Make in India – BJP’s self-reliant economic programme is conceived on par with “market economy”, the one controlled by the World Trade Organisation (WTO) and other international bodies. Bharatmala, a road and highways project and Sagarmala, a programme under the Shipping Ministry, are the structural and infrastructural development projects created to attain the ‘pan India’ dream. Hurdles on executing such ambitious projects are labour and green laws.
In 2014, when the Narendra Modi government came to power, a High-level Committee (HLC) was formed under the Chairmanship of TSR Subramanian, to review environmental laws. An Intelligence Bureau report on foreign-funded NGOs “negatively impacting economic development” and Greenpeace being a “threat to national economic security” was leaked around the same time.
In 2015, a Parliamentary Standing Committee rejected the recommendations of the HLC stating, “Some of the essential recommendations of the HLC have been doubted and would result in an unacceptable dilution of the existing legal and policy architecture established to protect our environment.” The HLC gave recommendations to create a “single window environment clearance system” so as to fasten industrialisation.
Though rejected by the parliamentary committee, the HLC has resurfaced in a new avatar as the draft Environmental Impact Assessment notification, 2020 (EIA 2020). The draft EIA 2020 contains many provisions recommended by the HLC. Let's examine the provisions of Draft EIA 2020:
1. Assault on Federalism: Existing EIA 2006 notification says,“State Level Environment Impact Assessment Authority” shall be constituted by the Central Government and consist of three members including a Chairman and a Member –Secretary to be nominated by the State Government or the Union Territory. The Draft EIA 2020, (Para 7.7) says, “In case the State Government or Union Territory administration fails to forward the names of the Members and the Chairman to the Ministry forty-five days before expiry of the tenure of the existing authority, the Ministry shall constitute the SEIAA or UTEIAA, as an authority, for the purposes of this notification, without referring to State Government or Union Territory administration.” This draft provision is a direct assault on federalism, wherein the power of the state government and Union Territory government's right to nominate its members are curtailed.
2. Standardisation of Terms of Reference: One of the recommendations of the HLC is: “There should be sector-specific model TOR for EIA study...The project proponents upon submission of application should begin EIA study.” (Para 7.14 (iii) of HLC). This recommendation reflects in EIA 2020 as: “To facilitate due diligence by the Project Proponent including collection of primary or secondary data, as the case may be, even before filing of application for grant of ToR or prior-EC or prior-EP, sector wise Standard ToR developed by the Ministry, from time to time, shall be displayed on the website of the Ministry.” (Para 12 (2) of EIA)
Obtaining “Terms of Reference” (ToR) is the initial step to be undertaken by project proponents to attain Environment Clearance. It is on the basis of ToR, which gives guidelines for study, that a project proponent of any industry has to make Environmental Impact Assessment (EIA) study. Existing laws under EIA 2006 mandates the Expert Appraisal Committee (EAC) to provide ToR for conducting EIA study. The draft EIA 2020 curtails this authority of EAC. Moreover, EIA 2020 is standardising ToR for all projects invariably, thereby defeating the very purpose of EIA study. The present position of law says that EAC should determine detailed and comprehensive Terms Of Reference, addressing all relevant environmental concerns for the preparation of an Environment Impact Assessment (EIA) Report.
3. Dilution of Public Consultation: On the public consultation process, HLC (Para 7.14.vi) states, “A mechanism should be put in place to ensure that only genuine local participation is permitted.” The definition clause of EIA 2020 states public consultation process is only for “....local affected persons and others, who have plausible stake in the environmental impact of the project”. This clause will help local enforcement authorities to pick and choose people to be allowed to participate in public hearings.
EIA 2020 says (Para 14.1.c), “In addition, if required, based on the nature of the project, public consultation through any other appropriate mode may be recommended by the Appraisal Committee, or the Regulatory Authority, on case to case basis”. Thereby personal public consultation process can be excluded on recommendations of authorities.
EIA 2020 (Para 14) exempts public consultation for “all projects concerning national defence and security or involving other strategic considerations as determined by the Central Government”, from public consultation. This is a wider power given to the Union Government, wherein even highways, pipelines can be termed as “strategic”.
Further, EIA 2020 (Appendix I, para 7.1.iii) reduces the public notice period of 30 days to 20 days, for furnishing their responses.
