We are herewith releasing the full text of the letter addressed today to the Union Minister for Environment, Forests and Climate Change, Shri Prakash Javadekar by Brinda Karat, Member, Polit Bureau, CPI(M) giving the CPI(M)’s response to the Draft Notification for Environment Impact Assessment (EIA) 2020.
July 17, 2020
The Union Minister of Environment, Forests and Climate Change,
Government of India,
Namaskar Shri Prakash Javadekar ji,
This note is further to my letter of May 5th requesting an extension for time for public responses on the Draft Notification for Environment Impact Assessment (EIA) 2020 which is to supersede the EIA Notification 2006. The Delhi High Court has extended the deadline for public feedback to August 11 which is a positive intervention.
Kindly consider the attached Note as a formal Response on behalf of the CPI(M) objecting to the Draft EIA Notification 2020 on the grounds detailed in the Note.
Comments on behalf of the CPI(M) on the Draft EIA Notification S.O. 1199(E) dated March 23rd Issued by Ministry of Environment, Forests and Climate Change
Some General Issues:
It is clear enough that India’s environment regulation structure is not robust and needs correction. EIA is part of this structure. India has improved its position in the World Bank’s Ease of Doing Business Index to rank 63 out of 190 countries in 2020, an improvement of 14 ranks compared to last year. However, India ranked an extremely low 168 out of 180 countries in Yale University’s Global Environment Performance Index a drop of 2.9 points. This clearly shows that the priority of the Government is to help business, including by dilution of environmental regulations and with serious consequences for the environment, and the lives and livelihoods of those dependent on natural resources.
After one and a half decades of the EIA Notification 2006 (henceforth EIA 2006), this was an opportunity to use this experience to redraft the EIA guidelines so as to ensure tighter regulations and strict monitoring and implementation. Unfortunately the Draft EIA Notification 2020 (henceforth Draft EIA 2020), instead of ensuring that weaknesses in EIA 2006 are addressed, has done the opposite.
1. Draft EIA 2020 has been issued under Section 3 of the Environment Protection Act, 1986. This gives power to the Central Government to take measures “for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.” Draft EIA 2020 far from satisfying the statutory requirement to “protect and improve the environment,” is on the contrary designed to dilute existing protections through different means. Moreover the Draft seeks to supercede not just EIA 2006 but also circumvent various rulings made by the National Green Tribunal and Courts, including the Supreme Court, against the Central Government’s attempts to amend or otherwise dilute environmental regulations. Therefore the legality of this exercise itself is in doubt and is liable to be struck down by the Courts.
2. Draft EIA 2020 is part of a wider policy approach of the present Government to appease corporate interests and meet their demands in the name of encouraging investment and facilitating “ease of doing business.” This includes policy decisions for dilution of environmental regulations for approval and compliance by industries. The changes made to liberalise and de-regulate commercial mining with relaxed environmental norms and time-frames are part of this approach. The proposed changes are not guided by environmental concerns but by the concerns of corporates.
For example Draft EIA 2020 does not at all address a critical experience of the last several years, namely the role of Accredited EIA Consultant Organizations (ACO) who prepare the initial EIA Report on behalf of the project proponent, and the highly unsatisfactory lack of rigour in these Reports which are often known to be simply copied from other Reports. The conflict of interest between an agency employed and paid by the project proponent and the mandate of environmental protection laws is obvious. Linked to this is the difficulty in accessing EIA Reports even though there are rules for their publication. One of the important aspects of public consultations before projects are approved is full prior information, which is adversely affected by lack of access to EIA Reports and the biased as well as poor quality of information contained in them. Only summaries of the EIA Report are made available for public consultation. Draft EIA 2020 makes this entire EIA Appraisal process even more opaque. Surely a point for consideration is how to improve the process and ensure preparation of EIA Reports by public or other independent authorities.
