Rebooting Economy IV: Is govt using environmental laws to protect polluting industries?

Rebooting Economy IV: Is govt using environmental laws to protect polluting industries?

The draft EIA (Environmental Impact Assessment) of 2020 being pushed through by the central government seeks to undermine checks and balances on pollution of air, water, and soil and depletion of forests that impose heavy costs on the economy by spreading illness, deaths and loss of livelihoods of millions of people

The practice of providing retrospective environmental clearances began in 1998, during the NDA-I regime when the green ministry first issued such a circular The practice of providing retrospective environmental clearances began in 1998, during the NDA-I regime when the green ministry first issued such a circular

The Environment Impact Assessment (EIA) study has been an important tool of environmental governance in India since 1994. It provides a basic fact-sheet of costs and supposed benefits (not exactly a cost-benefit analysis) of projects like dams, mines and industries that have high potential to damage the environment and local communities.

In 1997, an important and mandatory component was added: pubic consultations before EIA could be finalised and presented for green clearances. The EIA of 1994 was replaced with the EIA of 2006, which specified a four-stage process of green approval: screening, scoping, public consultation and appraisal by expert committees.

Screening is to identify if a project needs an EIA study; scoping sets up the terms of reference (TOR) for EIA study; public consultation or hearing to invite objections and facilitate dialogue with local communities and experts before government approval is sought.

The EIA is issued under Section 3 of the Environment (Protection) Act of 1986  for the purpose of protecting and improving environment and preventing pollution.

Section 3 (1) of the Environment (Protection) Act of 1986 Act reads: "Subject to the provisions of this Act, the Central government shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing controlling and abating environmental pollution."

In March 2020, even as the COVID-19 pandemic spread, the Ministry of Environment, Forest and Climate Change (MoEF&CC) put out a draft EIA of 2020 to replace the EIA of 2006.

The draft EIA of 2020 seeks to achieve the opposite of the very raison d'etre of the EIA - protection, and promotion of environment and local communities.

Also Read: Rebooting Economy III: All that's wrong with India's environmental governance

Here is how.

Brings in retrospective green clearances declared illegal by the Supreme Court (SC)

The draft EIA of 2020 (clause 22) provides for "ex post facto" environmental clearance (EC) to projects (new or expansion and modernisation of old projects) which the SC struck down as "unsustainable in law" on April 1, 2020 in the Alembic Pharmaceuticals Ltd versus Rohit Prajapati & others case.

The draft says, in case of a project operating without the mandatory prior-environment clearances (prior-EC), would be asked to provide two plans - "remediation plan and natural and community resource augmentation plan", corresponding to 1.5 times the ecological damage assessed and economic benefit derived due to violation.

It also proposes a late fee of Rs 1,000 to Rs 10,000 per day on the violators. The amount may seem stiff not when the value of one day's mining of iron ore, coal, or even stones and sands is considered.

While ruling "ex post facto" environment clearance as illegal, the SC had, in its April 2020 judgement, explained the logic: "The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and an anathema to the EIA notification dated 27 January 1994..."

It added: "The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision-making process have been completed."

It also pointed out that since the retrospective clearance is a "purely administrative decision", it "cannot override the Environment (Protection) Act of 1986" - which is the governing law.

The Pune bench of the National Green Tribunal (NGT) had earlier struck it down in January 2016. Ruling on a ministerial circular of May 14, 2002 which sought to grant retrospective green clearances, the NGT ruled that the circular "is void, ab initio and ought to be struck down" because it has no legal basis.

The practice of providing retrospective clearance began in 1998, during the NDA-I regime, when the green ministry first issued such a circular. The 2002 circular was the third one and was supposed to be the "final" opportunity for polluting projects running without green clearances.

The practice resumed during the NDA-II regime. At least two more such circulars were issued on March 14, 2017 and March 8, 2018.  

Now this has been made a part of the EIA.

It is not a revelation that pollution of air, water and soil imposes a heavy cost on people living nearby by spreading illness and deaths. Depletion of forests not only causes global warming and climate change but deprives millions of people surviving on forests of their source of livelihood too.

The SC has played a big role in allowing retrospective green clearance.

