EIA: The foundations of failure

In the third century BCE, the Buddhist emperor Ashoka laid down what might well be the oldest rules for conducting debates and disputations, with the opposing sides being duly honoured in every way on all occasions. Writing of this in his book, The Argumentative Indian, Amartya Sen refers to this long history of this tradition, and notes that such "discussions and arguments" are critically important for public reasoning even today, and for democracy too. But this tradition has not survived the passage of time; despite the historical and cultural evidence of public participation and collective decision making, its implementation in contemporary India has been a contentious issue. An especially troubling loss of this tradition is in the area of environmental decision making, where opposing views on 'development' and 'conservation' have led to bitterly polarised camps of thought, rather than a resolution of the differences through the argumentative tradition.

Why? To answer this question, it is necessary to explore the context and circumstances of environmental decision making in modern India, and the origins of ideas about the legal and moral rights of people to participate in decisions that affect their ways of life, or even their very existence.

Regulation, after development

The Indian Constitution is among the few in the world that contain specific provisions for environmental protection [1]. The conservation, protection and improvement of the environemnt were explicitly included in it by Constitutional amendments in 1976. Articles 48A and 51A (g) [2] highlight the national consensus on the importance attached to environmental issues, and provide the foundation for environmental protection. [3] Before 1980, the environment and forests were the concern of the Department of Science and Technology and the Ministry of Agriculture, respectively, but from 1980, issues related to the environment and forests were attended by the Department of the Environment, established in 1980 within the Ministry of Agriculture; this was later changed to a full-fledged Ministry of Environment and Forests (MoEF) in 1985.

In 1980, the Environmental Appraisal Committee provided specific guidelines for the clearance of large projects from the environmental angle, which became an administrative requirement [4]. The guidelines were obligatory to such an extent that the Planning Commission and the Central Investment Board sought proof of environmental clearances before giving financial sanctions to such projects. Five years later, the Department of Environment issued the Guidelines for Environmental Assessment of River Valley Projects, [5] which specified various studies that were necessary as part of an Environmental Impact Assessment (EIA). These guidelines, however, only incorporated the technical aspects of the project such as submergence zones and seismicity, but did not include provisions to give project information to the public, or mandate people's involvement in the decision-making itself. Furthermore, these guidelines were not legally binding.

The next step in environmental management in India was the EIA Notification Act of 1994. To understand the rationale behind this 1994 notification, one might analyze a 1988 conference titled the International Conference on Environmental Impact Analysis for the Developing Countries held in New Delhi. With the support and cooperation of Government of India, this conference was organized by Pollution Control Research Institute, Haridwar, along with Bharat Heavy Electricals Limited. United Nations Environment Programme, United National Industrial Development Organisation, and a number of international organizations as well [6]. Giving the keynote address, Z R Ansari, then Minister of Environment and Forests, emphasized the inclusion of social costs while assessing the impact of new industries.

An early warning of the trouble to come was apparent at the conference itself. Interestingly, although considerable debate centred on the role of public participation in the EIA process, there was no representation at the conference from public interest groups themselves! This would gradually become the norm, as the public interest was simply understood to be represented through the roles of various others - especially funding agences and the government - and not directly. One recommendation of the conference, for example, was that "clear and unambiguous guidelines should be established for EIA, which should be acceptable to relevant Ministries, UN agencies, Asian and other Developments Banks and bilateral aid organizations."

An important corollary to - or possibly the reason for - this understanding of the public interest was that 'development' was understood as the primary goal. The funding organisations and the government were presumed to hold the best judgement of the people's interests; thus 'regulation' was required only to strengthen the outcomes they sought, and not to oppose them. The 1994 notification, and subsequent implementation of the EIA followed this cautious approach of protecting the interests of funding organizations to promote development, and its constant companion - industrialization.

Tokenism, rather than substance

The reference points for public participation was flawed too. UNEP, UNIDO and UNDP were asked to sponsor studies to review the extent of public participation and its effectiveness in conducting EIA studies in various developing countries, so that the comparative studies might assist in determining the best alternatives to ensure public involvement in EIA in India. [7] But why conduct these studies only in developing nations? Developing countries in Asia were not the best examples of EIA and its implementation. Though Thailand and Philippines were among the few countries that implemented EIA as early as 1977, not a single project was ever denied clearance – despite several thousands of projects being subjected to EIA. [8] Instead, it might have been better to study the participatory methods used in the developed nations, in particular the United States, where the EIA was first conceived and implemented.

In America, the National Environmental Policy Act (NEPA) was passed in 1970, mainly due to the public pressure on the government to accept accountability for its development activities. The legislation called for the preparation of public statements on environmentally significant consequences of all federal actions, and allowed for public input into project formulations and informed decision-making. Earth Day of 1970, which brought twenty-million Americans together in a celebration of and education about quality-of-life issues and concern for the environment, was a clear indication of the public's interest in such issues. [9] In 1971, a full quarter of the U.S. public thought that protecting the environment was important. [10]

At the global level, the role for EIA was formally recognised at the Earth Summit held at Rio in 1992. Principle 17 of the Rio Declaration states: EIA, as a National instrument, shall be undertaken for the proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent National Authority.

It is important to note that the demand for environmental assessment of industries in the United States came from the public and through legislative action, whereas in India it was taken up as an executive order - in 1994 through the MoEF notification - without any legislation being passed, or the Parliament being involved. The notification introduced in January that year underwent several changes by May; these diluted public participation in EIAs to mere tokenism. The changes were also introduced furtively, without prior publication. Hence, there was no time provided for the public, or even informed environmentalists themselves, to comment on the changes. In addition, an explanatory note submitted simultaneously by the MoEF restricted public access to impact assessments to Executive Summaries of the EIA documents, rather than the entire documents themselves, and it narrowed the access of information to 'bonafide residents' located in and around the project sites. This dramatically reduced the information about new industrial developments that would be made available to the public.

Further, while initially it was proposed that Comprehensive EIA reports based on one whole year's data would be required, the MoEF diluted this requirement so that data from a single season, compiled in a Rapid EIA, would be sufficient for seeking environmental clearances [11]. Given that there were very few individuals and NGOs with proper knowledge of the EIA process at that time, and that the government had no tradition of, or felt the need for including public participation in the developmental decision making, there was no effective external political impetus to force the MoEF to be more inclusive and transparent. Instead, the notification was passed with many flaws, despite these errors being identified in the 1988 government-supported conference. For example, the conference had pointed out that EIA reports were too mechanistic and bulky without proper data analysis, that the reliability of the data itself was questionable, that compliance monitoring was seldom carried out, and there there was often no proper public consultation. None of these issues, however, were addressed by the 1994 EIA notification.

Bad starts, predictably bad outcomes

The prioritisation of development and the dilution of regulation have had predictable consequences. Today, twelve years after the EIA notification, NGOs and communities continue to struggle with fraudulent EIA reports, staged public hearings, and unscrupulous environmental clearances. In the process, the positions taken by various stakeholders in this process have become intense and extremely polarised, with the government and industries on one side, and the NGOs and local communities on the other. As public opposition to specific projects has become increasingly intense - leading to such incidents as police firing on demonstrators - it is growing more evident that the questions that were passed by too quickly in the beginning must be asked and answered again.