NEW DELHI — As India went into lockdown in March 2020, the environment ministry uploaded the draft of a controversial new environmental law to widespread outcry. The proposed new law, which some green activists billed “a compilation of violations”, included provisions to grant environmental clearances to a wide variety of projects without rigorous scrutiny, and to allow those violating green laws to get their projects regularised by simply paying a penalty.
Now documents obtained by HuffPost India establish how this new law, called the draft Environment Impact Assessment notification 2020, is the outcome of a two-year process in which two environment ministers — Dr. Harshvardhan and his successor Prakash Javadekar — first tasked a committee of experts with mandates designed to yield these controversial provisions, and then signed off on them.
The result is a draft law that completely exempts—for a wide range of projects and activities—the need to conduct public consultation and to assess their likely impacts on human health and the environment. Worse, a decision about the kind of projects that can be allowed these relaxations will no longer be done after careful scrutiny by state level bodies or after public consultation, but by an opaque, centralised regime run by bureaucrats and experts sitting in New Delhi.
If the draft EIA 2020 is passed into law in its current form, projects ranging from inland waterways, drug manufacturing, cement plants, and chemical plants, will need only cursory approval rather than the rigorous evaluation they require, according to an analysis by the Centre for Policy Research. “These projects are known to have large scale impacts on the environment and living conditions of communities around them,” CPR’s analysis notes.
The second set of changes mean projects that flouted environmental laws can continue with business as usual by paying a penalty. Previously, Indian courts could have ordered such projects to be permanently halted. In their analysis, CPR has criticised this provision.
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“The draft notification mentions that this has been done in the ‘interest of the environment’. However, the very rationale of granting post-facto clearances has been seen as against the basic principles of EIA and mockery of law,” CPR wrote.
The draft notification mentions that this has been done in the ‘interest of the environment’. However, the very rationale of granting post-facto clearances has been seen as against the basic principles of EIA and mockery of law.Centre for Policy Research
The ministry has sought to explain away this controversial provision as an example of the “polluter pays principle” where companies pay to mitigate the environmental damage they have caused., CPR’s analysis notes that “post facto approvals” of the sort envisioned by the new law “legitimise pollute and pay principle” where companies simply pay a penalty and keep polluting the environment.
Read together, the documents obtained by HuffPost India under the Right to Information Act reveal, in granular detail, the Narendra Modi government’s determination to completely redraft the Environmental Impact Assessment notification of 2006 to favour businesses over the health of Indian citizens and safety of the environment. EIA 2006 is a landmark law that lays out a rigorous process to evaluate, and in some cases mitigate, the impact of projects on the surrounding environment prior to granting clearance to proceed.
‘If the changes proposed in the draft EIA notification 2020 come to pass, projects which previously underwent greater scrutiny before being granted environmental clearance will now just have to prepare an Environment Management Plan and write an application and they will get ‘Environment Permission’, said Parul Gupta, an environmental lawyer who wrote a detailed critique of the draft for the Vindhyan Ecology and Natural History Foundation.
The new ‘Environmental Permission’ is a quicker and less rigorous process than the older process to get ‘Environment Clearance’, Gupta said.
HuffPost India has written to both Harshvardhan and Javadekar with questions about their reasons for approving the specific terms of reference and provisions in the draft notification. This report will be updated if they respond.
When EIA notification 2006 was brought into force nearly a decade and a half ago, the law categorised projects on the basis of their anticipated impact on human health and the environment. Category A projects were scrutinised in the union environment ministry, while Category B projects underwent scrutiny at the state level.
Type B projects were further categorised as B1 and B2. While B1 projects would attract more scrutiny—in the form of an environment impact assessment report and public consultation—for clearance to be granted, B2 projects would attract relatively less as they simply required to submit a self-declaration in the form of a pre feasibility report and an application. The law did not explicitly spell out what sorts of projects would fall in either bucket, but left it to state-level committees and provided for guidelines to help them make those decisions.
In December 2013, the environment ministry made a departure from this and added nine types of projects and activities to the B2 category. The B2 projects that got off the stringent requirements of prior clearance scrutiny also included fairly ecologically damaging economic activity such as small thermal power plants, cement plants, and chemical fertilizer plants.
According to environmental lawyer Parul Gupta, this was the first time that a set of industries and activities were explicitly categorised as B2 and added to the notification. These changes were made on the basis of a report by scientists and government officials led by Dr SR Wate, then the Director of the Nagpur-based National Environmental Engineering Research Institute, better known as NEERI.
The Wate committee continued to offer support and guidance to the environment ministry till mid 2017. Then in December 2017, environment minister Dr Harshvardhan was presented with a proposal to renew the Wate Committee’s mandate.
On 20 December 2017, Dr. Harshvardhan asked his officials three questions about the committee: When was the committee constituted/reconstituted last and what were the Terms Of Reference prescribed? How many meetings have happened after the last reconstitution of the committee? And what is the report received from the committee against the TOR prescribed?
Six months later, on 11 April 2018, Harshvardhan gave the Wate committee another six months and wrote, “Instead of Ad hoc agenda, there should be structured ToR for which a time bound report should be obtained.”
