India has complied with the Environmental Impact Assessment (EIA) requirements as a consequence of the Stockholm Conference 1972 (also known as the First Earth Summit). The globally accepted principles of the Stockholm Conference were also adopted by India, initially as a Constitutional Amendment, initially through the introduction of Article 48A and later, through the enactment of various legislatures including the Wildlife Act (1972), Water Act (1974), Forest Act (1980), Air Act (1981) and Environmental Protection Act (1986). With the establishment of the Ministry of Environment and Forest (MoEF) in 1985, the Ministry took steps to start with the assessment of certain high-impact environmental projects such as the river valley projects, hydropower projects and so on.[1] The Environmental Protection Act 1986 also made it mandatory to obtain environmental clearances for Mega-Projects which were categorised into 11 broad categories. With the first Environmental Impact Assessment notification in 1994, it became mandatory for projects under 29 categories listed in Schedule I to run an assessment of environmental impact before their establishment.[2] Since the initial days of the EIA, the legislation has undergone various amendments, some of which even lowered the scope for a thorough environmental impact assessment and often worked in favour of rich conglomerates to offer them easy environmental clearances at the cost of huge ecological losses.
How has the EIA fared in India through the years? A simple answer to the question shall be unjustified. To understand if the EIA lives up to its promise and if not, what changes must it undergo, let us examine the legislature in comparison with the EIA legislations of developed countries. In doing so, we shall take a look at the various loopholes that weaken the objective of EIA and the measures that can be taken to minimise the environmental impact of developmental projects at the level of the legislature.
Adoption of EIA in India vs Developed Countries
Professor Karl William Kapp[3], a German-American economist, in his research paper on River Valley projects in India, made a mention of certain underlying assumptions that serve as the premise for the cost-benefit evaluation of a developmental project. He elaborates on these underlying assumptions to make the point that in an underdeveloped country, the use of the astute monitory cost-benefit calculations for the purpose of investment does not necessarily guarantee optimal real or social rate of return. In developed countries the analysis of cost-benefit, as an investment criterion, can yield near-accurate results whereas in developing countries, the analysis of cost-benefit fails to reflect investment outcomes accurately. To illustrate the same, Professor Kapp laid down the following assumptions[4]:
- The prices are the true opportunity cost of resources
- Optimal employment of human resources
- Problem of equal opportunity and access
- Social or intangible benefits do not exceed benefits in monetary terms
While the three points of assumption, upon which cost-benefit analysis is generally premised, holds true for developed countries, these assumptions are not equally applicable in case of underdeveloped countries. Therefore, cost-benefit analysis of developmental projects as investment criteria would fail to yield accurate outcomes as compared to developed countries. This drives us to the point that underdeveloped nations are at much larger risk of incurring greater costs as compared to benefits from developmental projects in the long run. Therefore, the need for a comprehensive evaluation of Environmental Impact Assessment becomes all the more necessary in developing countries like India.
Very early on, India took on the task of Environmental Impact Assessment to understand if the Multi-purpose River Valley Projects (MRVP) that are undertaken fulfil the tasks for themselves. Despite decades having passed by, it is contended that the project performances of some of the earliest MRVPs are still incomplete.[5] Evelyn Su Wei Wong, in her paper on the cost-benefit analysis of large dams[6] remarks that the business of building humongous dams were taken on rhapsodically by newly independent developing countries between the 1960s and 1970s; India was one of these countries. The high-impact development projects taken on in the 1960s and 1970s were often a result of political bargaining and not cost-benefit assessments which was later referred to as the ‘Big Push Theory’. The Big Push Theory brought into the discourse the coercive policies of developed nations which exerted an enormous push on the developing nations towards undertaking high-impact developmental projects with little to no assessment of environmental impact. The Push was one of the most feasible options to be able to escape a poverty trap and render the developing country the economic boost that it needs. Thus, often the assessment of Environmental Impact of such projects remained in the backburner.[7]
In fact, by the time the East adopted dams, the West had already given up on dams as an effective tool for harnessing hydropower. In India, the Multi-purpose River Valley Projects received massive criticism for its oversight of environmental impacts including impact on the life and livelihood of millions of tribals who were displaced owing to their lands being submerged. A clear statistical picture came to the forefront only in 1991 when the World Bank revealed that the large bank-financed irrigation projects in India benefitted 15 families against each family displaced.[8]
This, in turn, affirms the conclusion that the EIA in India is far less effective than the EIAs adopted by the developed countries.
