A primer on Environmental Clearances in India and understanding criticism of Draft EIA 2020

The new draft EIA notification 2020 has been in the news. While I was eager to understand the criticism better, a lack of background knowledge in the area was a hindrance. A budding environmental engineer Nikhil B Nidhiri who is also my brother gave me a good backdrop and an understanding of the criticisms. I invited him to write this post. Here goes !


An Environment Impact Assessment (EIA) is a study to predict the effect of a proposed activity/project on the environment. EIA is one of the successful policy innovations of the 20th century for environmental conservation. It is a study that the firm undertaking a project has to do estimating the environmental impact of their project. The EIA then becomes a reference for the concerned authority to provide/deny clearance for the project.

It was in 1970 USA that EIA was introduced and today it is a mandatory process practiced in more than 100 countries. (Find a history of EIA in India and the world here). In India, EIA requirement for obtaining environmental clearance was mandated by the EIA Notification 1994, brought out in January 1994 under the Environment (Protection) Act of 1986. A new notification to this was released in 2006 and now the government in 2020 has proposed another notification. The draft EIA Notification 2020 has been put in the public domain soliciting inputs from the public which needs to be submitted by August 11th 2020. The draft in its current form has received a lot of flak for its proposed changes that dilute the EIA process which will have long term ill effects on our environment.

So, here I try to break down the environmental clearance process and then briefly explain few of the points of concern raised by various groups and individuals against the draft EIA 2020. This is not aimed at helping one understand the whole gamut of EIA 2020, but explain few salient points of criticism that definitely need to be amended in the current draft.

What does EIA notification 2020 concern with ?

As per Indian law, any individual/company/organisation which intends to start a project has to first get Environmental Clearance for the same from the authorities. The project might be setting up of new industry, infrastructure projects, development projects. In order to get the environmental clearance, the project proponent (individual/company/organisation) must do an assessment of environmental impact (i.e EIA ) and subsequently prepare a Environment management plan (EMP) which gives strategies to manage environmental impact as identified in EIA. The project proponent also has to sit for a public hearing and a scrutiny process by an expert committee. After these steps, the authority decides whether to grant environmental clearance for the project or not.

The EIA notification details the methodology of getting clearances, including – how to apply for clearance, who is the authority granting clearance, how the expert committee which scrutinises the EIA report must be organised, how EIA must be done by the project proponent and what all factors it must include, how and who must organise public consultations etc. There is also a section called ‘Schedule’ in EIA notification which lists out all the projects that must get the environmental clearance.

Before we delve deeper into the salient features of the current draft, let us understand some of the terms used and the sequence of steps a firm has to follow to get environmental clearance.

Some basic terms to know

Schedule – It is a section in the EIA notification which list out the different types of projects which require Environmental clearance. Also these projects are categorised into A,B category ( in 2006 notification) and now as A, B1, B2 ( in 2020 notification) in the schedule. This categorisation is based on specified threshold limits for the size and production capacity of the projects.

Regulatory authority – The authority which gives environmental clearance for projects. In India, there are two levels of such authorities, for central level and state level:

  1. Ministry of environment, forest and climate change (MoEFCC) – for Category A projects.               
  2. State environment impact assessment authority (SEIAA) – for Category B projects.

Appraisal committee – Committee of experts who does scoping and appraisal (scrutiny) of EIA report. Scoping is the process in which the terms of reference for the EIA study is specified.

  1. Expert appraisal committee (EAC) – for category A projects                                                                     
  2. State expert appraisal committee (SEAC) – for category B projects

Prior Environmental clearance (or) Environmental Clearance (EC) – The clearance granted by regulatory authority for projects, before any construction work starts, based on recommendations of the expert committee.

Sequence of steps for acquiring Environmental Clearance in India

  1. Screening   – Preliminary assessment of size and capacity of a project to determine whether EIA is necessary for getting clearance.
  2. Scoping – Here, the Terms of Reference (ToR) for conducting EIA study for a project is listed out to the project proponent by an expert committee. ToR is simply the committee telling the firm for what all aspects of the project must potential environmental impact be studied.
  3. Preparation of Draft EIA report – EIA is done by project proponent and the EIA report and the EMP report is prepared. (EMP or Environment Management Plan as explained earlier describes the various measures that would be taken by the project proponent to reduce the environmental impacts.)
  4. Public consultation – The EIA and EMP reports are made available to the public and they are given the opportunity to express their views on the project and the EIA and EMP studies done. This has two components; a public hearing at site or in close proximity and obtaining written responses. The responses and concerns the public raise must be taken into consideration and properly documented.
  5. Preparation of final EIA – The response of public that was documented, is studied by the project proponent and any further EIA study necessary is done. Then, the final EIA and EMP report is prepared incorporating any changes. A response document is also prepared by project proponent addressing the concerns in the public consultation.
  6. Appraisal – Detailed scrutiny by expert committee on the final EIA report and public consultation response document. The project proponent must be present for furnishing clarifications. After the scrutiny, the expert committee submits its recommendations to the Regulatory authority for final decision.
  7. Grant or rejection of Environmental Clearance – The Regulatory authority, taking into consideration the recommendations of the expert committee, takes the final decision on environmental clearance for the project.

