Environmental Impact Assessment: Unpacking The Nuances Of The Draft EIA Notification, 2020 By - Dr. Aarushi Batra* & Dr. Udai Pratap Singh**

Environmental Impact Assessment: Unpacking The Nuances Of The Draft EIA Notification, 2020

Authored By - Dr. Aarushi Batra*

& Dr. Udai Pratap Singh**

Abstract

Environmental Impact Assessment (EIA) is a systematic process to identify, predict and evaluate the social and environmental impact of proposed project. Traditionally, EIA is an activity which is undertaken before the project is to be set up, to highlight the implications of the project on the environment, wherein the industrialist has to show his project is environmentally benign. India has regulated the concept of EIA through various environmental notifications. In 2020, the Ministry of Environment, Forests & Climate Change came up with the Draft Environmental Impact Assessment Notification. This EIA notification has been controversial for two reasons. Firstly, it has a new clause of ex-post facto clearance, i.e. getting clearance once the project is set up. Secondly, it puts a restriction on the public consultation clause. One of the most striking feature of EIA exercise has been public consultation which this new Draft notification seeks to dilute. In this paper, the author has dealt with the concept of EIA, the laws governing it and the stages in clearance. Further, the author has also tried to throw light on the controversial provisions of the Draft EIA Notification 2020.

Keywords: EIA, ex-post facto clearance, public consultation

*Assistant Professor, School of Law, University of Petroleum & Energy Studies (UPES)

**Assistant Professor, School of Law, IMS Unison University, Dehradun

I. Introduction

India with its incredible speed and scope of growth and development has astonished the world. Representing nearly seventeen per cent of the world’s population, the country is poised to dramatically transform the politics and economics of the world. Of course the ways in which India will achieve that will have massive effects on the environment. It is important for India to immediately prioritize environment. One of the effective ways of doing so is by incorporating environmental impact assessment (EIA) into the planning processes of development projects and activities.[1]

II. Understanding Environmental Impact Assessment

An Environmental Impact Assessment (EIA) can be defined as an effort to anticipate, measure, and weigh the socio-economic and biophysical changes that may result from a proposed project.[2] The purpose of EIA is to assist the decision-makers in preparing an environmental cost-benefit analysis of a proposed project. On analysis, if the benefits from a particular project sufficiently exceed the costs, that project is considered environmentally justified.

Thus, EIA is an exercise which is to be carried out before any development project or similar activity is undertaken to ensure that it will not in any way harm the environment on a short term or long term basis.[3] The object of an EIA is to ensure that potential impacts of the proposed projects are identified and addressed at an early stage of planning and design.

III. Genesis of Environmental Impact Assessment

EIA has been recognized as a critical technique for environmental protection and management for all countries. First conceived by the U. S. Congress in 1969, EIA is considered by many to be the United States’ most valuable contribution to the development of international environmental law.[4] The National Environmental Policy Act (NEPA) enacted by the USA in 1969 has been referred to as the Magna Carta for the environment. NEPA has become a worldwide example of an important method for helping decision makers understand and take into consideration the impacts of their actions. Almost immediately after Congress's enactment of NEPA, several other governments enacted laws based on NEPA, including: Ontario, Canada; New South Wales, Australia; California; and New York City.

The role for EIA was formally recognized at the earth summit held at Rio conference in 1992. Principle 17 of the Rio declaration states that –

“EIA as a national instrument shall be undertaken for the proposed activities that are likely to have significant adverse impact on the environment and are subject to a decision of a competent national authority”.[5]

IV. Laws Regulating Environmental Impact Assessment in India

As the world faces ever-increasing environmental problems, environmental law is becoming more important. Developing countries are experiencing environmental problems of unprecedented dimensions.[6] For example, deforestation is leading to the extinction of countless species and exacerbating soil erosion, flooding, drought, global warming, and other serious problems.  Access to water is another major issue in the developing world where sanitation services are lacking and sewage often goes untreated. Population growth, particularly the rapidly growing urban populations, is also putting tremendous pressure on the environment.

