Govt giving opportunity to project developers to obtain post facto environmental clearance

pollution1Paryavaran Mitra, Ahmedabad-based non-government organization (NGO), has circulated a note it has prepared critiquing the draft notification amending the Environment Impact Assessment (EIA) roles of 2006. Text of the note, which it has submitted to the Ministry of Environment, Forests and Climate Change:

We are Gujarat-based voluntary organization working in the field of environment and industrial pollution issues since 1997.  We have been involved in the EIA process, monitoring, and participation in EPHs (environmental public hearing) across the state. We believe in strong public participation and so we are encouraging participation of locally affected people to attend the Environmental Public Hearing. We are also working on monitoring of procedural gaps & monitoring of environmental compliance.

The Ministry of Environment, Forest and Climate Change (MoEFCC) has issued a draft notification seeking to amend the Environment Impact Assessment (EIA) of 2006 regarding violation cases in public domain for suggestions and comments.  We had organized public consultation regarding this draft notification dated 25 June 2016 and took opinion of various environmental consultants, academicians, and civil society groups. We would like to present the following comments:

  1. Section 15 of Environment (Protection) Act, 1986, provides penalty for violation of any provisions of legislation or any rules made or orders or directions issued under the Act. The punishment provided for the first offence may extend to five years imprisonment or fine of one lakh rupees or both and in case of continuing violation, additional fine of rupees five thousand for every day and an enhanced sentence of imprisonment for a term which may extend to seven years where violation continued beyond a period of one year after the date of conviction. The proposed draft notification instead of giving punishment of imprisonment as well as fine has opted for fine as penalty to the violator, which gives way out to the violator and encourages them to pollute and then pay fine.
  2. With the proposed draft notification, MOEF is giving opportunity to project developers to obtain post facto environmental clearance by just implementing environmental supplemental plan. This approach if allowed would give project developers free hand to first start the project causing irreversible damage and then seek post-facto clearance.
  3. The proposed draft notification seems to be a way to bring up some of the concepts of Environment Law Management Act (ELMA) which was proposed by T S R Subramanian panel in 2014 to make room to the development projects. The government is trying to amend old laws that hinder the growth process and amend them such that they could be in line with developmental plans and industrial growth.
  4. The very objective of the EIA is to foresee the potential environmental problems that would arise out of a proposed development and address them in the project’s planning and design stage. So in a way this proposed draft notification is encouraging project developers to dilute the objective of EIA by giving easy way off the violation.
  5. This proposed draft notification seems to dilute the powers of the National Green Tribunal and judiciary which is the only effective grievance redressal mechanism for the affected peoples by giving project an escape by just implementation of the supplement plan as compensation to the damage it has done to the project affected area.
  6. The draft notifications states that “The ESP will draw up an assessment and cost of damages which the project developer is expected to pay up.” Firstly the question is do violators pay big fines? Secondly, the government has till date not made any provision or policy for using environmental fine or money collected from Bank guarantee for environmental management. CPCB has published guideline for respective SPCBs regarding bank guarantee scheme and its use to be taken from non complying units which many SPCBs have been implementing, but then the government has been inefficient in using the money for environment conservation or give justice to affected people.
  7. The draft states that the project proponent shall give the consent for implementation of the Environmental Supplemental Plan under the monitoring of the Expert Group and satisfactory implementation of the Environmental Supplemental Plan shall form one of the specific conditions of the environmental clearance. The process of appraisal of the project for grant of environmental clearance and preparation of the Environmental Supplemental Plan shall be carried out simultaneously.” Now this means that whether the violator successfully implements ESP or not, MOEF will grant environmental clearance so the violator is not under any pressure to implement ESP, on contradictory it is getting benefits of guaranteed environmental clearance from MOEF because it has already agreed to implement ESP.
  8. The environmental supplement plan states that the main focus will be remediation of the ecological damage caused due to violation but lacks justification regarding evaluation of the environmental damage i.e. it does not give any clarification on whether short term or long term damaged incurred by the project will be evaluated or not.  Thus ESP has emphasized more on the areas it will cover but lacks depth and seems to have superficial approach.
  9. The draft states that the Expert Group constituted by the Ministry shall be eligible for preparing the Environmental Supplemental Plan. But it does not give further details regarding the qualifications or area of expert that will be members of the expert group.

Click HERE to read what two experts, Manju Menon and Kanchi Kohli, have to say about the draft notification

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