The Ministry of Environment, Forests and Climate Change (MoEFCC) on 12 March 2020 put out the Draft Environment Impact Assessment Notification 2020, which will replace the EIA Notification 2006 - a crucial part of the rules that govern environmental clearances for projects proposed in the country.

In the past, the EIA Notification 2006 have been severely criticised by experts, environmental activists, and people affected by projects for its gross failure to protect the environment. It was hoped, therefore that the current round of revisions to the legislation would address some of the reasons for past failures stemming from problems inherent in the EIA's structure and provisions, as well as its weak implementation.

Sadly, Draft 2020 has fallen completely short of expectations that this critique would be taken on board, and the new notification would be prepared as legislation whose intent and structure would be to ensure protection and enhancement of the environment. Indeed, rather than learn from Covid how vulnerable and unstable our systems of production, distribution, and supply are and why, the proposed regulations appear designed to weaken our already weak environmental governance systems, and prioritise 'ease of doing business' over considerations of environmental protection.

There are many important shortcomings of Draft 2020. However, what is needed is not only correcting the problematic provisions in this draft, but restructuring the entire framework of India's law and regulation for environmental impact assessment and clearances. A few key changes needed to Draft 2020 to initiate this shift are discussed here.

Enshrining basic environmental principles

In Draft 2020, as is also the current approach in the country, the entire process of environmental clearance is focused on an individual project or activity. However, that ignores a whole set of other factors, especially pre-existing realities in the region, consequences of the larger policy and plans within which the project is located, and the implications of larger sectoral events and processes of the industry. It is crucial to locate environmental clearances to individual projects within this larger context; this is an established standard for sound impact assessment globally.

A strategic impact assessment would analyse impacts of a policy or program, while a sectoral impact assessment would look at an entire sector. For example, proper utilisation and disposal of fly ash generated by coal thermal power plants is a huge environmental and health issue. India generates vast quantities of such ash - around 220 million tonnes were generated in 2018-19. Clearances of coal-based thermal power plants (and the MoEFCC’s Fly Ash Notification 2009) require them to achieve 100 per cent utilisation of fly ash generated by them by the 4th year after commissioning, key uses being in making cement or fly ash bricks.

A sectoral EIA would look at all the thermal power plants likely to come up in the next 10-15 years and the total ash that would be generated in the country, and the capacity of the cement and brick industry to absorb this quantity. Only such a macro level exercise can help us understand and plan for 100% utilisation – or plan for the limits to utilisation. Right now, we have a situation where large number of plants are violating the regulations by just dumping millions of tons of it in fly ash ponds or dumps, saying utilisation is not possible.

Regional EIAs would be critical in understanding the cumulative impacts of a number of projects and activities coming up or likely to come up in an area, and help decide whether or not additional projects could be permitted. An EIA/EC process as in Draft 2020 looks at an individual plant oblivious of what is likely to happen around it (even though a weakly worded and virtually unimplemented provision for this exists in the current Notification as well as in Draft 2020.)

To address this requires a fundamental restructuring of Draft 2020 (and the approach to EIA/EC in the country) by incorporating into Draft 2020 a process and structure for carrying out these higher level impact assessments, and thereafter to assess and clear individual projects within the context of these higher level assessments.

Making the Expert Appraisal Committee effective

Another critical lacuna in Draft 2020 is regarding the structure and composition of Expert Appraisal Committees (EACs). The EAC is the most important body in the entire clearance process, as it is the one that sets the Terms of Reference (ToRs) for impact assessments, and appraises projects to recommend (or, very rarely, reject) clearance.

The EAC examines a large number of projects at the same time, often examining 10-12 projects in each of its monthly meetings. To effectively apply its mind to these projects, members need to be able to study all project-related documents and information, perhaps make field visits in critical cases, and be able to discuss amongst themselves in detail. Yet, since none of the members of the EAC are full-time members, they are not able to devote the required time to do this. Moreover, there is very limited preparatory support and background analysis from the MoEFCC/Secretariat.

Second, Draft 2020 requires that for a candidate to be considered for the Chair of the EAC, she/he should an "eminent person having experience in environment policy related issues, in management or in public administration dealing with various developmental sectors." Such broad eligibility that does not give primacy to environmental expertise has led to retired bureaucrats or public officials being appointed as Chairs on many or most of the EACs. Environmental knowledge has rarely been a prominent attribute.

