A Quick Backstory, as we approach the deadline for comments on the draft

The economic development and environmen­tal sustenance are two aspects, which are intricately inter-linked. All developmental activities will have an impact on the environment. In few cases, the impact may be absorbed by nature over a long period of time. But, in others, the impact of the development on environment is very severe and almost irreversible.

The Environmental Impact Assessment is a tool of 20th century to strike a balance between development and environment. The phrase Environmental Impact Assessment (hereinafter referred to as EIA) owes its origin to Section 102(2) of the National Environmental Policy Act (NEPA) – 1969, USA. California was the first American state to introduce EIA. International attention was soon being directed to EIA as a result of several celebrated legal cases which clarified The United States' National Environmental Act (NEPA)’s significance.

The development of an Environmental Impact Assessment plan in India dates back to 1976-77, when the then Planning Commission, had asked the Department of Science and Technology to examine river-valley projects with an environmental perspective. However, this lacked a legislative support until 1994.

Being a signatory to the Stockholm Declaration, India enacted various laws to control pollution and destruction of Water (1974) and Air (1981). Nonetheless, only after the appalling Gas Tragedy in Bhopal, that claimed the lives of thousands and left many others permanently impaired, did the Indian Government come out with the comprehensive Environmental (Protection) Act, 1986.

At this point, a question arises in our minds as to whether, these enactments had any positive impact in terms of quality of wildlife, forest area and decline in pollution levels and deforestation. The answer lies in the steady increase of man-made and industrial disasters since then; Chasnala Mining Disaster in 1975, The Jaipur Oil Depot Fire in 2009, The Mayapuri Radiological Incident in 2010, The GAIL Pipeline Blast in 2014, The Ennore oil spill in 2017, Fire at Bandipur Tiger Reservein 2018, Bhilai Steel Plant Blast in 2018, The Tiware Dam breach 2019 and most recently The Vizag gas leak in May 2020.

The bitter truth is that, since the onset of the 21st century, at a time when India is believed to be fast approaching global standards of development, in terms of technology, we have utterly disregarded the environment which has led to perturbing depletion in all spheres.

In India, Environment Protection is not a product of modern times. Its origin and existence can be traced way back to the era of Puranas and Vedas. Hindu literature, in various instances, associates Mother Nature as the Supreme God and the entire human race as her children. Aspects of Nature, like fire, water and wind were associated with human emotions like rage and compassion. The five elements were considered the basis for sustenance and man was ordained to conserve them. Several religious texts insist on the necessity to protect the land and natural resources, as they were considered the gifts bestowed by the Supreme Being, for the pleasure of the human race.

The Vedic literature clearly envisages that there should be a striking balance between man, nature and the God. In the 20th century, this ideology was reiterated in a conference - Our Common Future - by the World Commission on Environment Development (Brundtland Report) and was coined as Sustainable Development in 1987.

This inter-generational concept, discusses the usage of natural resources by the present generation, without compromising the needs of the future generations. Sustainable development differs for each country depending upon their level of resources, population and satisfaction. In T.N. Godavarman v. Union of India, it was discussed that inter-generational equity is part of Article 21. The present generation owes a secure environment to its successive generations. However unlike other great revolutions in human history like the Green Revolution and the Industrial Revolution, the ‘Sustainable Revolution’, being the need of the hour, will have to take place rapidly, consciously and on many different levels and in many different spheres, simulta­neously.

The Hon’ble Supreme Court, in various scenarios, has discussed the inevitable necessity to protect our natural environment and preserve it, for the future. The Bench of Justices P.N.Bhagwati and Rangnath Mishra, in Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh, cleverly laid down that the permanent resources are not to be exhausted by one generation. It has to be used efficiently so as to not cause any serious threat to the natural environment.

In Vellore Citizens Welfare Forum v. Union of India and others the court recognized the concept of Sustainable Development and traces its development in the International Legal sphere, stating that the principle of sustainable development has been accepted as a part of customary International Law. It also held that the use and conservation of natural resources, environmental protection, polluters pay principle, precautionary principle, obligation to assist and cooperate, eradication of poverty and financial assistance to the developing countries are salient principles of sustainable development.

Coming back to the discussion on the EIA, a quick glance of the previous drafts of the document shall help the reader understand the evolution of the legislation. The primary aim of the EIA was to act as a mechanism to check and prevent any potential degradation to the environment by proposed developmental projects. Since the original draft in 1994, there have been numerous amendments and changes to this. Throughout this process, the major concern has been the steady increase in dilutions in process and standards. In this regard, the draft of 2020 has only caused further agony.

When Governments, businesses and others make decisions about land and natural resources, they inevitably impact the health, livelihoods and quality-of-life of local communities. So it stands to reason that the public should have a right to be involved in environmental decision-making-specifically, to know what is at stake, to participate in the decision itself, and to have the ability to challenge decisions that disregard human rights or harm ecosystems. Numerous developed nations have evolved what is called the Environmental Democracy Index (EDI) to promote transparency, accountability and citizen engagement in environmental decision-making.

A public hearing is a form of participatory justice giving a voice to the voiceless, particularly to those who have no immediate access to Courts, a place and occasion to them to express their views with regard to a project. was reiterated by the Bench in the Samrath Trust case. The concept of public participation promotes two things - Provides a platform for the authorities to meet and address the issues faced by the public, thereby promoting a democratic approach and secondly, increases the quality of decision making.