Environmental Protection and Sustainable Development have been the cornerstones of the policies and procedures governing the industrial and other developmental activities in India. It has been observed that Ministry of Environment & Forests has taken several policy initiatives and enacted environmental and pollution control legislations to prevent indiscriminate exploitation of natural resources and to promote integration of environmental concerns in developmental projects.[7]

In India, EIAs of development projects were first started in 1977-78 when the Department of Science and Technology took up environmental appraisal of river valley projects. Subsequently, various other projects were brought under the purview of EIA. Partly in response to the Bhopal gas tragedy, the Ministry of Environment and Forests (MoEF) made various policy decisions with an eye to preventing such future industrial disasters. The EIA Notification was one such directive. The EIA Notification requires that anyone seeking to “undertake any new project in any part of India” or to expand or modernize any existing industry or project must first receive environmental clearance from MoEF.

It was, however, with the enactment of the Environment Protection Act, 1986, that there was a broad move towards institutionalizing environment procedures. The Central Government, under S. 3(1) and S. 3(2) of the Environment Protection Act, 1986, and under Rule 5(3)(a) of the Environment Protection Rules, 1986, issued a draft notification in 1992 laying down norms and procedures for impact assessment. This was followed by a final notification in 1994 and two other notifications amending it.[8]

The Last notification in this regard is the 2006 Central Government notification. It required construction of new projects or activities or the expansion of the existing projects or activities shall be undertaken in any part of India only after prior environmental clearance from the Central Government or by the duly constituted State level Environment Impact Assessment Authority (SEIAA).[9] The notification further bifurcates activities into Category A activities and Category B activities based on the effects to the environment and health, requiring that the environmental clearance has to be sought from the Central Government in case of Category A and SEIAA for category B.

Stages in Environment Clearance for New Projects

The 2006 EIA notification guidelines divided the process of granting environmental clearance into four stages: (1) screening (only for category B projects), (2) scoping, (3) public consultation, and (4) appraisal.[10]

1. Screening - In case of Category ‘B’ projects or activities, this stage will entail the scrutiny of an application seeking prior environmental clearance made in Form 1 by the concerned State level Expert Appraisal Committee (SEAC) for determining whether or not the project or activity requires further environmental studies for preparation of an Environmental Impact Assessment (EIA) for its appraisal prior to the grant of environmental clearance depending up on the nature and location specificity of the project. The projects requiring an Environmental Impact Assessment report shall be termed Category ‘B1’ and remaining projects shall be termed Category ‘B2’ and will not require an Environment Impact Assessment report.[11]

1. Scoping - It refers to the process by which the Expert Appraisal Committee in the case of Category ‘A’ projects or activities, and State level Expert Appraisal Committee in the case of Category ‘B1’ projects or activities, including applications for expansion and/or modernization and/or change in product mix of existing projects or activities, determine detailed and comprehensive Terms Of Reference (TOR) addressing all relevant environmental concerns for the preparation of an Environment Impact Assessment (EIA) Report in respect of the project or activity for which prior environmental clearance is sought.[12] The Terms of Reference (TOR) shall be conveyed to the applicant by the Expert Appraisal Committee or State Level Expert Appraisal Committee as concerned within sixty days of the receipt of Form 1. Applications for prior environmental clearance may be rejected by the regulatory authority concerned on the recommendation of the EAC or SEAC concerned at this stage itself. In case of such rejection, the decision together with reasons for the same shall be communicated to the applicant in writing within sixty days of the receipt of the application.[13]

1. Public Consultation – It refers to the process by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity are ascertained with a view to taking into account all the material concerns in the project or activity design as appropriate. The Public Consultation shall ordinarily have two components comprising of:-

1. A public hearing at the site or in its close proximity- district wise, to be carried out for ascertaining concerns of local affected persons;
2. Obtain responses in writing from other concerned persons having a stake in the environmental aspects of the project or activity.[14]

After completion of the public consultation, the applicant shall address all the material environmental concerns expressed during this process, and make appropriate changes in the draft EIA and EMP. The final EIA report, so prepared, shall be submitted by the applicant to the concerned regulatory authority for appraisal.[15] The applicant may alternatively submit a supplementary report to draft EIA and EMP addressing all the concerns expressed during the public consultation.