The April 2020 ruling cited above did declare it illegal ("unsustainable in law") and yet overturned it in the same judgement by expounding the "principle of proportionality".

What the court meant by the "principle of proportionality" is this: the polluting industries in question operating without prior legal authorisation (a) had been operating for many years and "have made infrastructural investments and employed significant numbers of workers" (b) obtained ECs in 2002 and 2003 (even though retrospectively) and (c) in similar cases of violations in the past, the apex court had not revoked their clearances or ordered their closure as the NGT ruling of 2016 did.

In effect, the apex court overruled its own rule declaring "ex post facto" green clearance illegal.

Also Read: Rebooting Economy II: What stock market boom means to people and economy

Denying citizens' right to complain against green violations

The draft EIA of 2020 denies people's right to object or complain against violations of environmental laws by denying them a platform (public hearing while finalising EIA), thereby striking out transparency and accountability from the green clearances.

The draft lists four ways (clause 22) in which a violation of environmental laws can be taken "cognizance" of (i) suo motu application from the violating project (ii) reporting by any government authority (iii) detected by appraisal committee (giving green clearances), and (iv) detected by the regulatory authority.

This makes environmental violations a strictly government-to-industry business. There is no role for communities that bear the cost of pollution or experts and civil society.

Here is food for thought.

In December 2018, the medical journal Lancet published a study saying India lost 1.27 million lives in 2017 (12.5% of total deaths that year) to air pollution. The life expectancy of Indians would have been higher by 1.7 years had the air quality been good, it added.

What would be the cost of lives lost and the healthcare cost of millions of others who fell sick from air pollution?

Exemptions from green clearances, EIA study, and public consultations

The draft EIA of 2020 exempts a wide range of projects and activities from prior environment clearance, EIA studies, and public consultations - all key safeguards for local communities and environment.

All projects have been categorised into A, B1 and B2 on the basis of their potential social and environmental impact and spatial extent of these implications.

B2 projects are completely out of EIA coverage and public consultations. They don't even need environment clearance (EC); instead they will get "environment permission (EP)" without requiring assessment of the Expert Appraisal Committee.

These projects include all inland waterways, expansion of national and express highways up to 100 km; up to 25 megawatts hydroelectric power; irrigation projects irrigating 2,000 to 10,000 ha land; small and medium cement plants; MSMEs making bulk drugs, synthetic rubber, organic chemicals, paints and construction projects with build-up area up to 1.5 lakh sqm, etc.

All they need is to present the Environment Management Plan (EMP), which would be a self-declaration of the project without the green ministry's involvement.

No public consultation would be required (clause 14) for projects declared as important for defence, security, or strategic purposes by the central government. In such cases, no information would be placed in public domain (clause 5(7)) either.

How a project would be defined thus has not been spelt out.

Further, no public consultation would be required for any oil, gas and slurry (coal and other ores) pipelines "passing through national parks or national sanctuaries or coral reefs or ecologically sensitive areas" or in border areas; highways/expressways/ring roads/multi-modal corridors in border areas (clause 14; items 31 and 38 of the Schedule).

Centralisation of power

Just as the central government has done with inter-state water disputes and dam safety, here too states are short-changed.

In the existing EIA of 2006, the central government is required to set up decision making and regulatory bodies at the state level "in consultation" with respective state governments.

Also Read: Rebooting Economy I: Why stock market is booming when COVID-19-hit economy sinks

Not so in the draft EIA of 2020. "In consultation" does not figure either in setting up a decision-making a state and union territory-level Expert Appraisal Committee (SEAC or UTSEAC) or regulatory body Environment Impact Assessment Authority (SEIAA or UTEIAA). The states and union territories would merely forward names.

Doesn't address flaws in existing EIA framework

The EIA of 2006 is full of holes, none of which is filled by the draft EIA of 2020.

The CAG's performance audit report of 2016  on 'Environment Clearance and Post-clearance Monitoring' pointed out: "No penalty was imposed by the Ministry for violating conditions of Environmental Clearance in the last two years".

It said, in 25% cases the EIA studies did not comply with the terms and conditions set; cumulative impact study/assessment lacking and the SC's 2011 directive to appoint a regulator at the national level "to carry out an independent, objective and transparent appraisal and approval of the projects for environmental clearances and to monitor the implementation of the conditions laid down in the environmental clearance" has not been implemented.

