for laws related to recognition of forest rights [Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006] as well as the powers of the National Green Tribunal (NGT), but no specific details are available publicly on what that might be (click HERE for details related to possible changes to the changes in the land acquisition law were).
At the same time the MoEFCC has also set up a six member committee for the review of five major environmental laws of the country, including those governing air and water pollution, forest diversion, environment protection and wildlife conservation.
Range of changes regarding applicability of EC
Post elections, one of the first changes that were made to the EC process was through an office memorandum dated 25 June 2014. These changes focused on the list of projects mandated to follow the regulatory process, as appended to the EIA notification. The changes were broadly in the realm of delegation of powers to state regulatory agencies, possible exemptions and changes in the threshold limits of projects requiring approval, either from the state or the centre.
For instance, all irrigation projects of capacity up to 2000 hectares of culturable command area are now exempt from going through the EC process. Culturable command area refers to ‘the area which can be physically irrigated from the scheme and is fit for cultivation’ or ‘the difference between the gross command area and the unculturable area falling under the command’ or ‘the total area in which cultivation is possible.’
Following this amendment, irrigation projects with a command area between 2,000-10,000 hectares (Category B) would need approval from the State Environment Impact Assessment Agency (SEIAA) and all irrigation projects above 10,000 hectares require approval from the MoEFCC (Category A).
A range of modifications through this amendment have also led to more projects landing up under the jurisdiction of the SEIAA. This includes all biomass-based thermal power projects and synthetic organic chemicals industries if located outside the notified industrial area/ estate. The water consumption of these industries must be less than 25 cubic meters per day and fuel consumption less than 25 tonnes per day (TPD). The chemicals, however, should not be covered in the category of Major Accident Hazard Units (MAH) as per the Management, Storage and Import of Hazardous Chemical Rules, 1989.
One of the most significant delegations to the SEIAAs came with the modification of a General Condition of the EIA notification. Earlier, many category B projects would come straight to an expert committee of MoEFCC (as Category A) if they were located within 10 kilometres of a national park, sanctuary, critically polluted area, ecologically sensitive area (ESA) or an inter-state boundary. This could include a thermal power plant under 500 MW or a mining lease up to 50 ha. The amendment has now restricted the applicability of the general condition to 5 kilometres, implying that many more projects which are already category B would be appraised by the SEIAA.
Another amendment involves adding of coal tar units to the EIA notification. Though not explicitly mentioned thus in the amendment, this issue is likely to be linked to two ongoing proceedings in the NGT related to whether coal tar units are part of the EIA notification. On 2 May 2014, the NGT had asked the MoFCC (then MoEF) to make a submission in this regard.
Possibility of no public hearing for one time expansion of coal mines
Little over a month after the previous set of changes, the MoEFCC put out another important amendment to the EIA notification on 28 July 2014. This notification clearly records that the Ministry of Coal has “once again urged this Ministry for further dispensation in the matter so as to quickly ramp-up coal production for enhancing power production in public interest.” The result of this request was a possible exemption of a public hearing for coal mining projects that had existing production capacity exceeding 16 MTPA and required a one-time capacity expansion.
However, the amendment puts a huge onus of “due diligence” on the Expert Appraisal Committee (EAC) on coal mining projects, which needs to take a call before allowing such exemption. Such a decision by the EAC also needs to be subject to “satisfactory compliance with environmental clearance(s) issued in the past as judged by the EAC.”
Taken together, these mean that if it can be proved that the EAC did not apply the above compliance and due diligence processes before allowing for exemption, it can be open to challenge before the MoEFCC prior to the grant of clearance, or before the NGT or a court, after such approval is granted. This exemption is also subject to a ceiling of additional production of up to 5 MTPA and if the transportation of additional production of coal is proposed to be done by means of a conveyor and/or rail transport.
Draft amendments opened for review and public comments
There are also two draft amendments proposed to the EIA notification by the MoEF, which were opened up to public comments.
The first dated 25 June 2014 sought the addition of non-irrigation projects, such as for drinking water supply, to the purview of the EIA notification. Such projects, involving less than 5000 hectares of submergence area, have been proposed as Category B projects to be appraised at the state level.
Projects with 5,000 hectares of submergence area or more than that would need to be considered as Category A, and would be considered by the MoEFCC and its expert committees. The amended general condition discussed in the section above would also apply to these.
