[Marxistindia] Withdraw EIA notification 2020

[news from the cpi(m)]

July 17, 2020

Press Release

We are herewith releasing the full text of the letter addressed today  
to the Union Minister for Environment, Forests and Climate Change,  
Shri Prakash Javadekar by Brinda Karat, Member, Polit Bureau, CPI(M)  
giving the CPI(M)’s response to the Draft Notification for Environment  
Impact Assessment (EIA) 2020.

This is being released to the press

****

July 17, 2020

To
The Union Minister of Environment, Forests and Climate Change,
Government of India,
New Delhi

 From
Brinda Karat
Polit Bureau Member CPI(M), Former Member Rajya Sabha,
New Delhi

Namaskar Shri Prakash Javadekar ji,
This note is further to my letter of May 5th requesting an extension  
for time for public responses on the Draft Notification for  
Environment Impact Assessment (EIA) 2020 which is to supersede the EIA  
Notification 2006. The Delhi High Court has extended the deadline for  
public feedback to August 11 which is a positive intervention.
Kindly consider the attached Note as a formal Response on behalf of  
the CPI(M)  objecting to the Draft EIA Notification 2020 on the  
grounds detailed in the Note.
Comments on behalf of the CPI(M) on the Draft EIA Notification S.O.  
1199(E) dated March 23rd Issued by Ministry of Environment, Forests  
and Climate Change
Some General Issues:
It is clear enough that India’s environment regulation structure is  
not robust and needs correction. EIA is part of this structure. India  
has improved its position in the World Bank’s Ease of Doing Business  
Index to rank 63 out of 190 countries in 2020, an improvement of 14  
ranks compared to last year.  However, India ranked an extremely low  
168 out of 180 countries in Yale University’s Global Environment  
Performance Index a drop of 2.9 points. This clearly shows that the  
priority of the Government is to help business, including by dilution  
of environmental regulations and with serious consequences for the  
environment, and the lives and livelihoods of those dependent on  
natural resources.
After one and a half decades of the EIA Notification 2006 (henceforth  
EIA 2006), this was an opportunity to use this experience to redraft  
the EIA guidelines so as to ensure tighter regulations and strict  
monitoring and implementation.  Unfortunately the Draft EIA  
Notification 2020 (henceforth Draft EIA 2020), instead of ensuring  
that weaknesses in EIA 2006 are addressed, has done the opposite.
1. Draft EIA 2020 has been issued under Section 3 of the Environment  
Protection Act, 1986. This gives power to the Central Government to  
take measures “for the purpose of protecting and improving the quality  
of the environment and preventing, controlling and abating  
environmental pollution.”  Draft EIA 2020 far from satisfying the  
statutory requirement to “protect and improve the environment,” is on  
the contrary designed to dilute existing protections through different  
means. Moreover the Draft seeks to supercede not just EIA 2006 but  
also circumvent various rulings made by the National Green Tribunal  
and Courts, including the Supreme Court, against the Central  
Government’s attempts to amend or otherwise dilute environmental  
regulations. Therefore the legality of this exercise itself is in  
doubt and is liable to be struck down by the Courts.
2. Draft EIA 2020 is part of a wider policy approach of the present  
Government to appease corporate interests and meet their demands in  
the name of encouraging investment and facilitating “ease of doing  
business.” This includes policy decisions for dilution of  
environmental regulations for approval and compliance by industries.   
The changes made to liberalise and de-regulate commercial mining with  
relaxed environmental norms and time-frames are part of this approach.  
  The proposed changes are not guided by environmental concerns but by  
the concerns of corporates.
For example Draft EIA 2020 does not at all address a critical  
experience of the last several years, namely the role of Accredited  
EIA Consultant Organizations (ACO) who prepare the initial EIA Report  
on behalf of the project proponent, and the highly unsatisfactory lack  
of rigour in these Reports which are often known to be simply copied  
from other Reports. The conflict of interest between an agency  
employed and paid by the project proponent and the mandate of  
environmental protection laws is obvious. Linked to this is the  
difficulty in accessing EIA Reports even though there are rules for  
their publication.  One of the important aspects of public  
consultations before projects are approved is full prior information,  
which is adversely affected by lack of access to EIA Reports and the  
biased as well as poor quality of information contained in them. Only  
summaries of the EIA Report are made available for public  
consultation. Draft EIA 2020 makes this entire EIA Appraisal process  
even more opaque. Surely a point for consideration is how to improve  
the process and ensure preparation of EIA Reports by public or other  
independent authorities.
3. Most objectionable is the fact that in the entire document the  
