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What do recent changes to the environmental clearance process mean for us?

CommunitiesAndLegalAction_KanchiKohliWhile many statutes are brought into existence through legislative processes, some, such as notifications, come about through executive action that does not require legislative approval. Notifications are designed to issued and later modified and clarified through executive action alone, with public input or without. One significant notification lays out the procedure for what is popularly known as “environment clearance”. This is the Environment Impact Assessment Notification, 2006 (“the EIA notification”), which has for long been in the eye of storm in the discussions around “balancing” environment and development.

Soon after the new government took office in May 2014, it announced a series of changes to the environment and forest regulations, some of which had already been rolled out during the previous regime. Since June 2014, there have been a quick series of draft amendments, internal ministerial notes, circulars, and office memoranda bringing in important changes to the EIA notification.

Legal basis of the EIA notification

The government of India first issued this notification in 1994, exercising its power under Sections 3(1) and 3(2)(v) of The Environment (Protection) Act, 1986 (“EPA”). The latter provision gives powers to the central government to place “restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards.”

EIAnotification_fourstages_environmentalimpactassessment

Previously in this series of posts on Communities and Legal Action, I have dealt with public hearings and the steps that an affected community can take once an approval is granted for a project. Now, let us take a close look at the changes that have been made to the EIA notification and those that have been proposed. These will have a bearing on the applicability of this important piece of the regulatory structure.

They include the delegation of powers to state governments to make decisions, the creation of exceptions for project approvals, procedural relaxations, and adding new projects to the list of projects that require approval. All the circulars and changes described in this post are available here.

Projects that requiring environmental clearance – additions and clarifications

A public hearing underway for integrated facilities at the Kandla Port. Photo credit: Bharat Patel
A public hearing underway for integrated facilities at the Kandla Port. Photo credit: Bharat Patel

Some projects, such as coal tar projects, will now need to go through an “environment clearance” process, from which they had previously been exempt. Irrigation projects with a command area between 2000 and 10000 hectares will now need approval from the State Environment Impact Assessment Agency (“SEIAA”) and all irrigation projects above 10000 hectares will require approval from the Ministry of Environment, Forests, and Climate Change (“MoEFCC”), that is under Category A. Clearly, this means that all irrigation projects of capacity up to 2000 hectares of culturable command area are now exempt from an environmental clearance process, including any public consultation. River valley projects between 25 and 50 MW and with a command are between 2000 and 10000 hectares will now be appraised by the MoEFCC if the project falls in more then two states. It would have otherwise been the SEIAA’s responsibility.

Exemptions from any environmental clearance process or public consultation

A significant area of focus of the changes has been to exempt some types of projects from any environmental clearance and this has implications on sectors such as irrigation projects and coal mining projects. Coal mining projects that require a one-time capacity expansion with the production capacity exceeding 16 MTPA have for example been exempted from any public consultation (Office Memorandum dated July 28, 2014). After  clarification (Office Memorandum dated September 2, 2014) was issued, this exemption will now apply to coal mining projects with production capacity exceeding 20 MTPA, provided the ceiling of the expansion is towards mining for an additional production up to 6 MTPA and if the transportation of coal proposed is by means of a conveyor or rails. However in both these instances, the Expert Appraisal Committee has to apply “due diligence” and it needs to be subject to “satisfactory compliance with environmental clearance(s) issued in the past as judged by the EAC.”

Restricting powers for appraisal at scoping stage

InfrastructureLawAn Office Memorandum dated October 7, 2014 restricting the powers of appraisal at the scoping stage is also crucial. It indicates that the Expert Appraisal Committees (“EACs”) while reviewing the applications for environment clearance should only ask comprehensive sets of questions and studies at the time of issuing Terms of Reference for an EIA report to the project authority. The EACs review all documents related to the project including impact assessment submissions, videos recorded during the public consultation phase, and project reports and have to either recommend or reject approvals. They can ask project authorities to clarify issues, respond to queries raised at the public hearings, as well as carry out additional assessments.

With this clarification however, additional studies, especially “fresh issues”, need to be added at the appraisal stage only if the EAC can clearly justify that these are  inevitable and why they need to added at a later stage. These have to be stated unambiguously in the minutes. The purpose of this to address the complaints of project authorities that too many questions at the appraisal stage are causing delays. The very purpose of public scrutiny however, is to seek essential feedback to and address impact issues. Curtailing the powers of appraisal committees goes completely against the spirit of appraisal, which requires the EACs to do a “detailed scrutiny”.

Delegation to State Environment Impact Assessment Authority

More projects have come within the jurisdiction of the SEIAA, that is, approvals at the state level. These include all biomass-based thermal power projects and synthetic organic chemicals industries if located outside a notified industrial area or estate, with specific caveats.