The same draft notification had also proposed bringing thermal power plants with non-hazardous municipal solid waste as fuel under the purview of the EIA notification. These are to be considered Category A if they generate greater than or equal to 15 MW of power, and Category B if they generate less than 15 MW. The responses to this had to be sent within sixty days of the issuance of the notification.
The second draft notification was opened for public comments on 11 September 2014 and there are sixty days available for responding to it. As per the EIA notification, all Building and Construction projects over 20000 sq metres or more, and with greater than 1,50,000 sq meters of built-up area are to be approved by the SEIAA. The same applies to Townships and Area Development Projects covering an area of 50 hectares or more, and/or built-up area of 1,50,000 sq metres or higher. No other building or township projects need to get environment clearance.
Such projects follow a less strenuous process than what is required for all other projects listed in the notification. According to the 2006 EIA notification, such projects could be appraised without a full EIA and public hearing. However, for these projects, too, the general condition discussed earlier applied. The proposed amendment now seeks to remove the applicability of general condition for all building, construction and township projects, bringing them all under the jurisdiction of the SEIAA, irrespective of their location.
What is of concern in this amendment is the additional note which has been added. The manner in which it has been drafted conveys that the only activities covered in this category include “residential buildings, commercial buildings, hotels, hospitals, hostels, office blocks and information technology /software development units/Parks”. This list is not exhaustive and can be read as a limitation to the applicability of EIA notification to all building and construction projects. Construction projects such as large religious complexes can stand excluded.
Forest diversion related exemptions
So far, changes to the forest diversion process have not been made through amendments in the law itself, but through the issuance of certain circulars and guidelines. Changing the FCA, 1980 will require invoking a parliamentary process, unlike a notification issued under an existing law. While this might be in the offing, nothing has been made public so far.
However, two very critical exemptions have been made for requirement of permission for diversion of forest land which have been listed as the ministry’s achievements in a press release by the MoEFCC dated 2 September 2014. Both these relate to defence and security of the country, while they locate themselves in the heart of the most ecologically fragile and biodiversity rich areas, which are homes to many tribal, pastoral, or other communities dependent on these habitats.
The first exemption relates to a general approval under the FCA for construction and widening of two-lane roads “in the area falling within 100 kilometres aerial distance from the LAC, and widening of link roads, between Border roads in the area within 100 kilometre aerial distance from the LAC and National Highways/State Highways/Other State Roads.” This means agencies such as Border Roads Organisation (BRO) and the Ministry of Defence (MoD) don’t need to take separate approvals for construction of these roads around the LAC.
In addition the MoD has also been asked to submit a list of constructions, which can be termed as strategic defence infrastructure to be considered for “general approval”. This includes army stations, ammunition depots, schools, training centres, hospitals or residential quarters.
The second exemption relates to the 117 districts in the country, which the Ministry of Home Affairs declared as being affected by “Left Wing Extremism (LWE)”. This is across the states of Chhattisgarh, Jharkhand, Odisha, Bihar, West Bengal, Andhra Pradesh, Maharashtra, Madhya Pradesh and Uttar Pradesh. Time and again, the MoEFCC has given exemptions for forest diversion to carry out construction of public roads and other facilities in these areas. The last such exemption was in March 2014, just before the Lok Sabha elections.
On 4 July 2014, the ministry had further extended the general approval for forest diversion from 1 hectare per activity to 5 hectares, for public utility projects in these areas including schools, medical colleges, irrigation canals, non-conventional sources of energy, police stations and outposts, watch posts and so on.
What do these changes imply?
A close reading of the text of the amendments reveals that the changes to the EIA notification are mostly centred around more delegation and devolution of powers to state governments and inclusion of some missing sectors under the purview of environment clearances. None of the projects or activities find themselves excluded entirely from the process; however, the level and depth with which they will be scrutinised is increasingly moving from the MoEFCC to the SEIAAs. There isn’t however, a simultaneous thinking of whether or not the SEIAAs will be in a position to effectively handle this additional workload and what their public interface will be.
Moreover, as pointed out earlier, in the case of building and construction projects, the amendment can lead to exclusions of certain kinds of projects.
The forest diversion proposals, however, impinge upon the heart of sites of conflict. They are directed towards giving government and armed forces the regulatory ease to establish infrastructure in sensitive border areas or the districts where conflicts are a crucial narrative. There will be possibility of little oversight of the amount of forest actually used up, once the general approval is in place and operationalised.
In the prevailing season of change, these are likely to constitute only the tip of an iceberg standing tall.
*The author is an independent researcher, based in New Delhi. The article has also been published in http://indiatogether.org/