1. Appraisal - Appraisal means the detailed scrutiny by the Expert Appraisal Committee or State Level Expert Appraisal Committee of the application and other documents like the Final EIA report, outcome of the public consultations including public hearing proceedings, submitted by the applicant to the regulatory authority concerned for grant of environmental clearance. This appraisal shall be made by Expert Appraisal Committee or State Level Expert Appraisal Committee concerned in a transparent manner in a proceeding to which the applicant shall be invited for furnishing necessary clarifications in person or through an authorized representative. On conclusion of this proceeding, the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned shall make categorical recommendations to the regulatory authority concerned either for grant of prior environmental clearance on stipulated terms and conditions, or rejection of the application for prior environmental clearance, together with reasons for the same.[16]

V. Draft Environmental Impact Assessment Notification 2020

On 23rd March 2020, the Ministry of Environment, Forest and Climate Change proposed a Draft Environmental Impact Assessment Notification. It was intended to replace the 2006 EIA notification.[17] The new EIA notification aims to set aside several essential provisions such as public consultation, and plans to introduce ex-post facto clearance for many projects. It also puts an end to EIA requirement for many industries; allow monetization of environmental violations, among other controversial changes.[18]

Ex-Post Facto Clearance - The first controversial provision is pertaining to ex-post facto clearance which enables the industrialist to setup the proposed project first and then get the environmental clearance retrospectively. This itself, is against the precautionary principle which says measures should be taken to avoid the serious or irreversible damage.[19] The grant of ex-post facto clearance runs contrary to the precautionary principle, which has been recognized by our Apex Court in various judgments. Another disadvantage of this ex-post facto/ retrospective clearance is that project proponent faces the danger of shutting down or closing his project or any other penalty in case environmental clearance is not given by the ministry due to non-compliance. So, there is a provision in the Draft notification, which says clearance will be refused when the project is not sustainable with environmental norms.[20]

The provision relating to ex-post facto clearance is violative of our judicial precedents. In Kerala State Coastal Zone Management Authority v. State of Kerala Maradu Municipality[21], the Supreme Court ordered the demolition of buildings constructed without valid permissions and in violation of Coastal Regulation Zone Notification, thereby negating ex-post facto clearance.[22] Again, in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati[23], the Apex Court struck down and condemned ex-post facto clearance, a concept which new EIA notification proposes to regularize.[24] The Court held that the concept of ex-post facto clearance is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA notification.[25]

Public Consultation - Another striking feature of this draft EIA is that it aims to dilute the public participation, especially through hearing and participation under the EIA process. Public participation/consultation is an important aspect of informed decision making. It enables the locally affected public who have a stake in the proposed project to raise their concerns.[26]

The Draft notification exempts building, construction projects from public consultation, which were earlier exempted by the EIA 2006 notification. Also, the projects under category B2 will be exempted from public consultation. These include mining of minerals in less than 5 hectares of area, offshore and onshore oil and gas exploration, etc.[27]

Secondly, the Draft EIA Notification 2020 has reduced the time period of public hearing from 30 days to 20 days. Restricting this period is unjustifiable and would exclude many groups from consultation. Further, in the Draft EIA notification, public consultation can be done through any of the appropriate modes. This includes both online and offline/regular consultation. As a result, last year Maharashtra Pollution Control Board held a public consultation meeting through Zoom App. Thus, many stakeholders could not attend the meeting due to lack of awareness about this technology. This process is problematic as many people, especially the rural low income group and tribals do not have access to these modern means of communication.[28]