concerns of adivasis who are going to be the most affected community  
due to the dilution of environment regulations do not form any part of  
the notification. The words Adivasi, tribal, Gram sabha, Forest Rights  
Act, Fifth Schedule, Sixth Schedule, PESA find no mention. In the  
definition of Baseline data ( Clause 3 (5), or in the definition of  
General Conditions (3.30), or in the section on public consultations  
(3. 46),  with regard to land acquisition (17(5)d), the constitutional  
and legal rights of Adivasi communities (17.d)  are ignored. This  
alone is strong enough ground to reject the notification.
4. EIA 2006 was followed after four years by the EIA Guidance Manual  
for Mining of Minerals prepared by the ASC Hyderabad and released in  
February 2010. This manual which lays down various parameters for  
Terms of Reference, EIA guidelines etc was linked to EIA 2006  
definitions and clauses. With the proposed supercession of these  
guidelines by Draft EIA 2020, what will be the status of the 2010  
manual guidelines? This is all the more important because of the  
opening up of the mining sector to commercial interests.  Regardless  
of the terrible human and environmental costs of opencast mining, this  
is the major method of mining being approved by the Government. The  
last decade has shown the destruction of air, water and land around  
these open cast mining sites. With doubt as to the status of the  
Guidance Manual, there is nothing in Draft EIA 2020 which even  
recognizes leave alone addresses these intensified threats to the  
environment through what mining workers refer to as “slaughter  
mining.”  Also importantly the Guidance Manual of 2010 specifically  
mandate the responsibility of project proponents to ensure the  
remediation  measures for closure of mines to ensure that post mining,  
the land is restored to its original state. This is an ongoing process  
which is reviewed every five years according to the manual. However,  
who is responsible for this post-project remediation and who will  
monitor it, given the massive destruction being caused, is an urgent  
issue which needs to be considered and addressed, but Draft EIA 2020  
is silent on all this.
5. On certain aspects, Draft EIA 2020 promotes a centralization of  
authority with the Ministry. For example in Clauses 6, 7, 8 and 9 in  
the constitution of important committees such as appointments to the  
Expert Appraisal Committee at the central and state level and also to  
the important Technical Committee, the Ministry has the sole right for  
appointment and even in the case of State Level EIAACs, the Union  
Ministry retains the right to constitution of these Committees and  
thereby to intervene at the State level.  These committees form the  
architecture of the environmental oversight required. Without a  
mandate for autonomy, these committees may well become rubber stamps  
for what the Government wants approved. Unfortunately in several cases  
in the recent past this has proved to be the case. The Ministry in  
Clause 11 even assumes the right to form more than one expert  
committee either at the Centre or in a State. In other words if the  
Central Government is concerned that a particular State’s Appraisal  
Committee is not following its agenda, it can appoint another  
Committee without consultation with the State Government. The  
appointment of members of such committees cannot be the sole  
prerogative of the Ministry. A more impartial method of selection of  
members of various committees is required. Equally it must be ensured  
that these committees also have a more democratic social composition  
such as inclusion of women, of members of scheduled castes and  
scheduled tribes, who have the requisite qualifications.
6. Arising from these general issues raised above, it is clear that:  
(a) Draft EIA 2020  is an instrument to override earlier court  
decisions which have struck down the Central Government’s rules,  
norms, notifications and amendments so as to dilute EIA regulations;  
(b) it does not address the conflict of interest in the present setup  
of ACOs being paid consultants of project proponents; (c) it does not  
ensure that the Guidance Manual for mining of minerals should be part  
of EIA 2020 thereby weakening the regulations on opencast mining in  
particular; (d) there is need to ensure the autonomy of the various  
Appraisal and Technical Committees through changes in the method of  
selection, which form the architecture of environment regulation,  
ensure due participation of States, and also ensure a more democratic  
social composition; and  (e) the constitutional and legal rights of  
adivasis are diluted and in some cases eliminated.
7. In addition there are four main specific areas of concern in the  
changes brought about in Draft EIA 2020:
(1) Re-categorisation of projects so as to exempt a wide range of  
projects from the scrutiny of Appraisal Committees and also from  
public consultation; (2) Dilution and in some cases elimination of the  
process of public consultation; (3)  Post-facto legalization of  
violations by projects; (4) a number of exemptions/ benefits given to  
projects through various clauses.
