By Manju Menon and Kanchi Kohli*
The Environment Impact Assessment (EIA), a legal process that effectively grants projects like mines, dams and industries access to land, water, forests and other environmental resources has been used in India since 1994.
On March 12, 2020, in the midst of a global pandemic, the environment ministry put out a draft proposal to amend the EIA norms. The last date for public comments is June 30, 2020.
The EIA was designed within a historical economic context. And the changes proposed to it by the government also fall within the current political and economic context.
History of EIA
The Environment Impact Assessment Notification, a plainly worded, short legal instrument is a global symbol of neoliberal environmental regulation. Scholars state that its origins are tied to the period of US economic liberalisation.
The US had embraced neoliberal policies by the 1970s. This economic shift promised to take care of all those who had been left behind by the earlier economic era. While social justice, in the form of better income and greater equality, was expected to come riding on the back of a freed-up economy, environmental problems that would accompany the expected period of high growth, needed taking care of.
This priority was reflected in the works of environmental writers and the birth of many environmental organisations that now have worldwide operations. During this period, the US enacted environmental laws which brought together systems of expert based scientific assessments and public participation in environmental decision making. These contradictory logics of scientific rationale and democracy were to give us the best of both worlds on environmental governance.
EIA based decision-making on projects took off from here as a global sustainability tool.
It was packaged and introduced to countries around the world through international environmental conventions. During the decade of the late 1980s and 1990s, many developing countries, including India were undergoing “LPG” or the opening up their markets to foreign investments as well as handing over major production sectors to private players.
Since the EIA offered a way to control the actions of private economic entities, national governments adopted these procedures (Biswas and Agarwal, 1992). Those who didn’t, were persuaded or induced by International Financial Institutions (IFIs) because the EIA became a condition for loans or grants. After all, globalisation or the removal of trade barriers between countries also needed the alteration of domestic laws and regulations.
Almost all countries in the world today have some form of legal tool for project-level environmental decision making such as the EIA. If the global spread of economic neoliberalism is understood to have decimated labour laws and social protections in many part of the world, the EIA enabled the environmental effects of neoliberal economic arrangements.
The EIA belongs to the class of laws that were purportedly brought in for the good of the public but had the opposite effect.
EIA in India
Since the time India formally adopted the EIA in 1994, it has been a thorn in the flesh of both industry and environmentalists. Industry representatives who would like to have unhindered access to the country’s natural resources have called it the return of the “permit raj” of the earlier decades.
Environmentalists have referred to it as a “rubber stamp” that legitimises environmentally degrading projects. This is because the rejection rate under EIA is nearly zero. Despite parties from both sides having punched EIA procedures all these years, this system of regulating the transfer of valuable environmental resources that sustain entire communities and cultures, to profit-making projects, has prevailed.
This is because the EIA is the government’s cover for legalised take-over of the environment. More importantly, activists have charged governments of having used the EIA to expand their political control by favouring corporate entities.
It is not a coincidence that the EIA process is framed as a ministerial notification or a delegated legislation and not as a full-fledged Act. A notification is malleable to political whims.
The executive keeps a grip over crucial decisions like who is included and excluded from the notification, the timeframes and nature of regulatory procedures for large sectors such as coal mines and energy projects. Although there exists a Parliamentary sub-committee for subordinate legislations, the frequent amendments to the EIA barely get noticed by these lawmakers in Parliament.
In effect, EIA decisions have broken the links between the rural economy and ecology. Successive governments have wielded India’s EIA notification as a weapon against communities surviving on land and forests.
Governments have justified the diversion of water from community needs to industry. They have also given harmful and toxic industrial processes the license to ruin workers lives and contaminate entire landscapes. Even if these impacts are assessed through studies done as part of EIA procedures, once the projects start operations, these impacts are written off as the costs of economic growth.
EIA procedures grant conditional approvals to projects. But the monitoring protocols to ensure compliance of an approved project’s environment management measures barely have any intent to enforce the law. The legal efforts to get coal-power plants to comply with emission norms is a case in point.