To also understand the major points of differences of EIA in India with EIAs in developed countries, we must look into the challenges faced by India in its adoption and practice of EIA. In doing so, we shall also go over the procedure of EIA in India in comparison with the EIA procedures abroad.
Challenges while Implementing EIA
India, through its legislative enactments and judicial interpretations, has taken concrete steps to protect and preserve the environment even in the face of aggressive developmental policies which have been a result of an unfair bargain between India and the countries of the Global North. However, India is often left to bear the brunt of these unfair bargains in terms of ecological imbalances, jeopardy of social benefits and looming certainty over the question of climate justice in India.
It is no secret that the question of socio-ecology is inextricably linked with the question of economic inequality. The relationship between socio-ecology and economic inequality is rather dialectical: any change in one affects the outcomes of the other. Therefore, we see that the countries with huge economic inequalities are also the countries where the aspect of climate justice is the most compromised. Similarly, the countries where climate justice policies are compromised are also some of the most unequal countries in the World. What is interesting is how these countries are also where strong policies and compliances on environmental protection is most required. Professor Prakash Kashwan[9] in his book Climate Justice in India has illustrated how people in the lowest rungs of the society are the most vulnerable to extreme climate events. Therefore, climate justice is also primordial need for the underprivileged in India alongside the need for social and economic security.
Notwithstanding the several legislative enactments and judicial precedents to maintain socio-ecological balance and prevent the super-exploitation of environment, the legislational loopholes and implementational challenges prevail. Let us take a look at some of major legislational loopholes and challenges when it comes to EIA in India.
- Late-stage assessment as compared to early assessments
In India, unlike developed countries, the EIA process does not play the early-stage evaluative role, as is expected of it to do. In fact, for most industries, the EIA process begins only after the land has already been acquired. Thus, the process of land acquisition is kept outside the scope of EIA.[10]
Corporations and conglomerates enter into contracts with private players and even governments to finalize acquisition of land before the EIA process begins. In some cases, advanced payments are also made to State Governments by corporations for securing required permissions for land acquisition.[11]
The detachment of the process of land acquisition from EIA defeats the purpose of EIA legislation besides reducing it to a mere formality to acquire downstream approval when most of the project has been planned and finalized without taking into consideration the environmental impacts of the same. Here, compliances with EIA regulations become a final seal of approval rather than analytical tool for sustainable development when it comes to high-impact developmental projects.
- Post Facto and Deemed Clearances
EIAs in India are ripe with provisions that make it getting environmental clearances by project authorities all the more effortless. Project authorities are eligible to get deemed and post facto clearances even without a thorough analysis of the cost-benefit and environmental implications of the projects. The EIA amendment of 2006 added the provision for deemed clearances for Category A Hydro-projects if Terms of Reference (TOR)[12] submitted to the Expert Appraisal Committee is not finalized and conveyed to the applicant within sixty days of the receipt. Similarly, the grant of ex post facto clearances in EIA have been frequent despite several verdict against the grant of such clearances. Such provisions make EIA have no bearing whatsoever on project clearances. Additionally, they liquidate essence of EIA to mere paperwork and lip-service of environmental protection.
- Coal and Non-Coal Mining
Even as the West moves towards ‘clean energy,’ coal continues to be one of the most sought-after sources of energy in India. A study revealed that 35% of all clearances over the years have been clearances for coal mines[13]. It is also noted that the Ministry of Environment, Forest and Climate Change (MoEFCC) have given the most clearances and have been particularly favorable towards projects concerning coal mines. Public hearing within the process of scoping has also been eased for coal mining.[14]
In India, the abuse of natural resources and environment is staggering when it comes to the process of coal mining. Mine water and effluents discharged from coal mines are one of the major pollutants in area with a concentration of coal mines. Not to mention, India has no dearth of underutilized coal mines. As per a study, there are as many as 240 abandoned coal mines in India.[15] Coal mining districts are also identified as critically polluted areas by the Ministry of Environment, Forests and Climate Change (MoEFCC).
EIA draft 2020 has also proposed that coal and non-coal mineral prospecting shall be granted an exemption with regards to Environmental Clearances and Environmental Permissions which essentially means that coal and non-coal mineral prospecting projects can forgo prior EC and EP.
- Negligible Public Participation
Perhaps, the problem of inadequate public hearing is the most talked about when it comes analyzing the drawbacks of the EIA. The indispensability of the process of public hearing in EIA regulations came up for the first time with the EIA amendment notification of 1997. Today, public hearing is a precondition for environmental clearance under EIA for some 30 odd types of developmental activities. However, the requirement for public hearing has been diluted and public participation reduced a mere tokensim for the sake of compliance with EIA requirements.