3. Most objectionable is the fact that in the entire document the concerns of adivasis who are going to be the most affected community due to the dilution of environment regulations do not form any part of the notification. The words Adivasi, tribal, Gram sabha, Forest Rights Act, Fifth Schedule, Sixth Schedule, PESA find no mention. In the definition of Baseline data ( Clause 3 (5), or in the definition of General Conditions (3.30), or in the section on public consultations (3. 46), with regard to land acquisition (17(5)d), the constitutional and legal rights of Adivasi communities (17.d) are ignored. This alone is strong enough ground to reject the notification.
4. EIA 2006 was followed after four years by the EIA Guidance Manual for Mining of Minerals prepared by the ASC Hyderabad and released in February 2010. This manual which lays down various parameters for Terms of Reference, EIA guidelines etc was linked to EIA 2006 definitions and clauses. With the proposed supercession of these guidelines by Draft EIA 2020, what will be the status of the 2010 manual guidelines? This is all the more important because of the opening up of the mining sector to commercial interests. Regardless of the terrible human and environmental costs of opencast mining, this is the major method of mining being approved by the Government. The last decade has shown the destruction of air, water and land around these open cast mining sites. With doubt as to the status of the Guidance Manual, there is nothing in Draft EIA 2020 which even recognizes leave alone addresses these intensified threats to the environment through what mining workers refer to as “slaughter mining.” Also importantly the Guidance Manual of 2010 specifically mandate the responsibility of project proponents to ensure the remediation measures for closure of mines to ensure that post mining, the land is restored to its original state. This is an ongoing process which is reviewed every five years according to the manual. However, who is responsible for this post-project remediation and who will monitor it, given the massive destruction being caused, is an urgent issue which needs to be considered and addressed, but Draft EIA 2020 is silent on all this.
5. On certain aspects, Draft EIA 2020 promotes a centralization of authority with the Ministry. For example in Clauses 6, 7, 8 and 9 in the constitution of important committees such as appointments to the Expert Appraisal Committee at the central and state level and also to the important Technical Committee, the Ministry has the sole right for appointment and even in the case of State Level EIAACs, the Union Ministry retains the right to constitution of these Committees and thereby to intervene at the State level. These committees form the architecture of the environmental oversight required. Without a mandate for autonomy, these committees may well become rubber stamps for what the Government wants approved. Unfortunately in several cases in the recent past this has proved to be the case. The Ministry in Clause 11 even assumes the right to form more than one expert committee either at the Centre or in a State. In other words if the Central Government is concerned that a particular State’s Appraisal Committee is not following its agenda, it can appoint another Committee without consultation with the State Government. The appointment of members of such committees cannot be the sole prerogative of the Ministry. A more impartial method of selection of members of various committees is required. Equally it must be ensured that these committees also have a more democratic social composition such as inclusion of women, of members of scheduled castes and scheduled tribes, who have the requisite qualifications.
6. Arising from these general issues raised above, it is clear that: (a) Draft EIA 2020 is an instrument to override earlier court decisions which have struck down the Central Government’s rules, norms, notifications and amendments so as to dilute EIA regulations; (b) it does not address the conflict of interest in the present setup of ACOs being paid consultants of project proponents; (c) it does not ensure that the Guidance Manual for mining of minerals should be part of EIA 2020 thereby weakening the regulations on opencast mining in particular; (d) there is need to ensure the autonomy of the various Appraisal and Technical Committees through changes in the method of selection, which form the architecture of environment regulation, ensure due participation of States, and also ensure a more democratic social composition; and (e) the constitutional and legal rights of adivasis are diluted and in some cases eliminated.
7. In addition there are four main specific areas of concern in the changes brought about in Draft EIA 2020:
(1) Re-categorisation of projects so as to exempt a wide range of projects from the scrutiny of Appraisal Committees and also from public consultation; (2) Dilution and in some cases elimination of the process of public consultation; (3) Post-facto legalization of violations by projects; (4) a number of exemptions/ benefits given to projects through various clauses.
