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DEVELOPMENT: AT COST OF ENVIRONMENT OR LIFE?




Man being the most sophisticated being in the world has developed a lot technologically not realizing the traces of his origin is lost in midst of his desires for larger achievements. Indeed he had made a mark scientifically for his self development but at a cost of environment. The significant issues the world currently facing is due to rise in atrocities against the nature. Climate change, deforestation, mining, nuclear accidents, pesticides, pollution, waste and over population are the main concerns that are growing by the time, even though precautionary measure are being taken. The world today is witnessing the massive climate change especially the atmosphere of California[1] alongside with the major industrial destructions that took place in India[2] and Lebanon[3] including the catastrophe that surrounded the world in form of Covid-19. India is currently facing the sudden downfall in its economy due to the unanticipated Covid-19 and impromptu lockdown; experts[4] had even cited out that the down fall in Indian economy is not only due the Covid-19 as economy was facing crisis ever since demonetization and Covid-19 had just twisted the knife.


India had been part of various international environmental convents mainly Stockholm declaration and Rio declaration that promulgated environmental principles of sustainable development, precautionary principle and environment impact assessment. Therefore its obligation towards international treaties cannot be foregone under any circumstances. The newly introduced draft of Environmental Assessment Bill 2020(hereinafter to be referred as EAB 2020) aiming to replace the existing Environment Impact Assessment Act 2006(hereinafter to be referred as EIA 2006) is more economic oriented deprecating the notion of sustainable development principle and the environment impact assessment process that India has adopted over the years through various legislations. This Article is to explore the provision of the new draft that defeats the very essence of environmental law in India in view to support the economic growth, including few plausible recommendation that are necessary to adopt to make a draft legislation more equitable for both economy and environment.


The evolution of the environmental law in India began with enforcement of environment legislation that enables the government to pass statutory regulations[5] to promote sustainable development. Despite the existence of such laws various industrial accidents caused havoc in the nation, leading to multiplicity of litigation before the Courts. The Courts while ruling on principle of equity and justice expanded the scope of Article 32[6] and various orders were passed from time being with a view to secure the implementation of laws and to protect fundamental rights of citizens as the problem is not the absence of law, but of its implementation.[7] The guidelines laid down by Courts through its various judgments were bought under nutshell through notification in year 2006[8] with a motive to impose certain restrictions and prohibitions on new projects or activities, or on the expansion or modernization of existing projects or activities based on their potential environmental impacts and such projects cannot be undertaken in any part of India unless prior environmental clearance is issued by the State or Union Territory level Environment Impact Assessment Authority (SEIAA), constituted by the Central Government in consultation with the State Government’s or the Union territory Administration’s[9].


The projects that need prior clearance from the Central Government, Ministry of environment and forest as mentioned under Schedule includes mining minerals; offshore and onshore oiling; River valley and etc.,[10] falls under category A projects and those projects that need prior clearance from SEIAA constituted at State level falls under Category ‘B’, this categorization of projects is based on the potential impact that the project causes on health, nature and manmade resources. Therefore for obtaining Environment clearance the scheduled projects should undergo the process setup under the EIA 2006 including that to be scrutinized by Expert Appraisal Committee setup for recommendation to MOEF at Central and SEIAA at State level and both the bodies shall meet at least once in a month to screen, scope and appraise projects or activities mentioned in category A and B.

The environmental clearance process for new projects will comprise of a maximum of four stages and these four stages in sequential order are:-


• Stage (1) Screening (Only for Category ‘B’ projects and activities)


• Stage (2) Scoping


• Stage (3) Public Consultation


• Stage (4) Appraisal


The process laid under EIA 2006 includes the internationally recognized tool of Regulatory Impact Assessment[11] and Active Public Participation through public consultation[12] that were adopted under Rio Declaration but the EAB 2020 openly set down the provision to scrap the adopted principles under the existing law. It is important to understand that the four tier procedure established under EIA 2006 though being stringent had failed in its implementation and the classic illustration for the same that exist as on today is the incident that took place in Vishakhapatnam, where the factory was running for two long decades without Environment Clearance and allowance to develop the residential area near to that of industrial area clearly shows the failure of SIEAA and State government, despite the guideline laid down by Supreme Court that “no industries should be near densely populated area or residential area”[13]and in such circumspection the draft bill had relaxed mandatory prior environmental clearance by allowing the post-facto clearance, now just imagine a situation where an industry is involved in act of damaging the environment and provision of draft attempts to legalize the project that had already caused environment damage.


