Weakening the enviro-clearance process

The recent simplification of environmental clearance process announced by the Ministry of Environment and Forests, has further diluted the country’s environmental regulation, one which is already considered toothless. The floor of the investment limit that necessities clearance has been raised from Rs.50 crores (1 cr = 10 millions) to Rs.100 crores for new projects. More projects will now stay out of the radar screen. The requirement of public hearing for small scale Industries (SSIs) located in industrial areas/estates and widening and strengthening of highways has been dispensed with. Environmental Impact Assessment reports are no longer required for pipeline projects. While the simplification seems aimed at facilitating industries, it may also endup pushing peoples’ participation and transparency to fringes of the whole process.

The Central government originally posted the Environmental Impact Assessment (EIA) notification as a draft notification in January 1993 to be circulated among the public for comments. This was done in accordance with the Environment (Protection) Rules which make it mandatory for the government to provide public notice of its intention to impose restrictions or prohibitions on industries, unless it is in public interest not to give prior notice. The draft notification contained three schedules. Schedule I listed projects that would need environmental clearance from the Centre, while Schedule II listed projects that would have to get clearance from the State subject to a threshold criteria in terms of area/production capacity/size/volume, above which clearance would have to be obtained from the Centre. Schedule III gave the composition of the Expert Committee referred to in the notification.

However, when the final notification was issued a year later, it differed significantly from the draft. First, the original draft brought within its scope a wide variety of projects through the first two schedules; but the final notification made Central environmental clearance applicable to just 29 categories of projects listed in Schedule I. Secondly, the authority of the States to grant clearance was completely done away with, with the result that many projects originally required to seek clearance from the State were completely removed from the purview of the notification. Petrochemical complexes, Bulk drugs and pharmaceuticals, Viscose Staple fiber and filament yarn, Mining projects were some of the categories removed from the list of State Clearance.

Thirdly, the draft notification used the standard of size/area/production capacity to determine the intensity of likely impact of the project based on which the environmental clearance would have to be sought from the Centre or the State. This is far more preferable to what the final notification has done i.e. using the criteria of investment cost to assume the intensity of likely impact and so decide whether a project should come under the purview of the EIA notification or not.

In May 1994, the first significant amendment inserted phrases such as “if deemed necessary” and “subject to public interest” in several places where the notification called for consultation with groups such as the Committee of Experts or affected populations/environmental groups. It made access to documents like the summary of reports, Environmental Management Plan (EMP), the recommendations and conditions subject to which environmental clearance is given and compliance reports “subject to public interest”. Access to such documents was unconditional prior to this amendment. In other words this amendment subtly subverted transparency in the whole clearance procedure.

There were some progressive changes as well. The April 1997 amendment making Public Hearings mandatory did bring back to the public access to the Executive Summary of the project report. But it was silent with regard to access to the EMP and the recommendations and conditions subject to which environmental clearance is given. The June 2002 amendment has provided concerned persons access to the EIA report, but the rules remain silent on the issue of access to the EMP.

Still, at present there is no provision within the notification by which the public can have access to the recommendations and conditions on which environmental clearance has been granted. One section of the EIA notification also deals with the conditions subject to which projects are exempted from its entire purview. This part has seen several additions. Item (b) includes a list of projects that are exempt from environmental clearance based on investment value. Highway projects were included in this exempt list in the May 1994 amendment. In December 2000 defence related road projects in border areas were also exempted from the purview of notification.

There has been some back and forth in policy making. In January 2000 another amendment removed projects like Petro-chemical complexes, Hydrocyanic acid and chlor-alkali industries from this list, thus effectively bringing them within the purview of the EIA notification regardless of the investment cost. However, two and a half years later, in June 2002 while one would have expected more stringent protection measures to be set in place with the increase in knowledge of the adverse impacts of these industries, the MoEF saw it fit to reinsert the Petro-chemical complexes and chlor-alkali industry into this list of exemptions. Thus it is now mandatory to conduct EIA studies for these projects only if the investment values are above the specified threshold limit. The June 2002 amendment raised this threshold limit for investment values to Rs 100 crores for new projects and Rs. 50 crores for all expansions/modernisations of projects. Also exempted in June 2002 were modernisation projects in irrigation sector if additional command area is less than 10,000 hectares or project cost is less than Rs. 100 crores.

