Obtaining environmental clearance for developmental projects from the Ministry of Environment and Forests (MoEF) was a mere administrative requirement till January 1994. Since then, the Environment Impact Assessment (EIA) Notification (under the Environment Protection Act, 1986) has made it mandatory for 30 industrial and developmental activities to get environmental clearance from the central government. Since then establishment and expansion of a range of activities relating to infrastructure, industrial processes/operations and so on need to follow a procedure laid down in the notification, one of them being the preparation of a detailed EIA report. The report is then looked into by an Impact Assessment Agency comprising of officials of the Ministry of Environment and Forests before granting environmental clearance to a project. If deemed necessary it consults a committee of Experts.
In its essence the notification presented a very important tool in the process of environmental decision making in the country. It was introduced with the purpose of identifying and evaluating the potential impacts (beneficial and adverse) of developmental projects and to understand their environmental, social, cultural and aesthetic consequences. This is essential to determine the viability of a project and thereby forms an important basis to decide if a project should at all be granted environmental clearance. And if yes, on what conditions.
The last ten years have seen a lot left to be desired when it comes to the operationalisation of the notification. There have been enough cases when clearances have been granted on inadequate, incorrect and incomplete data. The attitude of project proponents towards the requirements of the notifications has often been that of merely fulfilling a legal formality. And moreover, there have been a series of amendments to the notification, including some that have compromised the very spirit of the notification.
What is even more ironic is what the notification clearly spells out : Concealing factual data or submission of false, misleading data/reports, decisions or recommendations would lead to the project being rejected. Approval, if granted earlier on the basis of false data, would also be revoked. Misleading and wrong information will cover the following: False information; False data; Engineered reports; Concealing of factual data; False recommendations or decisions.
The case of the Kameng Hydroelectric Project in Arunachal Pradesh is indicative of the big chasm between intention and practice. The project involves the construction of two dams on the tributaries of the Kameng River, Bichom and Tenga with the total submergence being 370 ha. This area is extremely rich in biodiversity. The EIA by Water and Power Consultancy Services, a Ministry of Water Resources Undertaking, New Delhi identifies only 15 bird species in the area being diverted for the project. Based on the survey conducted the report highlights that avifauna was surprisingly poor. And this, when the powerhouse of the project adjoins the Pakhui Wildlife Sanctuary, an internationally recognised Important Bird Area. The EIA also forgets to mention the presence of the highly endangered white winged wood duck, and the four species of hornbills found in the region and surrounds. When it comes to commenting on the impact the powerhouse will cause to the wildlife, the report states the animals will naturally relocate themselves in suitable habitations in the deeper part, out of their instinct.
The environmental clearance for this project was granted in March 2001.
Disarming the Law
The foundations of failure
For most activities, the notification directs that a public hearing for a project seeking environmental clearance needs to be conducted. This was made possible with an amendment to the notification in 1997. It provides a forum where the local residents and concerned groups come face to face with the project proponents and government authorities to voice their suggestions and objections regarding that particular activity/project. This important space has been used as a medium for peoples participation in environmental decision-making on several instances. One example is the hearing of the Prototype Fast Breeder Reactor (PFBR) in Kalpakkam (Tamilnadu) held on 27th July 2001 where over 100 fisherfolk, farmers and residents of the area, environmentalists were present to highlight their apprehensions.
There are issues here too. Years after they were first introduced, public hearings continue to be organized with an extremely casual and token approach. In a public hearing for opencast mining proposed in Bandurang (Jharkhand) on 25th February 2004, the EIA and Environment Management Plan were not made available prior to the hearing, clearly violating what is otherwise mandated by law. The real scope of public hearings was completely shattered when truckloads of employees of the company were brought in especially and were made to occupy the front seats, making a mockery out the hearing process.
There is another more nuanced issue. The public hearing is presided over by a public hearing panel whose conclusions are merely recommendatory and not mandatory. Currently, if the overwhelming majority at the hearing is in favour of rejecting the project and the public hearing panel agrees, this view will only be considered while granting the clearance.
Things have reached a point when many non-government organizations and individuals have had to take legal recourse for the implementation of something that is already within a legal framework. The most recent one is the Public Interest Litigation filed by the Paryavaran Suraksha Samiti (PSS) in the Gujarat High Court on 6th December 2003. The respondents in the case are Ministry of Environment and Forests, Ministry of Environment of the Gujarat State Government, Gujarat Pollution Control Board, District Collectors of Bharuch and Panchmahal, United Phosphorous Limited and Nirayu Private Limited.
PSS had attended public hearings of proposed projects of the pesticide and bulk drug companies respectively and raised several questions, which the company representatives were unable to answer. They had also pointed to the fraudulent and incomplete information in the EIA reports and had written several letters to the concerned ministries and departments. PSS was left with no choice but to approach the High Court for the second time on the issue, and challenge that more than 23 industries started after 1994 have done so, without fulfilling the EIA requirements, either adequately or not at all.
Over the years the notification has been amended a number of times diluting the very spirit. One of them was on August 1, 2001 which exempted (i) small scale industrial undertakings located in (a) notified/designated industrial areas/industrial estates or (b) areas earmarked for industries under the jurisdiction of industrial development authorities; (ii) widening and strengthening of highways; (iii) mining projects (major minerals) with lease area up to 25 hectares, (iv) units located in Export Processing Zones, Special Economic Zones and (v) modernisation of existing irrigation projects, from the process of mandatory public hearing. So a mine contractor can get 4 small units of 25 hectares each right next to each other and bypass the public hearing requirement for whatever it is worth. But, more importantly the contractor can undermine the right of a community living next to a proposed mine of 25 hectares. Because the project is exempted from a public hearing, nearby citizens cannot state their opinion on the project, and equally, participate in the decision-making that affects their environment.
Almost a year later was the 13th June 2002 amendment which amongst other things exempted various categories of industries less than Rs.100 crores from environmental clearance altogether! The same amendment also made the progressive step of mandating that the entire EIA report be made a public document before a public hearing, whereas earlier it was only necessary for the project proponent to provide an executive summary. But then as many would say, whats the use of making the entire impact assessment report a public document when gradually development projects or industries are going to be exempted?
A decade since the EIA notification was first issued, the situation seems really bleak. There are some positive cases where EIAs are conducted well, or efforts are taken to organize public hearings well. But these islands of hope unfortunately get lost in the vast sea of issues. Resolving them will require a fundamental change in the mindset of project proponents and implementers of the law. For the sake of the countrys environment and its peoples livelihoods, this needs to happen before sooner than any later.