EIA draft needs a comprehensive relook

Rama Mohana R Turaga | Updated on August 07, 2020

Public feedback Simply eliciting public comments is not enough to incite meaningful deliberation N Rajesh   -  N Rajesh

Post-hoc green clearance for projects defeats purpose of regulation. The Centre must consult stakeholders before finalising the draft

The gas leak in May at the LG Polymers plant in Visakhapatnam that killed 11 people and injured several others, had received international attention. Investigations revealed that the plant was reportedly operating without the requisite environmental clearance from the government after expanding its production capacity. This is not the first instance of such a regulatory violation and will not be the last.

Thus, in the controversial Environmental Impact Assessment (EIA) 2020 draft notification, published in March, the Ministry of Environment, Forests, and Climate Change sets out a process (Clause 22: “Dealing of Violations”) for post-hoc legalisation of projects that start construction and/or operation prior to receiving an environmental clearance. Among several concerns raised by civil society groups with the draft notification, Clause 22 turns out to be one of the central issues.

EIA regulatory violations

The EIA has been one of India’s most contested policies in the last two decades. In the context of the industrialisation-led economic development model, at the heart of the contestation is the question of what constitutes an appropriate trade-off between industrial development and environmental protection. The regulation was first introduced in 1994 through a notification under the Environmental Protection Act, 1986. It was significantly amended in 2006, superseding the 1994 notification, and the draft EIA 2020 notification is an attempt to remake many provisions of the 2006 notification.

Dealing with projects that fail to obtain prior clearance has been a difficult issue for the regulator, since the project proponents could cite sunk investments if the penalty for violation involves shutting down the project. On the other hand, post-hoc legalisation of such violations could lead to perverse incentives for the industry, rendering the entire regulation redundant.

If it is easier and cheaper to receive an environmental clearance after the violation is detected, then why would any project seek prior environmental clearance? This proposal defeats the core purpose of the regulation.

Legalisation process

To deal with this problem of violations, in the draft notification, the Ministry has laid out a process that such violators should follow in order to continue their operations legally. The process involves, first, the Appraisal Committee assessing whether the project “can be run sustainably under compliance of environmental norms with adequate environmental safeguards”. If the answer is no, it can recommend closure of the project. If the Committee’s answer is yes, then it will require the project proponent to assess the ecological damage and prepare a remediation plan as well as a “natural and community resource augmentation plan”, along with an EIA report. The project proponent is required to submit a bank guarantee, equivalent to the cost of the remediation plan, prior to receiving an environmental clearance.

In addition, there are monetary penalties specified for each day the violation occurs, the period being April 1 of the year in which the violation occurred to the date of application for the legalization of violations.

The question is, to what extent do these processes deter industries to not violate the requirement of prior environmental clearance? The answer is not straightforward; first, the damage assessment is carried out by an accredited third party hired by the project proponent, raising concerns of conflict of interest. Second, are the penalties, ranging from ₹1,000 to ₹10,000 per day for the period of violation, are high enough to act as a deterrent? In sum, can the regulations ensure that violation doesn’t become the optimal choice for the project proponents?

Further, according to Clause 22, only the violators themselves or a regulatory or governmental authority can bring the violation to notice. It is not clear from the notification if any other stakeholders, for example interested individuals or civil society organisations, have a legal basis to report violations.

Multi-stakeholder deliberation

The complexity involved in just one clause highlighted here is an indication of the need for a wider and more meaningful deliberation on the entire draft notification, beyond simply eliciting public comments. A way forward for the Ministry is to follow its own example, which it set in 2009, albeit under a different government. When a significant amendment was proposed to the 2006 EIA notification, stakeholders raised concerns regarding the dilution of a few important provisions. The Mauskar Committee, comprising officials from the Ministry and other environmental regulatory bodies, conducted a series of meetings with various stakeholder groups — industrial associations, civil society organisations, State and Central government agencies — and made recommendations to the Ministry on the appropriateness of various amendments, based on which it decided to exclude some amendments from the final notification.

The report, made available in the public domain, recorded the deliberations of the stakeholder meetings and provided a rationale for its recommendations.

Researchers argue that such participatory processes are likely to generate greater legitimacy for the regulations, potentially reducing conflict during implementation. Combined with research which finds that conflicts arising out of environmental and social issues impose real costs on businesses, it is important that the agencies adopt a more deliberative approach that takes into account various stakeholder views. Thus, it might be in the interest of the Ministry as well as the regulated industry that the draft notification is deliberated through a meaningful participation of various stakeholders to generate greater consensus.

Prime Minister Narendra Modi, speaking at Samvad-the Global Hindu-Buddhist Initiative on Conflict Avoidance and Environment Consciousness in 2015, had said “...we, the present generation, have the responsibility to act as a trustee of the rich natural wealth for the future generations.” This is one of the fundamental tenets of the principle of sustainable development. EIA regulation is one of the few tools that we have to ensure that we are the true trustees of our natural environment. It is imperative that the government incorporates a wide range of perspectives, before the new notification is finalised.

The writer is a faculty at IIM-Ahmedabad. Views are personal

Published on August 07, 2020

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