Does every project need an EIA ?

Projects which meet certain criteria owing to it scale or category require EIA. Details regarding this are given in the ‘Schedule’ of EIA notification.

  • In 2006 notification, there were two categories; A,B. Projects in category B applying for environmental clearance are further divided into two categories B1 and B2 based on a screening process done by an expert committee. The B2 projects don’t need to do an EIA while category A & B1 projects must do an EIA.
  • In 2020 notificationn there are now three categories; A, B1 & B2. B2 projects don’t need EIA. The A & B1 projects must do EIA. The main difference now is that there isn’t an individual screening done to classify if a firm is in B2.

Few concerns raised about Draft EIA notification 2020

Having understood the backdrop above, let us now dive in and understand few of the concerns raised by various parties.

Firstly, the new draft has added a lot of new clauses and sections bringing in more clarity and reducing the ambiguities that existed in the 2006 draft. This is a really good step. The protests against the draft are not protesting the fact that there is change brought about but with certain aspects of the change. These certain aspects are aimed only at easing processes for businesses and end up killing the larger objective of an EIA, which is to protect the environment.

That said, let us look at the concerns.  

POST FACTO CLEARANCE in ‘dealing of violation cases’ clause and no power for public to report violations

This is a main discussion point in the arguments against the 2020 draft. In March 2017, the Environmental Ministry passed a notification stating that any project currently functioning without EC can apply for environmental clearances. This facility seen as a one time offer to save these industries from closing down due to lack of a clearance has now been turned into a permanent provision under Clause 22(2). Lets now see whether, as some people suggest, projects can be illegally started without getting environmental clearances, and then later they can get post facto clearances when the violation is reported.

As per clause 22, (2) The cases of violation will be appraised by Appraisal Committee with a view to assess that the project has been constructed or carried at a site, which under prevailing laws is permissible or expansion has been done which can be run sustainably under compliance of environmental norms with adequate environmental safeguards. In case, finding of the Appraisal Committee is negative, closure of the project shall be recommended along with other actions under the law including directions for remediation.

So, by this new clause, if a project starts functioning without clearances it can still get approval later on if it is reported, provided the appraisal committee finds the project doesn’t violate environmental norms. If the appraisal committee finds that the project violates the environmental norms, it can ask for the closure of project.

But there is a bigger point to consider here.

As per clause 22, (1)The cognizance of the violation shall be made on the:-
(a) suo moto application of the project proponent; or
(b) reporting by any Government Authority; or
(c) found during the appraisal by Appraisal Committee; or
(d) found during the processing of application, if any, by the Regulatory Authority.

This means that, a project operating without environmental clearance or performing violations will come under the scanner only if the project company itself or any government authority reports the violations. If anyone else reports the violations it won’t be taken into consideration. So, the project proponent can continue with the violations and keep operating without environmental clearances unless they themselves go report it or some government authority reports it. The power of the public in reporting violations is taken away by this clause.

New ‘strategic projects’ clause added

Another concern is introducing an option to classify projects as strategic that gives them certain exemptions. These projects will still need an EIA, if the size and and category so qualifies. But these can skip the step of Public consultation and the project documents won’t be available in public.

EIA reads

 “All projects concerning national defence and security or involving other strategic considerations, as determined by central government.”   

Adding national defence and security projects under this clause is understandable, but projects involving other strategic considerations ?   Also, nothing is defined about any considerations or criteria in order to determine if a project is strategic, except that the central government can determine it to be so.