The importance of public participation in the EIA process has been upheld as a core component, and its need has been emphasised by the courts of India in several judgments. For instance, the Supreme Court in case of Lafarge Umiam Mining Private Limited v. Union of India[29], held that public consultation was a mandatory requirement of the environmental clearance process for an effective forum for a person aggrieved by any aspect of any project to register and seek redressal of their grievances. Similarly, in Orissa Mining Corporation Limited v. MOEF[30], the Supreme Court upheld the decision of Gram Sabha and tribal communities in rejecting setting up of Vedanta Plant. The judgment is important as it highlights the concept of public consultation in environmental matters.

However, this notification hasn’t been approved by the government yet. The government should carefully weigh the pros and cons of this Draft notification before bringing it into actual practice.

VI. Conclusion

Thus, we can conclude that, EIA certainly has a crucial role to play in addressing environmental issues surrounding project development. The integration of environment into development planning is the most important tool in achieving sustainable development. Environmental protection and economic development must thus be dealt with in an integrated manner. EIA process is necessary in providing an anticipatory and preventive mechanism for environmental management and protection in any development.

[1] Julie A. Lemmer, ‘Cleaning up Development: EIA in Two of the World’s Largest and Most Rapidly Developing Countries’, (2007) 19 Georgetown Environmental Law Review 275, 277.

[2] Saptak Sanyal and Aditya Shankar, ‘Property Rights and Sustainable Development in India’, (2009) 22 Columbia Journal of Asian Law 251, 253.

[3] Ibid. 254

[4] Fotis Chatzimikes, ‘The Environment Impact Assessment in the United States’, (1982) 49 Ekistics 119, 120.

[5] Rio Declaration on Environment and Development, (Accessed on April 5, 2022).

[6] Lemmer (n 1) 286.

[7] Environmental Impact Assessment- Manual,

(Accessed on April 7, 2022).

[8] Environmental Impact Assessment in India: An Appraisal,

(Accessed on April 17, 2022).

[9]  S.O. 1533 (E) II 3 (ii) Extra 14/9/ 2006

[10] Shibani Ghosh, ‘Demystifying the Environmental Clearance Process in India’, (2013) 6 NUJS Law Review 436

[11] EIA Notification, 2006,

(Accessed on May 8, 2022).

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Shibani Ghosh (n 10) 436.

[16] Ibid.

[17] Stellina Jolly and Siddharth Singh, ‘Environment Impact Assessment Draft Notification 2020, India: A Critique’ (2021), 5(1) Chinese Journal of Environmental Law 11-36.

[18] Draft Environmental Impact Assessment 2020,

(Accessed on May 8, 2022).

[19] Rio Declaration (1992), Principle 15.

[20] Jolly and Singh (n 17) 22.

[21] Kerala State Coastal Zone Management Authority v State of Kerala Maradu Municipality, Civil Appeal No. 4784-85 of 2019 [SC 2019].

[22] Jolly and Singh (n 17) 23.

[23] 2020 SCC OnLine SC 347

[24] Draft Environmental Impact Assessment 2020 (n 18).

[25] Alembic Pharmaceuticals Ltd. v Rohit Prajapati [2020] SCC OnLine SC 347

[26] Ishita Garg, ‘Environment Impact Assessment: India Needs to Revamp its Public Consultation Framework’ (Down to Earth, February 23, 2021)

< https://www.downtoearth.org.in/blog/governance/environment-impact-assessment-india-needs-to-revamp-its-public-consultation-framework-75630> (Accessed on 10th May 2022)

[27] Jolly and Singh (n 17) 26.

[28] Jolly and Singh (n 17) 30.

[29] [2011] 7 SCC 338.

[30] Orissa Mining Corporation Limited v. Ministry of Environment & Forests & Ors. ,W.P.(C) No. 180 of 2011 (SC 2013)