Towering Inferno

The mandatory process for inviting objections and recommendations to the proposed changes in the EIA framework ended on August 11, the deadline set by the Delhi High Court. The court had set the new deadline after dismissing protestations from the Union ministry of environment, forests and climate change, which wanted the consultation process closed on June 30, just over three months after the draft to replace the existing EIA 2006 was placed in public domain on March 12.

If the massive public response—and outrage—against the draft EIA 2020 has created a record of sorts, the preceding months of the consultation process were no less ordinary. The draft evoked a sharp political response from the Congress, with Sonia Gandhi writing a lengthy op-ed in a national daily detailing the pitfalls of the proposed framework. Congress leader and former environment minister Jairam Ramesh too found an unlikely pen pal in incumbent environment minister Prakash Javadekar as the two exchanged letters countering each other’s contentions on the notification and posting them promptly on Twitter for all to see.

There was also the obtuse episode of the Delhi Police issuing a notice to NGO Fridays for Future India, invoking stringent charges under the draconian Unlawful Activities (Prevention) Act, following a complaint by Javadekar about the organisation flooding his email with comments on EIA 2020. The police later withdrew the notice, claiming that the slapping of terror charges was an “ina­dvertent error”. On Javadekar’s complaint over the clogging of his inbox, websites of three environment awareness groups—Fridays for Future India, Let India Breathe and There Is No Earth B—were also blocked. Moreover, four high courts were approached by petitioners raising various objections to the consultation process and the government’s refusal to provide translation of the notification in languages besides Hindi and English. Evidently, there is something about EIA 2020 that has riled the public unlike earlier environment-linked policy framework.

It was in the backdrop of the Bhopal gas tragedy of December 1984 that India got its first comprehensive legislation on the environment—the Environment (Protection) Act, 1986. Though many countries had, by then, already begun expanding their policy frameworks to include regulations for projects that have a direct impact on the environment, it was not until 1994 that India noti­fied its first EIA norms. Simply put, the EIA is an essential regulatory framework that identifies the impact a proposed project would have on the environment at large and the immediate ecology of the site in particular. It is meant to be an impartial assessment of the benefits of a proposed project as also its negative consequences, based on scientific surveys and consultations.

Green activists believe that the EIA is implemented in a shoddy manner and, at best, provides governments and ind­ustry legal protection to exploit natural resources. Industry leaders and sections within successive governments have alleged that the EIA prevents speedy clearance of projects, and promotes rent-seeking by corrupt politicians and bureaucrats who sit on clearances.

The EIA 1994 was replaced with a new, more expansive notification in 2006. In March this year, citing the need for a new framework that assimilates various court orders, internationally accepted practices and innovations of the past 14 years, while also addressing emerging concerns, the Centre notified the draft EIA 2020. The storm over the modified EIA goes beyond the traditional debate over the need and efficacy of the regulatory framework. Though insisting that successive governments have been lax in upholding both the EPA 1986 and the EIA regulations, environmental lawyer and founder of Legal Initiative for Forest and Environment (LIFE), Ritwick Dutta, says the “sole objective of EIA 2020 is to prevent an environment impact assessment and instead wantonly grant permissions for projects that will be ecologically destructive”.

Considering that a natural casualty of a pro-industry EIA would be India’s forest cover, it is difficult to reconcile the rationale behind the modifications with India’s Intended Nationally Determined Contribution (INDC) under the 2015 Paris Agreement of creating an additional carbon sink of 2.5 to 3 billion tonnes of CO2 equivalent by 2030.

Most of the criticism of EIA 2020 stems from three aspects of the draft notification. First, the proposed modifications allow ex post facto environmental approvals for operational projects that haven’t adhered to currently applicable regulations. Second, a large number of activities—specified under category B2 in the notification—have been entirely exempted from EIA. These activities include oil, gas and shale exploration, certain categories of hydroelectric, solar and irrigation projects, coal and mineral prospecting, small and medium cement plants, some categories of micro, small and medium enterprises, all inland waterway projects, expansion or widening of highways, aerial ropeways in ecologically sensitive areas, and specified building construction and area development projects (including the Centre’s controversial Central Vista project).