The EIA notification has also witnessed a few illogical amendments. One of them concerns pipeline projects. According to the June 2002 amendment, pipeline projects no longer require an EIA report to be made out. However, the same amendment goes on to stipulate the requirement of an EMP, risk mitigation measures and the holding of a public hearing for pipeline projects. The EMP and the risk mitigation measures are the results of an environmental impact assessment. One wonders how the results can possibly be obtained without going through the process. Neither can one view pipeline projects as environmentally harmless. There are sufficient examples from around the world about the inherent dangers associated with pipelines.

Also, amendments have been made to this notification many times without issuing notice to the public asking for their opinions and comments stating that it was in ‘public interest not to do so’. But section 3 of the Environment Protection Act, 1986 (EPA) under which the EIA notification itself was issued authorises the Central Government to take measures for “protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution.” Naturally it follows that anything derived under section 3 of the EPA should be for the purpose of preserving the environment and controlling pollution. Thus when the Environment (Protection) Rules, 1986 (sub-rule 4 of rule 5) speaks of the public interest it is obviously in the context of preserving the environment and controlling pollution.

One fails to see how the majority of these amendments -- involving misplaced criteria for clearance exemption as well as continual raising of project investment caps that attract clearances -- serve the public interest in as much as conserving the environment and abating pollution.

The EIA process is one of the tools of decision making which provides a space for people’s participation. There are numerous reasons for involvement of the public in decision making processes. From a human rights perspective people have the right to be involved in decisions that affect them and their environment. Public participation seeks to ensure that members of the public have the opportunity to be notified, to express their opinions and ideally to influence the decisions regarding projects, programmes, policies and regulation that could affect them. Public participation is the privilege of citizens. More often than not, the local communities are the ones that are adversely affected by development activities. As direct casualties, the local inhabitants are more sensitive to the changes in environmental quality than anyone else. Therefore, the establishment of a public participation mechanism can improve the capacity for acquiring baseline information and underlying information for the team engaging in EIA studies.

But from the outset, the process detailed in the notification has lacked meaningful inclusion. At the stage when the affected communities are brought into the clearance procedure, the EIA report has been prepared and NOC applied for to the Pollution Control Board. The decision regarding the establishment of the project has already been made by the project proponents and by government authorities. The communities are not consulted during the assessment of alternatives, nor do the EIA consultants who are preparing the impact assessment report consult them at the time of data collection and report preparation. Even the pre and the post monitoring of compliance by the central and the state agencies are found to be very negligent. Once the project is approved there are no proper checks and balances for the project proponent.

Also, local developmental projects should have a net positive development for the local people which should be clearly stated in all project proposals. The EIA current process fails to address this and when these are included in project proposals, they mostly pertain to increased job opportunities.

In August 2001, a major weakening of the mandatory Public Hearing clause for environmental clearance happened. This amendment removed certain categories of projects from the purview of public hearings altogether. Some of these were widening and strengthening of highways; mining projects (major minerals) with lease area up to twenty five hectares, units located in Export Processing Zones, Special Economic Zones and modernisation of existing irrigation projects.

Furthermore, India's environmental public hearing process currently suffers from several drawbacks. Most projects are located in the resource rich tribal and rural areas. Due to the inherent social conditions in such areas, such as lack of literacy and the simple nature of the tribals, people are easily convinced and lured by the prospect of money and jobs. Little attention is paid to long term environmental and ecological implications in the light of short term economic gains. Thus significant objections to adverse impacts of projects are often not strongly put forward. Local environmental and social groups face a uphill task educating the people about the true nature and impacts of the project and getting them to forcefully raise objections and issues of concern.

It is true that with increasing awareness local communities are mobilising themselves and coming forward to express their views, but the fact remains that the public hearing is a mere consultation process. There is no legal compulsion on the administration to answer or provide evidence that the issues raised at a public hearing have been considered or the reasons why they have been dismissed.

At the global level, moves are to strengthen public participation in environmental decision making and the right to information as pillars of any developmental process. The Århus convention, adopted by European Union in 1998, legislated principles like access to environmental information, public participation in environmental decision-making and access to justice. This contrasts sharply with the Indian government's steps to curtail the public participation and withhold information on projects.