According to Nobel-winning economist Joseph Stieglitz, “If growth is not sustainable because we are destroying the environment and using up scarce natural resources, our statistics (GDP) should warn us; it is clear that something is fundamentally wrong with the way we assess economic performance and social performance.” The battle with the current pandemic has shown us how vulnerable and unstable our systems of production, distribution and supply are in the face of Nature. The apex court had observed in Vellore Citizens Welfare Forum v Union of India (1996) that though companies are vital for the development of countries, the doctrine of ‘sustainable development’ must be adopted by them as a balancing concept.
The draft Environment Impact Assessment (EIA) notification 2020 to replace the EIA notification 2006 has been put in the public domain by the Ministry of Environment, Forest and Climate Change (MOEF&CC) since March 12. It has left both environmentalists as well as well-meaning economists worried if the government would throw caution completely to the wind to make good the GDP loss to the economy due to the prolonged lockdown and thus, make a mockery of its commitment to the global community made in the United Nations Climate Change Conference 2019 (COP 25) .
Bypassing NGT orders: The United Nations Environment Program (UNEP) defines EIA as a tool to identify the environmental, social and economic impacts of a project prior to decision-making. The National Green Tribunal (NGT) has also consistently ruled against post-facto approvals. The new 2020 notification, however, does away with this cardinal principle of prior environment clearance and permits post facto regularisation of environment violations by paying fines so long as the project is permissible in the area. This militates against the bedrock of India’s environment outlook that is based on the ‘precautionary principle’. Any shift from the ‘polluter-pays-principle’ to the ‘pollute-and-pay’ principle would wreak havoc. This window was hitherto not available in the 2006 notification.
A more balanced approach would be to incentivise pre-commissioning compliance and impose extremely stiff penalties for seeking regularisation after commissioning.Public scrutiny being compromised: In the new dispensation, public consultation, in vogue since 1997, is proposed to be exempted for a number of public projects in the field of irrigation, comprehensive area development, inland waterways, etc., or those involving ‘other strategic considerations’ as determined by the Centre. While these specified projects would require prior-environment clearance from the ministry, no information relating to such projects shall be placed in the public domain.
This is inexplicable considering that they are public infrastructure projects and meant for the very public from whom this information is sought to be hidden. This also flies in the face of international environmental law and agreements like the Stockholm Declaration 1972, the Rio Declaration 1992 or COP 25, which have held transparency to be the cornerstone of any climate discussion. The CAG Report of 2016 had observed that the concerns of the local people as emerging from public hearings were not being included in the final EIA reports and the project proponents did not fulfil their commitments in a time-bound manner. Instead of addressing these issues, the new draft provides further leeway to these perpetrators. Further, there may be apprehension that the government could keep any project out of any public scrutiny under the guise of ‘other strategic considerations’.
Other areas that raise concern: The new law also proposes to declare some areas as ‘economically sensitive areas’, on the recommendation of MOEF&CC, which would then be taken outside the ambit of the mandatory environmental and other clearances. But such a declaration would be sans any public or stakeholder consultation. This could pose a serious threat to delicate and highly unstable ecosystems like sacred groves, remnant forest patches and those that sustain critically endangered fauna like the great Indian bustard, Asiatic lion and one-horned rhinoceros. Our attempt to increase our ranking in the ‘ease of doing business’ index might irrevocably damage our environment in the long run.
Besides, the draft notification has not paid any heed to the 2016 CAG report that revealed serious inadequacies in monitoring by third-party agencies. Out of 216 projects, the terms of reference could be granted within the prescribed time limit of 60 days only in 14% of the projects; in others there were delays up to 365 days.
The draft increases the validity of the environment clearances to 50 years for mining projects as against 30 years in the current law and 15 years for river valley projects as against 10 years, thus increasing the risk of irreversible environmental, social and health consequences on account of the project remaining unnoticed for long.
Conclusion: At COP 25, India had exhibited its seriousness and steadfast approach to tackle climate change. This new draft would come as a major embarrassment to the country in the international stage. It is also pertinent to note that India ranked a very lowly 177 out of 180 countries in the last released Environment Performance Index (EPI) 2018, a biennial report prepared by Yale and Columbia Universities along with the World Economic Forum. India must draw inspiration from countries like Singapore and Denmark that consistently top the charts in both ease of doing business and environment performance indices.
Amar Patnaik
Rajya Sabha MP and former CAG official with a PhD in management
(amar_patnaik@yahoo.com)