4. Categorisation of Red Industries as B2: HLC asks for “Review of A/B category units, to delegate a large number brought under the purview of SEMA”. As such, many of the A and B1 category industries have been converted to B2 category under the EIA 2020, thereby taking it out of the purview of Environment Impact Assessment (EIA) and public consultation, as both are not necessary for B2 category industries under EIA notification. The list of red and orange category industries which are converted B2 category industries are listed out in annexure I.
5. Dilution of Environment Impact Assessment Study: EIA says (para 3.55), “study area” of EIA “means the immediate surrounding area within an aerial distance of,10 km around the boundary of the project falling under Category ‘A’ or 5 km around the boundary of the project falling under Category ‘B’.” By this, the scope of EIA is restricted. Nuclear and other hazards industries need larger study areas.
EIA 2020 says (para 13), “Baseline data shall be collected for one season other than monsoon for EIA Report in respect of all projects other than River Valley projects.”
EIA 2020 says (para 15.7), “No fresh studies shall be sought by the Appraisal Committee at the time of appraisal, unless new facts come to the notice of the Appraisal Committee and it becomes inevitable to seek additional studies from the project proponent and same shall be clearly reflected in the minutes of the meeting.” This provision takes away the scrutiny power of EAC.
6. Modernisation of projects needs no EIA: EIA 2020 (para 16) says that up to 25% intended increase in production capacity through modernization of existing projects does not need an EIA study. And also says that public consultation is not necessary in case of up to 50% increase in production.
EIA 2020 (para 16) also states that in case of above 50% increase in production capacity, ‘No increase in pollution load’ certificate issued by the SPCB shall also be considered in place of EIA and EMP. At present Expert Appraisal Committee or State Level Expert Appraisal Committee within sixty days, has the power to decide on preparation of EIA and public consultations for modernisation of industries. Increase in production means increase in pollution levels; hence EIA, EMP, public consultation and EC are mandated under the present EIA notification. This has been abruptly changed in the draft EIA 2020.
7. No periodical data required: EIA 2020 (Para 20) says, “Yearly compliance report shall be submitted, each year, from the date of grant of prior-EC, till the project life, to the Regulatory Authority concerned”. The present 2006 EIA notification says, “It shall be mandatory for the project management to submit half-yearly compliance reports in respect of the stipulated prior environmental clearance terms and conditions in hard and soft copies to the regulatory authority concerned, on 1st June and 1st December of each calendar year.”
8. On violation: EIA 2020 defines “violation” means “cases where projects have either started the construction work or installation or excavation, whichever is earlier, on site or expanded the production and / or project area beyond the limit specified in the prior-EC without obtaining prior-EC or prior-EP”. Cognizance of the violation can be initiated, as per (Para 22) EIA 2020, only by authorities. Even though the Environmental Protection Act gives people’s right to make complaints on violation, EIA 2020 specifically excludes such a right.
9. Validity Period: EIA 2020 (para 19) extends term of validity period in all cases as following :
i) mining from 30 years to 50 years
ii) Nuclear plant from 5 to 15 years.
iii) River valley projects from 10 years to 15 years.
iv) all other projects from 5 years to 10 years.
10. No need of Environmental Clearance: EIA 2020 exempts many red and orange category industries from the scope of Environmental Impact Notification itself.
M Vetri Selvan is an advocate and a member of Poovulagin Nanbargal, an environmental group based in Tamil Nadu. Views are author’s own.
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Annexure I
B2 Category projects under EIA 2020 which does not need EIA and Public consultation:
Mining of Minor Minerals below 5 hectares of mining lease area.
Foundries involving furnaces such as Induction Furnace or Electric Arc Furnace or Submerged arc furnace or other gas-based furnaces, with capacity more than 1,00,000 ton per annum to 1,50,000 ton per annum (ii) Foundries involving furnaces such as cupola or other furnaces using coal with capacity more than 60,000 ton per annum to 1,00,000 ton per annum (iii) Standalone rerolling mills involving pickling with a capacity more than 1,00,000 ton per annum. (iv) Standalone rerolling mills not involving pickling with a capacity more than 2,00,000 ton per annum.
Chlor-alkali industry or Production of Halogens below <300 ton per day production capacity if a unit located within the notified industrial estates.
Stand-alone grinding units up to 1 million ton per annum.