The complete disregard to the above notion, is the primary allegation against the proposed Environment Impact Assessment (EIA) Notification 2020. The draft completely overlooks the sine qua non of hearing and inculcating suggestions from the public in essential projects and matters concerning the environment.

A good example of the possible consequences of avoiding public hearing is the Sterlite Copper unit protests in Toothukudi in 2018, which resulted in the death of 11 innocent natives of the area.

The State has a bounden obligation to protect, promote and safeguard the environment as provided under Article 48 and 48A of the Indian Constitution. India is one among the few countries in the world with rich diversity and varied habitats. However, a mere perusal of the draft of 2020 explains the neglect of the authorities to the prevailing conditions of biodiversity in the country, thus completely disregarding the above-mentioned articles of our Constitution.

Nevertheless, we the citizens of this glorious nation, are bound by a fundamental duty to protect and improve the environment around us as provided under Article 51A(g) in Part IV-A of the Constitution. In order to perform this duty to the utmost satisfaction of all, every citizen requires an appropriate amount of information to be able to fulfil his duty, which has been refused in the draft of 2020 issued by the Ministry. It is a well-known fact that citizens have an implied right to know as guaranteed under Article 19(1)(a) of the Constitution. As this basic right stands curtailed, the citizens feel crippled when it comes to fulfilling their environmental duty.

The concept of ex post-facto approvals have adversely affected a lot of environmental laws and jurisprudence in India. It defects the objective of important legislations like Environment (Protection) Act, Forest Conservation Act, Mines and Minerals (Development and Regulation) Act and others.

Ex-post facto means after the act. In this case, the act refers to projects begun or completed without environmental appraisal or clearance. Thus this creates a major loophole and allows industries to proceed without obtaining necessary approvals. With the unfortunate presence of corrupt practices prevailing in the country, a project, though detrimental to the environment, after the enactment of the said draft, may be able to get the necessary approvals with petty fines.

In a recent Supreme Court Judgment, decided on 1st April 2020, Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors, the court clearly observed that allowing such a practice would be detrimental to the environment. While the order was in a case related to three industrial units operating in Gujarat without valid environment clearances, it effectively criticizes the Government’s recent proposal of giving industrial projects an opportunity to get post-facto clearances after project initiation.

Indeed these projects may promote employment opportunities and may help in modernisation and development of the area, as reiterated in M.C.Mehta v. Union of India[1], the Supreme Court held that life, public health and ecology have supremacy over unemployment and loss of revenue.

As per sub-clause (7) of Clause 5 of the draft, projects may be classified as ‘Strategic’ and thus be kept away from public purview. However, the word strategic is nowhere defined in the draft. This creates a loophole and allows projects that might not be a part of defence and security to escape scrutiny, by misusing the provision, hence creating a vacuum.

The EIA proposes to increase the validity period of Environmental Clearance, substantially. While comparing the EIA 2006, with the current draft, we may notice this humongous difference. This difference might pave the way for those with malafide intent to manipulate the authorities for several years. Thus violations are unobserved for a long time. This might cause irreversible damage to the environment. Furthermore, the period for submitting the compliance reports has been made a yearly exercise, rather than the half yearly exercise, as prescribed in the previous draft.

Yet another common allegation is that the draft of 2020, introduces penalties for non-submission of self-compliance reports as Rs.500, Rs.1000 and Rs.2,500 per day for projects under category B2, B1 and A respectively. Although the initiative is much appreciated, it is felt that such negligible amounts shall render the exercise futile.

A massive explosion in Beirut, Lebanon, has shook the whole world. The experts have opined that the root cause of the explosion was the abnormal storage of around 2750 metric tonnes of Ammonium Nitrate which is widely used in chemical fertilisers, mining and other industries. The blast affected people living within 10km radius of the warehouse. Especially, being situated in a prime residential area, the explosion has taken a toll on millions of lives. Likewise, in Texas, USA, a chemical fertiliser industry that uses Ammonium Nitrate, exploded in 2013 and caused severe damage to life and property.

By a careful perusal, we may understand that various industries that use the said chemical, have been kept under the B2 category, thus restricting public purview. Something as harmful as the above and having a deleterious effect on the livelihood of those living in the surrounding areas, should indispensably require to be consulted. Many such solemn provisions have been completely excluded from the reach of public. Thereby, it is felt that, if the draft is continued in its present form, the life and property of citizens shall be vulnerable.

SalusPopuli Lex SupremaEsto

As understood from the above maxim, the health, welfare and felicity of the people, shall be the supreme concern of the state. It is pertinent to note that the state, while framing policies for its people, should necessarily keep in mind, that the well-being of its citizens shall not be jeopardized in any way. As observed above, certain provisions under the said draft are manifestly erroneous, unconstitutional, vague and unjust and thus the draft deserves to be revised.

Having reached the deadline for public comments on the draft, we wish and pray that the authorities go back to the drawing board and this time, do just by the people and the environment.

End-Notes:

1. AIR 1987 965

Written By:

1. Asmitha Natarajan
2. M. Shuaib Ahmed
3. S. EnockAnand