7. (1) Clause 5: The re-categorisation and placing of a large number  
of polluting industries in Category B2 which do not require scrutiny  
by Appraisal Committees and in many cases also do not require prior  
environment clearance or public consultation, is against the EIA 2006  
and the Environment Protection Act 1986, and constitutes a violation  
of minimum requirement of environment protection. The most blatant is  
the virtual elimination of regulations and scrutiny for the real  
estate and construction sector. It is shocking and unacceptable that  
only projects of 50,000-1,50,000 sq metres of built up area have to  
seek scrutiny by the Appraisal Committee. Construction projects of  
20,000-50,000 sq.m need not be appraised and are exempt from public  
hearing, while those below 20,000 sq.m do not require prior EC/EP at  
all. The Ministry had moved amendments to EIA 2006 to similarly exempt  
from Appraisal all Projects of 50,000-1,50,000 sq.m   which was struck  
down by the NGT. The Government went in appeal to the Supreme Court  
which upheld the NGT decision. Now, Draft EIA 2020 seeks to nullify  
the NGT and SC judgments. This is highly objectionable. Another  
shocking example is the re-categorisation of oil and gas exploration  
in B2. It would appear that just before the Baghjan 5 oilfield  
explosion in Assam, clearances were given for gas exploration within  
the Dibhru Saikhowa National Park.  To avoid public consultation, such  
projects have been shifted to Category B2. This is a clear misuse of  
Government’s powers. Many other polluting industries also exempted.  
The various re-categorisations in Draft EIA 2020 are not in the  
interests of either the environment or local communities. We are  
opposed to this exercise which only serves the interests of the  
corporate sector.
  Further, in Clause 5.7 there is also as an extremely vague  
definition of “strategic” projects, apart from defence and security  
projects,   which will not require either appraisal or public  
consultation. In addition no information need be put in the public  
domain. Any industry such as power generation or building private  
ports may be termed strategic and be exempted from environmental  
regulation. This is highly arbitrary. Citizens are well aware of the  
requirements of the nation’s security. But why should such projects,  
not conform to environmental and public interest considerations? In  
fact, even defence and security related Projects should be appraised  
from environmental impact considerations, and relevant non-military  
environment-related information should be made public. Therefore this  
definition is opposed.
Clause 26 is also a re-categorisation of those projects for which  
prior environmental clearance is not required. While we fully support  
the exemptions given to artisans and other local communities to freely  
access natural resources like sand, mud, timber etc for  own use, it  
is most unfortunate and objectionable that a list of other industries  
have also been included which have a known  negative impact on the  
environment. These include solar thermal power projects, solar parks,  
coal and non coal mineral prospecting, minor irrigation projects with  
a command area upto 2000 hectares, Defence manufacturing units for  
explosives and several others. Except for the category of artisans  
like potters etc, there should be no exemptions for the rest of the  
units nor there re-categorisation. All procedures including EC/EP and  
public hearings should apply.
7 (2) Clause 14. Public Consultation. Draft EIA 2020 does grave  
injustice to the rights of people who will be adversely affected by  
projects. The consultation process is cursory and weak. We would like  
to categorically state that for every project, including defence  
projects, public consultation is required. We reject as anti-  
democratic and unjust all proposals in Draft EIA 2020  which exempt  
projects from public consultation such as in Clause 14.2 ( a to g).  
This objection is valid also for projects of expansion and  
modernization. The notification allows expansion upto 50 percent  
without any public consultation. Any expansion or modernization must  
be preceded by a public consultation. We also strongly object to  
Clause 14.8 in which permission is given to scrap “public hearing” if  
the “local situation” warrants it. This gives the project proponent  
and the authorities a loophole to avoid public hearings which are  
inconvenient to their interests.  In 14.9 a condition is put to access  
the EIA Report through a “written request” to the regulatory authority  
who will make it available. Why should such conditions be imposed on  
access to a public document? The Draft EIA Report must not only be  
easily accessible without conditions but also available at the block  
level. It should also be available in the language of the State. The  
time given for responses should not be cut to 20 days but remain at a  
month or even extended to 60 days. Because of the work conditions  
during the agricultural seasons to have only one public hearing is  
unfair. There should be at least two public hearings with a gap of two  