There are plenty of other problems.

Firstly, the EIA study is a self-certifying exercise. Just as corporate entities appoint and pay for auditing of their accounts (leading to massive frauds in the Satyam Computers and IL&FS, for example, which went undetected ), the EIA studies are done by agencies hired and paid for by those setting up the project.

The fallout is evident.

The Vedanta's alumina project in Odisha's Lanjigarh (for which it needed to mine the Niyamgiri hills for bauxite) went into production after carrying out a partial and rapid EIA study in the rainy season, which is expressly prohibited.

The EIA that was presented for public consultation was different from the one presented for environment clearance and yet green clearances were granted.

In the case of French company Lafarge's limestone mining in Meghalaya's Khasi hills for its cement plant in Bangladesh, the EIA report said the mining area was "wasteland" and "covered with rocks". After production started in 2006 (mining had broken up 21.44 ha forest land by then), the hills turned out to be "natural and virgin forests" with rich flora and fauna.

In 2011, the Supreme Court acknowledged the wrongdoings but used "doctrine of proportionality" to let the legions of central and state government officials and pollution control agencies involved off the hook.

Secondly, exempting EIA studies for small mining, thermal or hydro-electric projects have devastating impacts when allowed in clusters and industrial estates. For example, small sand mining projects in the Aravali hills, iron ore mining in Bellary, and bauxite mining in Andhra Pradesh have caused havoc with their environment.

Also Read: Nitin Gadkari calls Environment Ministry guidelines outdated, hindrances to growth

Clusters of small thermal plants and multiple small hydro-electrical projects in a single river basin present big environmental threats, which have been acknowledged by governments and courts but went unaddressed in the EIA of 2020.

Monitoring of projects for environmental mitigation is another major concern.

The CAG report of 2016 said there wasn't even a data base for complaints received from states; the MoEF&CC itself hadn't set up a separate monitoring cell as the apex court had asked for and third-party independent monitoring was virtually non-existent.

Non-compliance with pollution mitigation conditions ranged from 5% to 57% in the samples it examined.

What does the draft EIA of 2020 propose to do about it?

It has made compliance self-certifying.

That is, the polluting industries themselves would file annual "compliance reports" about the environmental mitigation, making mockery of the Environment (Protection) Act of 1986 and other such laws.

Environment protection law to protect polluting industry

Instead of carrying out meaningful dialogue and debate, the MoEF&CC sought to rush the draft EIA of 2020 through during the pandemic lockdown.

Despite strong protests from experts, the window for filing objections was limited to June 30. The Delhi High Court intervened on the same day to extend the deadline to August 11, and later asked for the draft EIA of 2020 to be translated into all 22 languages listed in the Constitution (instead of just English and Hindi) and uploaded on the websites of all central and state environment ministries and pollution control boards for wider reach.

The rush to notify the new EIA is to speed up clearances to projects that impose heavy social and environmental costs on the economy.

Ironically, the EIA is an instrument that draws its power from Section 3 of the Environment (Protection) Act of 1986 that aims at "protecting and improving the quality of the environment and preventing controlling and abating environmental pollution".

Economic historian Prof. Dirk Philipsen of Duke University wrote about what China found when it tried to calculate the social and environmental cost of polluting industries in 2004. He said a study was published in 2006 which found the cost "devastating".  

In his 2015 book, 'The Little Big Number: How GDP Came to Rule the World and What to Do About It', Philipsen wrote that 20% of China's GDP was found directly based on depletion of resources and degradation of the environment and in several provinces, pollution-adjusted growth rates turned out to be "negative".

Here is about the depletion of forests in India.

According to a study by a Columbia University scholar, in six years between 2014 and 2020, forest land nearly equal to the size of Nagaland has already been approved for non-forest use or is pending approval.

During this period, 14,822 sq km of forest land has been diverted, while during the previous 39 years between 1975 and 2014, the diverted forest land stood at 21,632.5 sq km.

India's first National Forest Policy of 1988 aimed to raise forest cover from 23% to 33% (geographical area).  In December 2019, the MoEF&CC released its report on forest cover stating that India was far behind its target at the current forest cover of 24.56%.