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Letting them off easy -Manju Menon & Kanchi Kohli
-The Hindu

In the newly proposed draft notification seeking to amend the Environment Impact Assessment, the Central government offers a way out to those who have violated environmental norms

The Ministry of Environment, Forest and Climate Change (MoEF) has issued a draft notification seeking to amend the Environment Impact Assessment (EIA) of 2006, allowing those who violate this law to continue work with an Environment Supplement Plan (ESP). This is the first step towards killing the EIA process in India. This newly proposed notification, along with a few others that the Ministry has drafted in the recent months, exhibit the MoEF’s thinking about the environment. Unlike its controversial decision last week to slaughter 200 foraging Nilgai, an act that was captured on camera, this notification bears no other name on it except that of the Ministry.

Importance of EIA

The EIA process has its origins in the 1992 Rio Earth Summit where over 170 countries committed to balancing environmental concerns and economic needs. The EIA was a tool to do this. In India, it has been in place since 1994 and is also called the environment clearance process. It is the law that mandates that detailed studies be carried out before implementing projects that carry social risks and could damage the environment. The studies are discussed at public hearings before being evaluated by a set of identified experts who then recommend a decision to the Ministry or State government on the project.

Though implemented in breach, the EIA process has been the only official forum to bring to view the fact that land and water are not simply resources to be allocated to thermal power plants, ports, and mines. As more and more projects have been proposed on forests, common lands, coastal areas, and freshwater lakes over the years, citizens have brought to bear on this clearance process, values of aesthetics, attachment, sustenance, risk and trusteeship. Unsurprisingly, this complicates decision-making on big-ticket projects, and has earned this law many epithets such as ‘stumbling block’, ‘bottleneck’ and ‘green hurdle’. Political parties, irrespective of their ideological moorings, have failed to recognise its value, and the government no longer has any legitimacy or finesse to mediate these nuanced debates. As a result, cases have piled up in courts, especially at the National Green Tribunal (NGT) that was set up to look into complaints regarding the environment clearance process.

The Bharatiya Janata Party government declared when it came to power that it would simplify laws. Within months it set up the TSR Subramanian and Shailesh Nayak Committees. Their mandates included, among others, the revision of the EIA and Coastal Regulation Zone (CRZ) laws that deal with environmental approvals to large projects. While the Ministry was recently charged with deliberately withholding public disclosure on the CRZ review report, the TSR Committee report showed that this government’s term will be remembered for culling of a different sort.

An undue favour

In the newly proposed draft notification, the Ministry offers a way out to those who have violated environmental norms. It seeks to provide an ESP for projects that have already initiated construction activity and expansion before going through an EIA process. As a result, it seeks to repeat the trick that keeps all the political parties going: “regularising” corporate illegalities. While the amended notification aims to protect and improve the quality of the environment for which “the process should be such that it deters non-compliance and the pecuniary benefit of non-compliance, and damage to environment is adequately compensated for…”, it merely ends up providing illegally operating project developers an ESP as a license to violate.

The ESP will draw up an assessment and cost of damages which the project developer is expected to pay up. This sounds less like an environmental fine — an important component among a slew of mechanisms to deter projects from violating environmental norms — and more like a crude form of ‘pay and use’ service. If violations are routinely struck off the Ministry’s register upon payment of money, where is the Ministry’s own stated goal of sustainable development? Those who have been working in the environment field will confirm that projects never pay up. Take the case of the fine of Rs.200 crore on the Adani SEZ in Gujarat, or Rs.5 crore for the Art of Living event on the Yamuna floodplains. Even if one were to be more optimistic about these collections, the government’s ability to use these resources to restore the environment, or provide justice to scores of affected people, is severely lacking. The example of crores of rupees collected to compensate for forest loss, and the Comptroller and Auditor General’s damning report on how these monies have been spent, will help change one’s mind.

Shooting off the court’s shoulder

The Ministry states that this notification has its basis in two judgments, one by the NGT and the other by the Jharkhand High Court. It leads one to believe that this draft notification is not a product of government conviction but legal diktat. The more than 200-page long judgments show that the Ministry has either been deliberately misled or is being dangerously disingenuous. In a long case involving a mining project, the State government and the Central government, the Jharkhand High Court judgment observed that any “alleged violation” should be investigated separately from the approval process. Neither does the judgment condone EIA violations in general nor does it prescribe a way out of these for erring companies. The NGT judgment actually quashed two office memoranda dated 12/12/2012 and 24/6/2013 of this Ministry in which it had tried to do precisely what it is doing through this notification. The NGT had observed that the office memoranda “provide benefits to the class of the project or activity owners who have started construction in violation of law, i.e. prior environment clearance.” Environmental issues in India have been politicised by democratic ideals for good. By killing the EIA process, it is the government that will lose its claim to sustainable development. The choice is theirs to make.

Manju Menon and Kanchi Kohli are with the Centre for Policy Research-Namati Environment Justice Programme.