The EAB 2020 categorizes the projects under 3 categories namely A, B1 and B2 unlike the existing Act where the projects are categorized into 2 categories and both the categories of projects undergoes the same four tier project to get environment clearance but EAB 2020 provides the categories of project A and B1 to get clearance on six tier process and that of B2 three tier and two tier leading to the sub categorizing of project. As shown below;


Categories A and B1 Category B2

Placed before appraisal committee Does not required to be placed before appraisal committee[14]

Stage (1): Scoping;


Preparation of EMP Report; Preparation of EMP Report;


Stage (2): Preparation of Draft EIA Report;


Appraisal; Verification of completeness of the application by the Regulatory

Authority; and Grant or Rejection

of Prior Environment Permission.


Stage (3): Public Consultation;


Grant or Rejection of Prior Environment

Clearance


Stage (4): Preparation of Final EIA;



Stage (5): Appraisal; and



Stage (6): Grant or Rejection of Prior Environment Clearance





The most sophisticated part of this Bill is allowance of clearance to the project falling under the B2 category without appraisal and the reason stated is the assumption that the B2 category projects are designed for public welfare and it is not necessary for such project to undergo appraisal process. The projects that fall under B2 category are the mining projects of 5 hectare land and its dumping, River valley projects of 25 megawatts hydroelectric power generation, exploration of onshore and offshore oil & gas refineries,[15]in short all these projects will not go process of both appraisal and public consultation and this is attempt to emasculate the Hon’ble Apex Court judgment in case of Orissa Mining Corporation Ltd[16], where the appraisal committee constituted by central government refused to grant prior clearance to the mining industry and the same was upheld by Court stating that the rights of dwellers is to be protected as large members of tribal people were depended on forest land for their livelihood.


The principle of law laid down in case of Mazdoor Kisan Shakti Sangathan[17]propounded the importance of public participation and its consultation to understand whether the project is for public welfare or not. And also many environmental activist cited out the need to increase the consultation period under EIA 2006 i.e., 30 days as it is hardly a time to understand whether the project is beneficiary or not; because making consumer aware and their analogy to understand things take lot of time but this draft bill instead of increasing the time period decreases it to 20 days and whole of the process of project assessment of A and B1 category is to be done in 40 days unlike 60 days under the EIA 2006 and this clearly shows an attempts to deprecate the public consultation and their participation.

The Hon’ble Apex Court in case of Consumer Education and research forum v. Union of India[18]held that Government should take measures to educate masses and complete information of projects that are taken up should be provided[19] but EAB 2020 attempts to limit the information that is necessary to be released in public domain to quiver public voice, as public over years, especially youth participation to preserve clean environment for future generations has been seen and this is also evident from the very case of Aarey Forest: the lungs of Mumbai that had around 50000 species of trees; which were to be cut down to built metro railway but the local were vigilant enough to understand and act wisely forcing authorities to shift their metro plan.[20]


The worst of all the clauses under the draft bill is allowance of post facto clearance, in a way, by exempting few industrial projects from prior clearance that were part of EIA 2006 and these massive industrial projects exempted can damage environment without being charged for the same as the both threshold and cost-benefit analysis will not applied to such projects. we need to understand that when a larger industrial project is allowed the duty of committees set up under EIA is to look upon the damage caused by such project to environment and to compensate the damage by planting of trees or etc and these all are done by methods named “threshold and cost benefit analysis”; Therefore the grant of an Environmental Clearance (EC) could not be taken as a mechanical exercise. It could only be granted only after due diligence and reasonable care is taken, since damage to the environment could have a long term impact”[21].