The terms of reference he approved a week later included “categorisation of category B projects into B1 and B2 under EIA notification 2006”, “Review of classification of projects/activities into A and B and General Conditions as contained in the EIA notification’ as well as “Compilation of Unified EIA Notification”.
A month later, on 18 May 2018, Harshvardhan gave the Wate committee a more ambitious mandate: “Review/re-engineering of EIA Notification, 2006.”
In other words, review the existing notification and replace it with a new one.
This was the first step to what, by May 2019, came to be referred to as the ‘Zero Draft’ of the Environment Impact Assessment notification—a document circulated amongst industry representatives and business-friendly consultants as well as state governments only for consultation. The zero draft also had a few more projects in the B2 category than the amended 2006 notification but the number was far less compared to the Draft EIA notification released in March 2020.
When Prakash Javadekar took over as environment minister in May 2019, he built on this process begun by his predecessor. The Modi government had just won a landslide victory in the recently concluded general elections, and corporate India was looking to see if Modi’s second tenure would bring the much-anticipated pro-business “reforms” that his first term had failed to deliver.
Officials in the environment ministry as well as experts in the Dr Wate committee sped up work to finalise the draft of the so-called “re-engineered” EIA Notification.
By February 2020, ministry officials were finalising a new draft of the notification which they presented personally to Javadekar as a powerpoint presentation. The presentation exhaustively detailed the controversial new changes and additions which appear to have not been there during Dr Harshvardhan’s tenure. The new provisions were based on certain ‘objectives’ or ‘principles’, as officials referred to them in the ministry’s internal documents, which did not exist in the Terms of Reference approved by Dr Harshvardhan.
According to a presentation made to Javadekar, and reviewed by HuffPost India, the “objectives” of the February 2020 included “exemptions for low potential projects & expanded B2 categories for small and low potential” as well as “non-compliance and violation (distinction and addressing the issues).” The presentation did not offer a definition for so-called “low potential” projects.
The low-compliance B2 category — which earlier included only 9 kinds of projects and activities — had now been increased to at least 35 including hydro-electric projects upto 25 MW, petroleum products, synthetic rubber, heliports, water aerodrome, among other things.
The provision for allowing projects which have violated or not complied with the environmental laws has also been controversial and was also added for the first time as a ‘principle’ and ‘objective’ in the February draft powerpoint presentation.
The draft went through further changes early next month and on March 11 2020, Javadekar signed his approval of the notification and it was uploaded on the environment ministry website soon after.
Javadekar’s draft brings about, as this analysis by the Vindhyan Ecology and Natural History Foundation submitted to the environment ministry points out, a “fundamental change” to the process detailed in the 2006 notification.
The 2020 draft EIA notification 2020 has not only provided for the transfer of many more projects to the B2 category in the schedule, it also has a provision for setting up a permanent Technical Expert Committee for categorisation or re-categorization of projects. This technical committee is proposed to take over the power of the state-level committees which, at present, have the mandate to screen and categorise projects based on the nature of the project and its location, among other factors.
The exemption provided to Category B2 projects is unjustified and arbitrary in light of the fact that some of the projects which are re-categorised as B2 in the draft are currently mentioned under Category A and B1 in the EIA Notification, 2006Advocate Parul Gupta
While the ministry officials claimed in their presentation before Javadekar that they are following scientific principles while deciding projects under the three categories, especially while adding more projects and activities to the B2 category, independent analysts are far from impressed by this exercise as it appears to allow many polluting projects and activities to escape critical scrutiny.
“The exemption provided to Category B2 projects is unjustified and arbitrary in light of the fact that some of the projects which are re-categorised as B2 in the draft are currently mentioned under Category A and B1 in the EIA Notification, 2006,” environmental lawyer Parul Gupta said.
She explained that there are two scenarios at play here. First, the kind of projects which underwent greater scrutiny before being granted environmental clearance because they were listed in a different category earlier will now be totally exempt from any rigorous scrutiny. For example, irrigation projects like dams, among others, with a culturable command area between 2,000 and 10,000 are currently under B1 category. So they have to undergo detailed screening which involves preparation of an environment impact assessment report and conduct of a public hearing with the project affected people before being granted clearance.
But the latest draft puts these projects under the B2 category as per which those planning to construct dams and other irrigation projects will just have to prepare an Environment Management Plan and write an application and they will get ‘Environment Permission’ which, as mentioned earlier in this piece, is a far quicker and less rigorous process than the one which involves grant of an ‘Environmental Clearance’.
Second, according to the environment lawyer Gupta, projects which never had to undergo the environment clearance process before will be made part of B2 category projects. This, Gupta said, is in response to certain court orders and only meant to please activists and local communities who were demanding that such projects should be screened for their environmental impact before being allowed to function.
Gupta gave the example of the Inland Waterways Projects pursued by the Narendra Modi government to illustrate this point. “Projects related to Inland waterways are mentioned under B2. This implies that there would be no rigorous assessment of the ecological and social impacts of such projects,” said Gupta.
As is evident on closer analysis, as far as the draft EIA Notification 2020 is concerned, the devil is in the details.