The reluctance to go through an inclusive and participative public hearing is a matter of concern for civil rights activists who are often a witness to the apathy of project authorities, EIA consultants and regulatory authorities to the locally affected people. It is alleged that in most cases the selection of date, time and venue of public hearing is decide arbitrarily without consulting locally affected people.[16] Unfortunately, such public hearings are also not independent of the use of force, coercion and threat on locally affected people. The use of incomplete and false information in such hearings is another major concern. EIA draft 2020 also reduced the time frame for public hearing from 30 days to 20 days.
- Increase of Threshold Limit for Projects
Lastly, the increasing threshold limit for environmental projects seems to not consider the implications of such arbitrary increase in these limits and its impact over the environment. The amendment of 2006 increased the threshold limit to get environmental clearances for all construction projects from 20,000 m2 to 50,000 m2 which implies that new projects with less than 50,000 m2 build-up area shall not be required to comply with the environmental clearance process. The EIA Draft 2020 has also included new provision to set up industries within 100 kms of international borders without public consultation besides subverting other Constitutional provisions which aim at decentralizing governance of ecologically diverse areas through self-governance initiatives. Overall, EIA 2020 is a real recipe for environmental disasters.
Conclusion
EIA in India is yet to overcome the loopholes that pacify its importance as a tool for realizing the actual cost of development and equalizing the same with social and environmental costs. Since India is a developing country, it needs to enhance its climate justice initiatives more than any other developed country. Only through, legislative refinement and perhaps, judicial activism, is it possible to walk the talk of environmental conservation, take steps combat climate and social inequality while delivering on climate justice to those who need it the most.
[1] The Emergence of Environmental Impact Assessment in India available at https://www.cag.org.in/blogs/emergence-environmental-impact-assessment-india (last visited on June 21, 2024)
[2] Supra
[3] Professor Karl William Kapp was a professor of evolutionary and industrial economics at the City University of New York and later, the University of Basel. Professor Karl spend a year as a Fullbright Research Professor at the Gokhale Institute of Politics and Economics in Pune from 1957 to 1958. He deeply studied the impacts of the river valley projects in India which were the first of its kind high-impact project undertaken by India after its independence. In his paper, “River Valley Projects in India: Their Direct Effects” Professor Kapp the various factors that distinguish the outcomes and impacts of National Economic Planning of an underdeveloped country from a developed one.
[4] Karl William Kapp, “River Valley Projects in India: Their Direct Effects” 8 Journal of Economic Development and Cultural Change 24-47 1959
[5] Rohan D’Souza et al, “Re-evaluating Multi-Purpose River Valley Projects: A Case Study of Hirakund, Ukai and IGNP” 33 Economic and Political Weekly 297-302 1998
[6] Wong, Evelyn, “Damning the Dams”: A Study of Cost Benefit Analysis in Large Dams Through the Lens of India’s Sardar Sarovar Project” Scrippes Senior Thesis Paper 169 2013
[7] Supra
[8] Rohan D’Souza et al, “Re-evaluating Multi-Purpose River Valley Projects: A Case Study of Hirakund, Ukai and IGNP” 33 Economic and Political Weekly 297-302 1998
[9] Prakash Kashwan is an Associate Professor of Environmental Studies at Brandeis University. He works majorly in the fields of environmental and climate justice, climate governance and international affairs.
[10] Manju Menon et al, “Environmental Regulation in India: Moving ‘Forward’ in the Old Direction” 50 Economic and Political Weekly 20-23 2015
[11] Supra
[12] Terms of Reference (TOR) is one of the most important documents produced by an authority that conducts the study of the EIA. The document is made during the second stage of the EIA process which is known as Scoping. TOR highlights various important details including the description and scope for the project, responsible and concerned agencies in the developmental project, the description of the environmental conditions of the proposed project area, details of stakeholders who shall be benefitted and harmed by the development project and recommended migration strategies, among other things.
[13] Is Sustainable Mining Possible, available at https://cdn.cseindia.org/userfiles/Knowledge%20Conclave_Srestha.pdf (last visited on 22 June 2024)
[14] Supra
[15] Supra
[16] Rohini Chaturvedi, “Environmental Hearings: Participatory Forums or a Mere Procedure” 39 Economic and Political Weekly 4616-4619 2004
Author: Debjani Mukhopadhyay
Juris Centre 