The EIB 2020 while aiming to make the process more transparent and expedient through implementation of online system, further delegations, rationalization and standardization had decentralized the work by setting up the Assessment authority at district level and this move would ensure that every district have its own assessment authority that would lumber some the burden on state authority and at the same time the bill also by digitalizing the process of assessment will help to avoid corruption and scams but however the bill by exempting principle of environmental laws that were part of notification before does not sound for good reason and fails to comply with the basic principles of administrative law[22].


The human being; being more sophisticated of all the beings, after causing enough harm to their own existence had realized the importance of environment. Right to safe and healthy environment being part of right to life cannot be violated but the EAB 2020 by exempting the projects from reach of public domain violates the very Constitutional guaranteed Right under Article 21[23]. The assessment of development project analysis that calculates the amount of harm it is going to cause to environment helps us to reassure that same is built back but complete exemption of the same gives us no analysis of our own action, It is not that development can only happen at cost of damage to nature; Infact the recent mangalyaan mission launched by ISRO and Space X aircrafts are classic example of efforts made to protect environment while stepping towards development. So, development at cost of environment or life is indistinguishable because man for survival needs nothing but a healthy environment.

References: -


[1] NASA reported California is experiencing one of the worst wildfire seasons due to climate changes, https://www.nasa.gov/

[2] Gas leak from renowned industry L.G Polymers on May 7th 2020 in Vishakhapatnam, Andhra Pradesh killed 13 and injured hundreds.

[3] The devastating explosion of nearly 3,000 tons of ammonium nitrate at the port of Beirut caused widespread damage on Aug. 4 2020 that killed 191 people and wounded nearly 6,500. Seven people remain missing and millions homeless. https://apnews.com/0585e0f080b4a04d56d5d11eb4248247.

[4] Raghuram Rajan , Former RBI Governor, The Alarm in GDP, https://www.linkedin.

[5] Section 3 of Environment Protection Act, 1986.

[6] Union Carbide Corporation v. Union of India 1985

[7] M.C. Mehta vs. Union of India (UOI) and Ors. (29.09.2006 - SC) : MANU/SC/8530/2006.

[8] Environment Impact Assessment Notification 2006, Ministry of Environment and Forest.

[9] Section 3(3) of the Environment (Protection) Act, 1986.

[10]Schedule – list of projects or activities requiring prior environmental clearance, Environment Assessment Notification 2006.

[11] Principle 17, Rio Declaration

[12] Principle 9, Rio Declaration

[13] M.C. Mehta and Ors. v. Union of India (UOI) and Ors. (20.12.1986 - SC) : MANU/SC/0092/1986

[14] Section 10(3) of the Environment Assessment Bill 2020.

[15] Environment Assessment Bill 2020, Schedule list of projects requiring prior environment clearance or prior environment permission, Pg No: 37.

[16] Orissa Mining Corporation Ltd. v. Ministry of Environment and Forest and Ors (2013) 6 SCC 476.

[17] Mazdoor Kisan Shakti Sangathan v. The Union of India (UOI) and Ors. Writ Petition (Civil) No. 1153 of 2017

[18] Consumer Education and research forum v. Union of India 1995 SCC (3) 42

[19] L.K. Koolwal v. State of Rajasthan AIR 1988 Raj 2, 1987 (1) WLN 134.

[20] Aarey Forest Case – “All you need to know about Forest laws, management and division of forest land”, https://www.businessinsider.in

[21] Common Cause and Ors. v. Union of India (UOI) and Ors (2017) 9 SCC 499.

[22] Murlidhar v. State Of U.P. And Ors., AIR 1964 All 148.

[23] Subhas Kumar v. State of Bihar 1991 AIR 420, 1991 SCR (1) 5.


~ Poonam Boom

7th semester, B.A LLB

Jagarlamudi chandramouli college of law

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