The reduction of regulations to a mere formality has been catalysed by relaxing the norms for environmental impact assessments – begun by Veerappa Moily and continued by Prakash Javadekar.
Environment minister Prakash Javadekar is facing serious criticism by environmentalists for turning his ministry into a rubber-stamp authority and diluting critical environmental laws to facilitate quick industrial development. The reduction of regulations to a mere formality have been especially catalysed by relaxing the norms for environmental impact assessments (EIA). This was begun by Veerappa Moily, minister under the UPA government, and is being continued persistently by the present minister.
The EIA is critical in ensuring sustainable development, ideas about which go back to the United Nations Declaration on the Human Environment at the Stockholm Conference in 1972 – even if the formal coinage came later.
The EIA Notification, 2006, included the division of projects into categories A and B based on their potential impact and the constitution of a new state-level environmental appraisal authority to appraise projects under category B. The site clearance and terms of reference were required to be based on detailed information provided in Form 1 (appendix-I to the notification) through the process of ‘scoping’. With these provisions, the EIA Notification, 2006, became the linchpin of transparency and meaningful public participation in environmental decision-making.
Implementing the EIA notification
In the initial years, however, the EIA process remained a mere formality. Clearances granted by government authorities were not subject to public scrutiny, and project developers had nothing to fear from the process. It took at least five years for people to begin to learn how to use the EIA notification as an effective legal tool for environmental justice. The major turning point was the establishment of the National Green Tribunal (NGT) in 2010. The NGT has been instrumental in ensuring that the EIA process is strictly observed. A large number of environmental clearances have been challenged before the NGT and some ultimately quashed, with the tribunal raising concerns over the method adopted by EIA consultants, the concealment of critical information from EIA reports as well as mindless actions by the environment ministry itself.
The establishment of the NGT has been a sore point with industrial lobbies – as have other innovative policies (such as No-Go zones and third party EIAs) of former minister Jairam Ramesh, who spearheaded the establishment of the NGT. The ministry earned the label ‘roadblock ministry’ as it began the process of politicising environmental governance. Ramesh was replaced by Jayanthi Natarajan, who resigned after a year to make way for the then-petroleum minister Veerappa Moily to take additional charge of the ministry just a few months before the 2014 Lok Sabha elections. It was then that the weakening of environmental governance began in earnest, with Moily taking several arbitrary steps on behalf of his ministry to facilitate industrial growth. During his short tenure from December 2013 till April 2014, Moily is reported to have cleared 26 big projects worth Rs 204,552 crore.
Environmental mis-governance since 2014
This trend continued with the NDA government, which has made no bones about its objective to ensure that environmental laws serve industrial growth. Civil society as well as the NGT have kept strong vigil over the ministry’s actions. An attempt to curtail the power of the NGT attracted much disparagement from the media, and the minister had to refrain from taking steps towards it. However, the efforts of environmental activist groups have been hobbled by a government bent on portraying them as propellers of ‘anti-development‘ activities. No stone was left unturned to cripple the funding of several organisations involved in environmental protests like Greenpeace and INSAF.
However, the biggest challenge for the NDA government remained the flood of petitions filed by individuals at the NGT and growing criticism of projects cleared without any due diligence; in some cases, even without mandatory EIA studies, clearances or public hearings. Some cases in point include the Pollavaram Dam (Andhra Pradesh) and Kanhar Dam (Uttar Pradesh). To stem the tide of judicial challenge of its actions, the ministry resorted to the dilution of environmental law under the guise of an expert committee constituted to review the law’s working. The resultant T.S.R. Subramanian Committee was roundly criticised by environmentalists and also rejected by a Parliamentary Standing Committee, which termed it an ‘unacceptable dilution of the existing legal and policy architecture established to protect our environment.’
In light of fierce opposition to amendments to major environmental statutes as well as to the dilution of the NGT’s powers, Javadekar has resorted to death by notification instead. Some of these are set out in the table below. Critical amendments to the EIA notification have been made without even inviting public comments. Those that did invite comments were not given adequate publicity or made easily accessible on the ministry website. The import of most of these amendments has been to absolve the central government of its responsibility towards the environment by centralising powers and weakening the EIA notification in favour of industry.
One of the major amendments in this regard was the standardisation of the terms of reference (ToRs) on the basis of which EIA reports are conducted. This effectively did away with the ‘scoping’ component of the EIA process. Before this amendment, the expert appraisal committee (EAC) of the ministry was required to prescribe project-specific ToRs by conducting site visits when required. A project could be rejected at this stage itself. The April 2015 notification not only removed the clause on site visits but also allows the EIA process to begin as soon as the application for environmental clearance is registered on the ministry’s website, leaving no room for the EAC to filter unsuitable projects at this stage.
In one of the office memoranda published by the Ministry, instructions were given to the EAC to refrain from asking additional information, an unacceptable interference in what is intended to be an independent decision-making process by the EAC. Through another amendment, the ministry has even exempted 36 industries from any kind of environmental permission, including the consent to operate ordinarily required from Pollution Control Boards. This exemption has been granted by treating pollution as the only kind of damage that a project can have, thereby undermining other significant environmental effects like impact on natural ecosystem and resources.
Some problematic amendments
- Irrigation projects with cultural command area up to 2,000 hectares exempted from clearance*
- Distance from protected areas reduced to 5 km from 10 km for projects to be treated as category A projects (such projects require environmental clearance from the Centre)*
- Public hearing exempted for coal-mines seeking one-time expansion up to 16 MTPA*
- Did away the compulsory scrutiny of projects at the scoping stage. Project proponents are now allowed to start EIAs based on standard ToRs without waiting for grant of project-specific ToRs.*
- Validity of clearances extended to seven years from 5, including those project that were already cleared
- Decentralisation of clearance: several projects now treated as category B, to be decided by State level committees. Mining of mineral up to 5 ha to be appraised by District Level Committee.
- Several activities exempted from clearance, including dredging and de-silting activities in dams, canals etc., for maintenance purposes, construction activities involving educational institutes, industrial sheds, etc.
(*no public comments were invited before making these amendments)
This attitude of the ministry is also reflected in its stance apropos the NGT. In most cases where the NGT has suspended environmental and forest clearances, the ministry has staunchly defended project proponents rather than protecting the environmental cause. This clearly raises immense doubts on the seriousness of the ministry, which is tasked with the duty to protect the environment and wildlife.
The most recent draft notification which will have the effect of regularising violations under the EIA Notification is the inevitable culmination of the not so insidious attempts made by the ministry thus far to dilute the notification. This amendment will frustrate the very purpose of the EIA process, which is to determine whether or not a project can be permitted or not at a particular location.
The implementation of environmental law in India has always been weak, and previous ministries are by no means immune from charges of misgovernance. However, the determined manner in which the present ministry is going about dismantling legal protections, particularly the very foundation of the EIA process, makes its actions especially alarming.
It is abundantly clear that the priority of the ministry is no longer the protection of the environment, although it ought to be its overriding function. The ‘anti-environment’ stance of the minister has brought a huge crisis to environmental governance in the country, the impact of which will be felt in the coming years in the form of irreparable damage to ecology and an immense economic burden on the people of India.
Debadityo Sinha is Senior Research Fellow with the Public Health and Environmental Justice Initiative at the Vidhi Centre for Legal Policy.
Note: This article has been edited to clarify the factual position on the relationship between sustainable development and the Stockholm conference, and on the number of clearances quashed by NGTs across India. The statement in an earlier version of the article that it took India 22 years to bring the EIA notification was incorrect. The correct figure is two years.