weeks so that all affected will have an opportunity to attend. Once  
the final EIA Report is prepared it should be once again placed before  
a public hearing. This is essential to make the process transparent  
since very often the objections or suggestions made in public hearings  
find no reflection in the final EIA Report.
Where forest areas and Adivasi areas are affected, it is essential to  
have public consultations with the Gram Sabha. As far as projects in  
Fifth and Sixth Schedule areas are concerned, there are constitutional  
and legal protections including the Forest Rights Act and PESA. The  
2013 Land Acquisition RR Act also has a separate chapter for Adivasi  
communities affected. In the notification there should be a separate  
procedure for consultation with Gram Sabhas. Also where adivasi  
communities are directly affected, it is a question of getting consent  
not just consultation.
7 (3) Clause 22 and 23: Dealing with Violation Cases: This entire  
section from Clause 22. 1-15 is extraordinary in its sweep of helping  
out offenders and those who have illegally looted natural resources.  
Moreover it does not recognize the right of local people or others in  
the know to report violations. This Clause gives license for violators  
who can be assured that the violations will be condoned by paying a  
fine and they can continue with their activity with no fear of their  
license being revoked. Even those who violate the condition of  
obtaining prior environment clearance before starting the project will  
be let off with a fine. It is nothing but postfacto legalization of  
all the illegal acts committed by the project promoters.  Such  
post-facto environmental clearances have also been repeatedly struck  
down by NGT and Supreme Court as gross violations of the Environment  
Act.The Supreme Court in its ruling in April 2020 had said “ex post  
facto clearance is in derogation of fundamental principles of  
environmental jurisprudence.”  If such condoning of criminal  
violations is to be done, what is the purpose of any environmental  
regulations? We oppose this section in its entirety and also Clause 23  
which deals with condoning non- compliance.
7(4) There are a number of clauses in the notification which are  
beneficial to project promoters but highly damaging to people’s  
interests and the environment. For example:
Clause 3(16) The definition of Corporate Environmental Responsibility  
does not bind the amount to be paid and is being included as part of  
the project cost. In fact as the name itself suggests it is corporate  
responsibility to ensure enhancement of the environment over and above  
the changes to be made based on public consultations.
Clause 19.1 :This is a peculiar clause as the Heading is Construction  
or Installation Phase but includes mining leases and projects. In EIA  
2006 PEC was for a maximum period of thirty years project life.  
However through this clause the project life period as well as the PEC  
is extended upto fifty years. This is objectionable and is nothing but  
a gift of natural resources to private mining companies.
Clause 20.5: This relates to an over generous approach to projects  
which do not submit annual compliance reports of conditions which have  
to be fulfilled as required by law. Three years are given as the limit  
before the prior EC or EP is revoked. The company can get away with  
paying a fine. The maximum time given should be six months, after  
which notice should be issued and steps for revocation should be  
taken. It should be understood that non-fulfillment of conditions is  
one of the most important reasons for damage to interests of local  
communities and environment. There will be a high cost to pay if such  
non compliance is legalized in this manner.
Clause 24.3 b: This gives permission for cluster lease holders to use  
the District Mineral Fund to augment funds for implementation of EIA  
or EMP. In the general mining of minor minerals in tribal areas,  
preference should be given to Tribals as far as grant of lease is  
concerned. However there is no mention of this in Draft EIA 2020.  The  
District Mineral Fund is meant specifically to address the huge  
developmental gaps of local communities in areas where mineral mining  
is allowed. Therefore to divert this fund to fulfill the needs of  
those who hold leases in cluster areas is against the very concept of  
the formation of District Mineral Fund. We oppose this clause.
  Clause 25: This concerns the appeal which can be made to the NGT  
against any prior EC or EP. Only thirty days is given for such an  
appeal. This should be extended to between two to three months.
Conclusion
The draft notification is in keeping with the pro-business agenda of  
the Central Government in the name of development. People’s interests  
or concerns of protection of the environment are not the concern of  
Draft EIA 2020. In fact it gives license for wrong-doing and violations.
This Draft Notification should be withdrawn. It may be redrafted  
taking the opinion of all stakeholders. This would be in the interests  
of the environment, the people and the country.

With regards,


(Brinda Karat)
Member, Polit Bureau, CPI(M)