In fact, commenting on this criteria in the existing Notification, the National Green Tribunal, in its Order of 17 July 2014 (Kalpavriksh Ors vs Union Of India Ors Application 116 (THC) of 2013), unequivocally stated that "we are of the considered view that it will neither be permissible nor in the interest of the environment, or any of the stakeholders, to appoint persons from only administrative or management field, without having specific experience in the field of environment." Yet, this gap has been retained, and clearly indicates that the MoEFCC wants to continue to appoint as Chairs of EAC people who presumably would be more familiar with how to advance ease of doing business rather than protect the environment.

This needs to be changed in Draft 2020 to ensure that the Chairs of all EACs be outstanding environmentalists or ecologists, or eminent environmental policy experts who have a demonstrated contribution to environmental conservation and sustainable development. (Wording derived from that used in the 1992 draft of the EIA Notification).

Further, at least 50 per cent of the members, including some of the independent (non-official) members, should be full-time members. The EAC should include social scientists and community representatives to bring in these perspectives, which are missing. A proper secretariat with qualified researchers and analysts should be provided to the EAC to support it and help with background analysis and preparations.

Ensuring Credibility of EIAs

There are serious concerns regarding the quality of EIAs as well. This has ranged from plagiarism to omissions and commissions, but the most striking fact has been that majority of the EIAs have been prepared from the point of view of securing an EC, rather than for any rigorous assessment of the environment impacts. A major reason for this is that the consultant who prepares the EIA is selected, hired and paid for by the project proponent. Further, the EIAs don't receive due scrutiny partly because the EAC is so overloaded. Importantly, most EIAs are done without any involvement of the local and affected communities. All these result in EIAs of questionable quality and credibility.

To make the EIAs more credible a number of measures are needed. One, the project promoter should be distanced from the entire process of appointment of the consultant.  The MoEFCC should maintain a roster of EIA consultants from which it will appoint a consultant to do the EIA for individual projects, and project proponents can pay the MoEFCC.

In this matter, the procedure laid down in the Rules for conducting the Social Impact Assessment (SIA) under the Land Acquisition Act 2013 offer a very useful framework for carrying out impact assessments, and the MoEFCC should adopt it in full as a framework for the EIA too. First and foremost, the Rules require that the SIA be carried out in consultation with the panchayats in the affected area. Draft 2020 must incorporate this provision, and also provide for proper involvement of local communities in preparation of the EIA, as local communities have immense knowledge of local environment.

Today, the only say local communities have is at the so called public consultation, which is carried out at the fag end of the impact assessment process, when the EIA is ready. The public hearing procedure and actual experiences are riddled with problems, which have been extensively documented with by others. Public involvement must come much earlier in the project appraisal cycle.

In addition to all this, there must be a plagiarism check too! If it seems an odd thing to ask for, the blame lies with those who've merrily copied content from one assessment impact into other in the past.

A new framemork, not just a new draft

There are several other issues that need to be addressed to re-orient the EIA/EC process. These include EIAs coming in much earlier in the project decision-making cycle, and not as an after-thought once the decision to go ahead with a project is taken, independence of EACs, issues related to quality of data, deepening public participation, and most important, a shift from today's mindset that the main objective of the EIA Notification is to further projects, rather than ensure environmental protection first.

This is not to say that specific provisions of Draft 2020 are not problematic. In fact, any existing provisions are diluted, e.g. cutting down the time period for public hearings, making projects less transparent. There is also no clear obligation to put the EIA and other documents on the internet, and these are available for scrutiny only "during normal office hours till the Public Hearing is over".

And one category of projects, the B2 category, has been redefined to allow them to go forward without any environmental scrutiny - these projects will not need an EIA or an appraisal by the EAC. This category includes projects with serious potential impacts, like inland waterways. And last but not the least, the draft includes a permanent provision for regularization of projects that have illegally begun operations without seeking environmental permission - this renders the one-time amnesty scheme of 2017 meaningless.

Given this,  while specific provisions of Draft 2020 also need to be substantially reworked, this by itself will not suffice, and it's best that the current draft be scrapped. Instead, we must get a process started on comprehensive and fundamental restructuring of the entire EIA/EC law and regulation in the country. At a time when COVID-induced crisis is forcing us to fundamentally re-examine the foundations of our development paradigms, this is the need of the hour.