All projects of leather production without tanning and located within the notified industrial estates.
Manufacturing of Acids other than Stand-alone phosphoric acid or ammonia, Stand-alone sulphuric acid.
Dyes & dye intermediates Projects proposed with zero liquid discharge and located within the notified industrial estates.
Bulk drugs and intermediates excluding drug formulations with zero liquid discharge and located within the notified industrial estates.
Manufacturing of synthetic resins / adhesives up to 1000 ton per annum.
Country Liquor (e.g. based on Mahuwa flower, Cashew, etc.) units more than capacity of 10 kilo liter per day.
Expansion or widening of existing National Highways or Expressways or Multi-modal corridors or Ring Roads by length between 25 km and 100 km involving widening or right of way more than 70 m on existing alignments or realignments or bypasses. Expansion or widening of existing State Highways (500 m to 1000 m above mean sea level).
Annexure II
The following cases shall not require prior-EC or prior-EP, under EIA 2020 are namely:-
Activities declared by State Government under legislations or rules as non-mining activity;
Solar Photo Voltaic (PV) Power projects, Solar Thermal Power Plants and development of Solar Parks, etc.;
Individual industries including proposed industrial housing within such notified Industrial Estate with homogeneous type of industries such as Items 16, 18, 24, 25 or those Industrial Estates with pre-defined set of activities (not necessarily homogeneous), so long as the Terms and Conditions for the industrial estate are complied with (Such estates/complexes must have a clearly identified management with the legal responsibility of ensuring adherence to the terms and conditions of conditions of prior-EC and who may be held responsible for violation of such terms and conditions throughout the life of the Industrial Estate);
Coal and non-coal mineral prospecting; (Orange Category)
Seismic surveys which are part of exploration surveys for offshore and onshore oil and gas including coal bed methane and shale gas, provided the concession areas have got previous conditions of prior-EC or prior-EP for physical survey;
Thermal Power plants using Waste Heat Recovery Boilers (WHRB) without any auxiliary fuel; (Red Category)
Crushing and screening (sizing of ore) without up gradation process of ore;
Secondary metallurgical foundry units,-
(a) non-toxic, involving furnaces such as Induction Furnace or Electric Arc Furnace or Submerged Arc Furnace or other gas-based furnaces, with capacity up to 1,00,000 ton per annum;
(b) non-toxic, involving furnaces such as cupola and other furnaces using coal or briquettes with capacity up to 60,000 ton per annum;
(c) re-cycling units registered under Hazardous and Other Waste Rules, 2016. (Red/Orange Category)
9) Stand-alone re-rolling mills,(Orange Category)-
(a) involving pickling operation with a capacity up to 1, 00, 000 ton per annum;
(b) not involving pickling operation with a capacity up to
2, 00, 000 ton per annum;
(c) not involving pickling and no requirement of fuel for re-heating;
10) Change in product mix for Ordinary Portland Cement (OPC), Portland Pozzolana Cement (PPC), Portland Slag Cement (PSC), Masonary cement or any other type of cement within the sanctioned capacity of conditions of prior-EC. (Red Category)
11) Stand-alone projects for melting of ‘coal tar pitch’;
12) Neem coating of fertilizers or fortification of fertilizers, provided that the total production does not exceed the sanctioned capacity of prior-EC plus the weight of the coating or fortification material used; (Orange Category)
13) Extraction of Alkaloid from Opium; (Red Category)
14) Manufacturing of Linear Alkyl Benzene Sulphonic Acid (LABSA) from LAB;
15) Country Liquor (e.g. based on Mahuwa flower, Cashew, etc.) units up to capacity of 10 kilo liter per day;
16) Common Effluent Treatment Plant proposed for projects which by themselves do not require prior – EC.
17) Micro Enterprises in respect of project such as:
i) Mineral Beneficiation (Red Category)
ii) Chemical processing of ores/concentrate (Red Category)
iii) Pellet plants (Orange Category)
iv) Secondary metallurgical industry (Orange Category)
v) Cement plants (Red category)
vi) Standalone clinter grinding units (Orange Category)
vii) Manufacturing of acids (except phosphoric acid or ammonia, sulphuric acid) (Red Category)
viii) Petroleum products (Red Category)
ix) Basic organic chemicals (Red Category)
x) Manufacturing of paints (Red Category)