Third, the modified draft notification prevents the public from reporting violations and non-compliance by project proponents, placing the onus of doing so on the violator, the competent government authority or the regulatory authority. Even in the event of violations being established, there is a provision for granting approvals with conditions, including remediation of ecological damage. Besides, the new notification also curtails the current requirement of semi-annual compliance reports by project proponents to once a year.

These relaxations are being brought in even though the current, seemingly more stringent, EIA regime is seen by several experts and conservationists as biased in favour of the industry. In two recent disasters—the gas leak at LG Polymers in Vishakhapatnam and the Baghjan gas well blowout in Assam—it was found that violations of the EIA had gone unchecked.

While Javadekar did not respond to Outlook’s request for comments, he has publicly claimed that his ministry is simply codifying various changes made to the EIA since 2006 by the courts, and by the previous UPA regime through office memorandums. On ex post facto approvals too, Javadekar has maintained that such a claim is a “misrepresentation of facts”, and that “there will only be prospective environmental clearance and heavy penalty for the period of violation”. The minister points out that the Supreme Court had directed that the government “cannot close down industry, but may impose penalties/fine for violations”. Earlier this year, however, the apex court had ruled: “Environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.”

Javadekar’s claims are contested by Ramesh, during whose stint as environment minister of the then Congress-led government was often criticised for making environmental clearances nearly impossible. The modified EIA, says Ramesh, will “routinely legitimise illegality, and promote land grab, not development”. Now the chairman of the parliamentary standing committee on science & technology, environment, forests and climate change, Ramesh says the need is for the government to “punish the violators”.

The political slugfest over the EIA aside, there are harsh ground realities that the proposed modifications ignore. In December, Javadekar had released the biennial State of Forest Report, 2019. The report claimed that India’s total forest cover stood at 21.67 per cent of the total geographical area—a marginal improvement over the 21.54 per cent recorded in 2017, though still far from the stated target of 33 per cent. A closer look, however, reveals a disturbing fact. In terms of canopy density, the report classifies forests into three categories: Very Dense Forests (VDF), Moderately Dense Forests (MDF) and Open Forests (OF). Though India’s total forest cover is 712,249 sq km, most of it (304,499 sq km) is OF—mostly the result of compensatory afforestation and urban forests planted to offset canopy destruction due to projects in MDF or VDF areas.

The worst impact of EIA 2020, if implemented in its current form, is expected to be on the Northeast—a region the NDA government promised to promote and protect with regard to development and people’s rights. While boasting of an increase in India’s total forest cover, the State of Forest Report conceded that the green cover in the northeast had been steadily declining. The region has lost around 25,000 sq km of forests over the past decade.

“The total forest cover of the Northeast, as per the government’s data, was 170,541 sq km in 2019,” says Udayan Borthakur, an activist associated with Aaranyak, a Guwahati-based social organisation that works on biodiversity conservation in the Northeast. “The Northeast comprises about eight per cent of India’s total geographical area, but accounts for 65.05 per cent of the forest cover. If implemented in its current form, the EIA 2020 will be disastrous for the Northeast, not just environmentally, but also in terms of social harmony.”

Earlier this year, as part of his mega Atmanirbhar Bharat Abhiyan, PM Narendra Modi declared 41 coal blocks—almost all located within densely forested, mining ‘no-go’ areas—open for private commercial mining with no end-use restriction on the quarried mineral. The decision had triggered massive protests by activists and adivasis in danger of being displaced from their lands in the forests. The government decided to withdraw some of these blocks from the list, but the threat of exploitation of other forests remains.

Be it the EIA 2020 or the opening up of commercial coal mining in ‘no-go’ areas, these decisions of the Centre appear to be a natural progression of the systematic erosion of regulatory frameworks previously witnessed in its decisions to dilute the Forests Rights Act, 2006, and EPA 1986, and weaken the National Green Tribunal. These regulatory frameworks and institutions were supposed to act as a check on reckless ecological exploitation and provide redressal to aggrieved forest dwellers. With 18 lakh objections and recommendations to EIA 2020—many of them no doubt similar—now before the government, it is evident that the threat of environmental degradation and climate change has finally broken free from the stranglehold of jargon and technicalities to strike an emotional chord with the people. Will the Centre respond with sincerity or, as previously witnessed on matters of its legislative agenda like the abrogation of Article 370 or CAA, brazen it out?