The one outstanding feature of the EIA process is the public hearings that have to be conducted in the project area before certain classes of projects are approved. This feature has given the EIA notification an iconic status in India because the public hearing mechanism in the EIA notification gave us the right to project information nearly a decade before we got the Right to Information Act of 2005.
Project studies and environmental reports are made available to communities 30 days before the date of a project public hearing. The public hearings gave communities across India the wiggle room to speak truth to power. The disciplining actions of project authorities at these hearings, about who can speak and how, demonstrated to ordinary people how government and corporate power is stacked against their survival and how such power operates through project decision-making.
These processes, seemingly aimed to facilitate participatory democracy, have provoked communities to fight for their rights in the courts and outside. Public hearings have been one of the most important vehicles of politicisation of development in neoliberal India.
In 2005, the Ministry of Environment and Forests declared that it would “reengineer” the Environment Impact Assessment (EIA) notification. The Ministry’s declaration provoked many environmental groups and community organisations who had fought decisions made by the EIA system to protect their private and local common property from legalised take over.
Nearly 300 protesters broke into the Ministry’s office on a morning of November 13, blocked the office entrance for hours and declared the environment ministry dead.
The Ministry’s draft notification was promulgated a year later, a day before it was to expire. The EIA process that was pushed through by the Congress led government in 2006 went on to become its self-goal by 2014. When the UPA government was swept off its seat at the centre by an election campaign slogan of “sabka saath, sabka vikas” of the BJP, the environment ministry’s politically motivated approvals to crony projects were in the eye of the storm.
The slogan turned out to be just that and nothing else. The centralised EIA legacies and resource grabs continued as India’s economy was pushed into greater inequality, unemployment and biodiversity loss under this government.
Today, the results are visible to everyone: state governments are on the verge of bankruptcy, we have more impoverished, indebted and incarcerated people, more ravaged landscapes including the most protected national parks and wildlife sanctuaries, and we have a handful of industrial families and the ruling party itself that has profited through this period.
A new proposal and its implications
The EIA has become the government’s classic extraction device. It is needed to wrest resources from the collective control of communities and hand them over to project proponents supportive of the government.
The 2020 proposed version tries to do the same. The environment ministry’s justification for the latest version of the EIA notification is that it will incorporate all the existing amendments since 2006, the implementing directions of courts and it will decentralise the Ministry’s EIA regulatory functions.
The Ministry’s notice asked for comments on the proposal from the public in 60 days. This period was extended to June 30 following public demand.
What is in the Draft EIA 2020?
- Definitions: Sixty definitions of terms used in the EIA notification are specified for the first time since the notification’s existence in 1994. Terms defined include “violation”, “study area” or “baseline data” for the preparation of an EIA report.
- Two kinds of approvals: Prior environment clearance with expert committee appraisal and environmental permission without expert committee appraisal.
- Three categories of projects: A, B1 and B2 predefined in the notification to determine jurisdiction of environment ministry or state level institutions for securing prior environment clearance or environmental permission. This does away with an earlier step, which required scoping of projects as B1 or B2 on a case-to-case basis.
- A new expert body called the Technical Expert Committee (TEC) with a five-year term has been introduced. The sole function of the TEC is categorising and re-categorising of projects as A, B1 and B2 on scientific principles on a regular basis. At present this is done by the environment ministry.
- The protocol defined for expansion projects is a significant departure from earlier notifications. No prior environmental clearance will be granted if an expansion is without capacity enhancement. Expansion between 10-50% will get exemptions from EIA studies and public hearings. Expansion above 50% capacity will be treated as fresh proposals.
- Exemptions from prior environmental clearance: Forty types of projects including sand or clay extraction projects, community use projects such as digging of wells (listed). Others include manufacturing of solar PV, coal and non-coal mineral prospecting and others.
- Exemptions from public consultation to several projects. Public hearing needed for Category A, Category B1 and expansion projects with capacity increase more than 50%. Prior notice for public hearing reduced to 20 days.
- A project is to be appraised de novo if change in project site location after the public hearing or grant of prior environmental clearance is clarified.