Public consultation weakened

Firstly, the notice period for public to furnish their responses has been reduced to 20 days in 2020 notification, from 30 days in 2006 notification. Further, public consultation is now exempt for the following projects:

  1. Strategic projects defined by central government.
  2. Offshore projects beyond 12 nautical miles. Note this includes offshore drilling, trawling, deep sea mining, and offshore wind energy projects.
  3. all linear projects under item 31 and 38, in ‘Border Areas’. Let’s dissect this statement a bit further. Item 31 is ‘Pipelines, Oil & gas transportation pipe line (crude and refinery or petrochemical products), passing through national parks or sanctuaries or coral reefs or Ecologically Sensitive Areas & Slurry pipelines (coal, lignite and other ores) passing through national parks or sanctuaries or coral reefs, Ecologically Sensitive Areas.’ It is important to note that hitherto, Item 31 projects all fall under category A irrespective of its extent or size. Item 38 is ‘Highways or Expressways or Multi-modal corridors or Ring Roads.’ Also, one important point to note here, in 2020 draft, “Border Area” is defined as area falling within 100 kilometres aerial distance from the Line of Actual Control with bordering countries of India. Such projects which could be harmful to the ecology and people are being exempted from public consultation, if they fall in border areas.
  4. Building Construction and Area Development projects’ and ‘Elevated roads or standalone flyovers or bridges’ are exempt even if they are proposed to be built near eco sensitive zones and protected areas.

‘general conditions’ diluted

‘General Conditions’ is a clause which reclassifies projects falling in category B under normal considerations to be classified as Category A.           

  • These conditons in 2006 notification is                                                                                                            The projects falls in whole or part within 10 km of (a) Protected Areas notified under the Wild Life (Protection) Act, 1972, (b) Critically Polluted areas as identified by the Central Pollution Control Board from time to time, (iii) Eco-sensitive areas as notified under Environment (Protection) Act, 1986, and  (iv) international boundaries.
  • The 2020 notification, reduces the distance to 5 km for most of the projects defined in the schedule, except 4 types of projects, which are river valley projects, thermal plants, airports, water ports and ship breaking yards.
  • Further in the 2020 notification, if a project is in a ‘Severely Polluted Area’ or ‘Eco-sensitive Zone’, the only requirement is that the project not fall within the boundary, i.e a reduction of distance to 0km.                                                                      

So, many projects which would have been in Category A, will now be in Category B.

40 types of projects exempted from the need to get environmental clearance

In the 2020 notification, clause 26 has listed 40 cases of projects which have been exempted from the need of acquiring environmental clearance. Most of the cases which come under this are traditional community based industries, small scale non polluting industries, small digging and mining by communities etc. But there are a few types of industries where such an exemption may be problematic. They are listed below:

  • Manufacturing unit under the Ministry of Defence or strategic units for explosives, detonators, fuses including management and handling units or depots under the Ministry of Defence.
  • Air strips that do not involve bunkering or refueling facility and / or Air Traffic Control including non-commercial airstrips.
  • Manufacturing of products from polymer granules or manmade fibers from granules or flakes or chips.
  • Solar Photo Voltaic (PV) Power projects, Solar Thermal Power Plants and development of Solar Parks, etc.
  • Customary extraction of sand and ordinary earth from sources situated in Gram Panchayat for personal use or community work in village.
  • Manufacturing of Linear Alkyl Benzene Sulphonic Acid (LABSA) from LAB.

Validity period of Environmental clearance increased 

The maximum possible validity of an environmental clearance given to mining projects was 30 years in the 2006 notification, which has now been increased to 50 years in 2020 notification.

monitoring Post Environmental clearance reduced

For post EC monitoring, companies are asked to submit compliance reports. The compliance reports are reports regarding whether, the terms and conditions specified when EC was granted, is being followed. It includes whether the effluent and pollution standards are kept under check. In the 2006 notification, the time period to submit compliance reports was once in every six months. But in 2020 notification, the time period has been reduced to once in every 12 months.

But, post clearance monitoring is an area that the 2020 notification gets more things right than it gets wrong. Now, the regulatory authority can seek such compliance reports at more frequent intervals, if deemed necessary. Also, in case of failure to submit yearly compliance reports a late fee shall be levied. If such non-submission of the compliance reports continue for a period of consecutive three years, the environmental clearance shall be deemed to have been revoked without any notice in this regard.

Conclusion

It is a welcome move that laws are updated in the country to keep with the times and also to facilitate easier workflow for businesses. There has always been a conflict of interest between businesses and environment and such conflicts will continue to be. A law should try and keep a balance between both interests. The current modifications to the law have a few concerning aspects which tilt the scales excessively in favour of businesses.

If businesses never sleep in the making of money, environmentalists and citizens must lose some sleep to ensure their children have a world to sleep, in the future.

3 comments

  1. A very good article looking at the pros and cons of the proposed EIA. Obviously you have highlighted certain concerning issues which need to be highlighted.

    However, when you say “The current modifications to the law have few concerning aspects which tilt the scales excessively in favour of businesses” it seems to convey that there are not many concerning aspects to be worried about. If you are trying to say that the proposed modifications are tilting the scales excessively in favour of businesses, then it should read “The current modifications to the law have ‘a’ few concerning aspects which tilt the scales excessively in favour of businesses. Just a suggestion.

    Like

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