7. (1) Clause 5: The re-categorisation and placing of a large number of polluting industries in Category B2 which do not require scrutiny by Appraisal Committees and in many cases also do not require prior environment clearance or public consultation, is against the EIA 2006 and the Environment Protection Act 1986, and constitutes a violation of minimum requirement of environment protection. The most blatant is the virtual elimination of regulations and scrutiny for the real estate and construction sector. It is shocking and unacceptable that only projects of 50,000-1,50,000 sq metres of built up area have to seek scrutiny by the Appraisal Committee. Construction projects of 20,000-50,000 sq.m need not be appraised and are exempt from public hearing, while those below 20,000 sq.m do not require prior EC/EP at all. The Ministry had moved amendments to EIA 2006 to similarly exempt from Appraisal all Projects of 50,000-1,50,000 sq.m which was struck down by the NGT. The Government went in appeal to the Supreme Court which upheld the NGT decision. Now, Draft EIA 2020 seeks to nullify the NGT and SC judgments. This is highly objectionable. Another shocking example is the re-categorisation of oil and gas exploration in B2. It would appear that just before the Baghjan 5 oilfield explosion in Assam, clearances were given for gas exploration within the Dibhru Saikhowa National Park. To avoid public consultation, such projects have been shifted to Category B2. This is a clear misuse of Government’s powers. Many other polluting industries also exempted. The various re-categorisations in Draft EIA 2020 are not in the interests of either the environment or local communities. We are opposed to this exercise which only serves the interests of the corporate sector.
Further, in Clause 5.7 there is also as an extremely vague definition of “strategic” projects, apart from defence and security projects, which will not require either appraisal or public consultation. In addition no information need be put in the public domain. Any industry such as power generation or building private ports may be termed strategic and be exempted from environmental regulation. This is highly arbitrary. Citizens are well aware of the requirements of the nation’s security. But why should such projects, not conform to environmental and public interest considerations? In fact, even defence and security related Projects should be appraised from environmental impact considerations, and relevant non-military environment-related information should be made public. Therefore this definition is opposed.
Clause 26 is also a re-categorisation of those projects for which prior environmental clearance is not required. While we fully support the exemptions given to artisans and other local communities to freely access natural resources like sand, mud, timber etc for own use, it is most unfortunate and objectionable that a list of other industries have also been included which have a known negative impact on the environment. These include solar thermal power projects, solar parks, coal and non coal mineral prospecting, minor irrigation projects with a command area upto 2000 hectares, Defence manufacturing units for explosives and several others. Except for the category of artisans like potters etc, there should be no exemptions for the rest of the units nor there re-categorisation. All procedures including EC/EP and public hearings should apply.
7 (2) Clause 14. Public Consultation. Draft EIA 2020 does grave injustice to the rights of people who will be adversely affected by projects. The consultation process is cursory and weak. We would like to categorically state that for every project, including defence projects, public consultation is required. We reject as anti- democratic and unjust all proposals in Draft EIA 2020 which exempt projects from public consultation such as in Clause 14.2 ( a to g). This objection is valid also for projects of expansion and modernization. The notification allows expansion upto 50 percent without any public consultation. Any expansion or modernization must be preceded by a public consultation. We also strongly object to Clause 14.8 in which permission is given to scrap “public hearing” if the “local situation” warrants it. This gives the project proponent and the authorities a loophole to avoid public hearings which are inconvenient to their interests. In 14.9 a condition is put to access the EIA Report through a “written request” to the regulatory authority who will make it available. Why should such conditions be imposed on access to a public document? The Draft EIA Report must not only be easily accessible without conditions but also available at the block level. It should also be available in the language of the State. The time given for responses should not be cut to 20 days but remain at a month or even extended to 60 days. Because of the work conditions during the agricultural seasons to have only one public hearing is unfair. There should be at least two public hearings with a gap of two weeks so that all affected will have an opportunity to attend. Once the final EIA Report is prepared it should be once again placed before a public hearing. This is essential to make the process transparent since very often the objections or suggestions made in public hearings find no reflection in the final EIA Report.
