By: Lakita Gaichand
Law Centre-1, Faculty of Law, University of Delhi
Being a signatory of Stockholm Declaration, 1972, India adopted several pollution-related law but it was only after the Bhopal Gas Tragedy, that a need for strict Environment Protection Law was felt and the Environment Protection Act, 1986 was formulated. Following the provision of EPA, 1986, Section 3, the government formulated the policy of prior Environment Impact Assessment before providing clearance to projects in 1992 which was amended in 2006. Now a draft is notified for amends which has become a bone of contention between the Government and the Environmentalists.[i]
- Issue of ‘Post facto clearance’ :
It suggests that even if a project has come up without environmental clearance, it could still continue to operate under the provisions of draft notification.
There are numerous projects already operating without environmental clearance, to name a few – LG Polymer Plant and Oil Refinery in Assam which made to the headlines for causing disasters.
Providing room for post-facto clearance is like legitimizing illegitimate and environment degrading projects. The Apex Court in Alembic Pharmaceuticals Ltd. vs Rohit Prajapati on 1 April 2020[iv] judgement pronounced that “Environmental Law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for Sustainable Development.”
- Public Participation :
The list of exempted projects from public participation has been modified and broadened to include projects related to modernisation, irrigation, all building construction and area development projects, national security projects etc.
The time provided to people to submit a response in projects open to public scrutiny is 30 days, which the draft proposes to reduce down to 20 days. Given the public participation due to COVID-19 scenario where the participation is already meagre, it is a retrospective step.
It was only when the Court stepped in that the last date for receiving responses was extended from 30 June to 11 August 2020 and asked the Centre to print the draft EIA notification in 22 languages mentioned in the Eighth Schedule of the Constitution.
The Supreme Court, August 13, 2020, rejected the Centre’s petition challenging a Delhi High Court order to print the draft Environmental Impact Assessment (EIA) 2020 notification in 22 languages.
- Reclassification of projects & exemptions :
The draft classifies projects under three categories A, B1 & B2. It reclassifies certain highly polluting projects like thermal power, cement and fertilizers into B2 category which requires minimum scrutiny.
Earlier the projects ( Building projects ) with a floor area greater than 20,000 sq. metres required detailed scrutiny by State level authority and on environmental clearance. This threshold has been increased to 1,50,000 sq. metres. This amend can have a severely detrimental effect on the environment.
Currently, the authorities are mandated to monitor projects for compliance every six months, but the draft proposes to further dilute this norm by increasing the frequency to 1 year. Gross negligence by any firm in 1 year can cause catastrophic environmental degradation.
The filing of Compliance report by the project proponent himself violates the Principle of Natural Justice i.e. ‘Nemo judex in causa sua’, a Latin phrase which means ‘No-one is a judge in his own cause.’
- Report of Violations:
The draft proposes that violations can be reported by a government representative or project proponent which further reduces the scope for public participation.
The cognisance of the violation shall be made on the suo moto application of the project proponent; or reporting by any government authority; or found during the appraisal by Appraisal Committee; or found during the processing of the application, if any, by the Regulatory Authority,” the draft reads.
This implies that the onus to report a violation is on the project developer.
The right to a clean, green and healthy environment is a part of our Fundamental Rights under Article 21 of the Constitution; Protecting the environment is also a part of the Directive Principles of State Policy under Article 48-A and the Fundamental Duties of all citizens under Article 51-A(g). Such constitutional obligations have been highlighted in the letter to recast EIA 2020 altogether and urged the govt. to replace it with a people and habitat friendly policy which places environmental and ecological priorities higher than exploitative development.