- EC validity for three phases with increased duration: The phases are construction or installation, operation and redundancy, closure and dismantling. Validity for mining projects will be increased to 50 years (currently 30), river valley projects to 15 (currently 10), and all others to 10 (currently seven).
- Annual post-approval monitoring: Non-submission of compliance report by project proponent will attract a daily fine based on which category the project falls into.
- Project violations and non-compliance of approval safeguards: Detailed protocol for cognisance and appraisal of projects that have operated without approval. Violating projects can be regularised based on appraisal and asked to furnish a bank guarantee. The CPCB will issue guidelines for assessment of ecological damages arising out a violation or non compliance.
Major implications of the EIA changes
A reading of the Ministry’s proposal affirms the governmental uses of the EIA. The notification is framed as a decision-making process for granting large projects access to natural resources. Groups of experts are supposed to technically appraise project proposals and recommend if they are deserving of valuable natural resources in exchange for jobs, local development and economic growth.
The draft EIA curtails these appraisal procedures tremendously. This reduced level of scrutiny makes the system highly permissive to uncontrolled natural resource extraction and degradation. For example, the proposed notification’s coverage of urban projects remains superficial.
If the EIA is meant to improve the environment, why are projects that transform the ecologies of the city and monetise urban lands given the least importance in the draft notification?
Even though the regulatory requirements have been thinned out across most sectors, new projects have been incorporated into the EIA notification like waterways and elevated roads. The long list of projects in the proposed draft shows that government has not released its controlling hand as the industry may like.
This characterises EIA as a tool used to wield political control. Despite all promises of the Modi government to free development projects of regulations, the proposed draft shows that the government intends to continue to use EIA as a controlling device so that economic projects and actors can be moulded to political ends.
All the legal amendments undertaken in the Modi regime have been about altering centre-state relations. The proposed changes to the EIA notification are no exception to this objective. The draft notification does away with the requirement of committees to be set up “in consultation” with state governments and gives the central government more control over the constitution of state level regulatory authorities and expert committees.
It limits the state government’s role to only sending their nominations, which can be rejected by the central government. In effect the central government can appoint and dismiss the members on all the state level committees responsible for appraisals and project approvals, thereby being able to directly manage their functioning.
The proposed draft claims to hand over some decision-making to district level committees but this decentralisation only allows for replicating the narrow approach to environmental appraisal, that was first adopted by the central government, at the local level. If food security, labour, health and other socio-economic concerns are not brought into the appraisal system, EIA decisions taken at the local level will be no better than national ones.
The proposed EIA notification undermines the significance of social decisions regarding projects in favour of governmental decisions. Public inputs for proposed and expanding projects has been further reduced or made discretionary and many projects are now outside the purview of public consultations altogether.
This is the crucial favour extended by the government to projects. Public hearings are the only opportunity available to communities to learn about projects and demand social obligations from them. In the absence of this forum, projects can establish themselves in local neighbourhoods without any disclosure of resource extraction, risks posed to communities and without agreeing to meet local development needs.
This effectively reduces the legal standards of environmental decisions. It aims to block legal remedies available to communities affected by harmful projects that operate beyond the law. EIA illegalities can now get “sorted out” in the Ministry rather than be challenged in courts.
This approach adopted in the draft confirms what has been in practice all along; that the EIA is to manage the political compliance of economic actors. It is neither seen nor implemented as a legal instrument for environmental governance by government.
The central government has introduced a number of new laws, amendments and decisions during the COVID-19 lockdown in India. Of these the changes proposed to the EIA notification are one of the most dangerous. They affect an overarching law that applies across sectors, regions and scales of industrial operations.
More significantly, the proposed EIA 2020 also aims to reduce our overall legal and social standards for better environmental scrutiny of projects.
The central government may also control the technical decision-making at the state levels if this proposal is finalised. The EIA 2020 is designed to deny citizens the social, legal and political forums available to protect the environment from bad government decisions.
*Manju Menon and Kanchi Kohli are researchers at the Centre for Policy Research. A version of this article was first published in The Wire