Where forest areas and Adivasi areas are affected, it is essential to have public consultations with the Gram Sabha. As far as projects in Fifth and Sixth Schedule areas are concerned, there are constitutional and legal protections including the Forest Rights Act and PESA. The 2013 Land Acquisition RR Act also has a separate chapter for Adivasi communities affected. In the notification there should be a separate procedure for consultation with Gram Sabhas. Also where adivasi communities are directly affected, it is a question of getting consent not just consultation.
7 (3) Clause 22 and 23: Dealing with Violation Cases: This entire section from Clause 22. 1-15 is extraordinary in its sweep of helping out offenders and those who have illegally looted natural resources. Moreover it does not recognize the right of local people or others in the know to report violations. This Clause gives license for violators who can be assured that the violations will be condoned by paying a fine and they can continue with their activity with no fear of their license being revoked. Even those who violate the condition of obtaining prior environment clearance before starting the project will be let off with a fine. It is nothing but postfacto legalization of all the illegal acts committed by the project promoters. Such post-facto environmental clearances have also been repeatedly struck down by NGT and Supreme Court as gross violations of the Environment Act.The Supreme Court in its ruling in April 2020 had said “ex post facto clearance is in derogation of fundamental principles of environmental jurisprudence.” If such condoning of criminal violations is to be done, what is the purpose of any environmental regulations? We oppose this section in its entirety and also Clause 23 which deals with condoning non- compliance.
7(4) There are a number of clauses in the notification which are beneficial to project promoters but highly damaging to people’s interests and the environment. For example:
Clause 3(16) The definition of Corporate Environmental Responsibility does not bind the amount to be paid and is being included as part of the project cost. In fact as the name itself suggests it is corporate responsibility to ensure enhancement of the environment over and above the changes to be made based on public consultations.
Clause 19.1 :This is a peculiar clause as the Heading is Construction or Installation Phase but includes mining leases and projects. In EIA 2006 PEC was for a maximum period of thirty years project life. However through this clause the project life period as well as the PEC is extended upto fifty years. This is objectionable and is nothing but a gift of natural resources to private mining companies.
Clause 20.5: This relates to an over generous approach to projects which do not submit annual compliance reports of conditions which have to be fulfilled as required by law. Three years are given as the limit before the prior EC or EP is revoked. The company can get away with paying a fine. The maximum time given should be six months, after which notice should be issued and steps for revocation should be taken. It should be understood that non-fulfillment of conditions is one of the most important reasons for damage to interests of local communities and environment. There will be a high cost to pay if such non compliance is legalized in this manner.
Clause 24.3 b: This gives permission for cluster lease holders to use the District Mineral Fund to augment funds for implementation of EIA or EMP. In the general mining of minor minerals in tribal areas, preference should be given to Tribals as far as grant of lease is concerned. However there is no mention of this in Draft EIA 2020. The District Mineral Fund is meant specifically to address the huge developmental gaps of local communities in areas where mineral mining is allowed. Therefore to divert this fund to fulfill the needs of those who hold leases in cluster areas is against the very concept of the formation of District Mineral Fund. We oppose this clause.
Clause 25: This concerns the appeal which can be made to the NGT against any prior EC or EP. Only thirty days is given for such an appeal. This should be extended to between two to three months.
The draft notification is in keeping with the pro-business agenda of the Central Government in the name of development. People’s interests or concerns of protection of the environment are not the concern of Draft EIA 2020. In fact it gives license for wrong-doing and violations.
This Draft Notification should be withdrawn. It may be redrafted taking the opinion of all stakeholders. This would be in the interests of the environment, the people and the country.
Member, Polit Bureau, CPI(M)