The most important manner which this delegation has happened however, is by limiting the applicability of the General Condition of the EIA notification. With this change, only those Category B projects (to be approved at state level ordinarily) located within five kilometres of a national park, sanctuary, critically polluted area, ecologically sensitive area or an inter-state boundary would need to approved by MoEFCC. Prior to the amendment, this was 10 kilometres. So now, if a thermal power plant is coming up within 8 kilometres of a national park, it will only need to be appraised at the state level.

Other changes proposed to the EIA notification – linear projects, non-irrigation projects, and building and construction

Many more changes are proposed to the EIA notification but in these cases, public opinion has been sought on whether such amendments should be introduced. On September 30, 2014, a draft notification was issued proposing some critical changes, including doing away with public consultations for “all linear projects such as Highways, pipelines, etc., in border States.” It is not clear whether this includes inter-state borders.InfrastructureLaw

The draft notification also proposed the addition of non-irrigation projects such as drinking water supply projects to the purview of the EIA notification. These projects do not require environment clearance at this point of time. Projects less than 5000 hectares of submergence area have been proposed as Category B projects. Projects equal to and greater than 5000 hectares submergence area would need to be considered as Category A under the July 25, 2014 notification.

Under a September 11, 2014 draft notification, building and construction projects which cover an area greater than or equal to 20000 square metres and having a built-up area greater than1, 50,000 square metres of built-up area need approval from the SEIAA. The same goes for townships and area development projects covering an area greater than or equal to 50 hectares and or having a built-up area of greater than or equal to 1,50,000 square metres. No other building or township projects need to get environment clearance.

Catching up with the notification

The EIA notification now has to be read in line with all the clarifications and amendments, which are routinely put forward MoEFCC. It is far from easy to read the notification along with all the “ifs” and “buts” which play up when it needs to be ascertained whether an act is legal under the notification. Unraveling all of it can leave many people gasping. For affected communities, this legalese still remains distant, even as they engage with this process, counting on the hooks within the law and the support groups standing besides them and pointing their attention to it.

Kanchi Kohli (kanchikohli@gmail.com) is an independent researcher and writer.

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Human Rights

Reacting to an environmental clearance – four essential steps

CommunitiesAndLegalAction_KanchiKohliOne winter morning, news arrived that environmental clearance had been granted for a steel plant that had been contested for nine and half years. After the change of guard at the Ministry of Environment and Forests (“MoEF”) ahead of the general elections, newswires had been abuzz that India’s largest foreign direct investment would finally come in. Now, the grinding sounds of iron being converted to steel would soon replace thriving agricultural and fishing economies in ecologically fragile coastal Odisha.

Questions fluttered to all quarters. The movement resisting the plant had no access to the formal documents based on which the Minister had granted approvals and support groups began to put their minds to the next step.

Being up to speed on where and how fast files move within a regulatory agency is a test that community groups and interested individuals face all the time. Public disclosure is subject to the technical acumen of website managers, regular tracking through Right to Information applications, or simply through tip-offs from informal sources. But for all the actors who feel the impact of the grant of an environment clearance or who seek to legally challenge it in courts, the clock starts ticking once the approval has been granted.

Veerappa_Moily
Several projects, including Posco’s USD 12 billion steel plant in Orissa, received environmental clearances during Veerappa Moily’s brief stint as the Union Minister for Environment and Forests.

What does this permission really mean? Environment clearance is the approval that a wide range of industries, mines, dams, or infrastructure projects receive after a process listed out under the Environment Impact Assessment Notification, 2006 (“EIA notification”) is completed. The MoEF is the granting authority for a set of Category A projects and for Category B projects, it is the State Environment Impact Assessment Authorities (“SEIAAs”). No construction activity can be initiated unless an environment clearance letter has been procured.

More often than not, social movements and civil society groups who have either been objecting to the grant of this permission or would like to do so at the time of the clearance, have to put together a lot of paperwork and information, if they are to stand any chance in a court of law. First of all, they have to access the clearance letter itself. Case law now requires that the environmental clearance is not just made available to the relevant panchayat and relevant information published in two newspapers, project authorities now need to publish the full clearance letter in newspapers.

Once there is access to the letter, it needs to be backed up with hard evidence and analysis to help prepare the legal grounds of challenge. Who faltered and how? Why would anyone be aggrieved? Did the regulatory agencies play the part they were mandated to? Across the country, there are a range of experiences of how people go about gathering the necessary evidence or file in the required documents. The process starts from the time they lay their hands on the Environment Impact Assessment document to finding out what transpired at public hearings and how expert bodies reviewed baseline data presented in EIAs and independent critiques of EIA documents. The journey of many project clearances in the country is often a closely observed narrative. Unfortunately, they do not always stand up to robust judicial scrutiny.

Challenging an environmental clearance in a court or a tribunal requires covering a few basic grounds. The peculiarities of any specific case aside, the following are essential to understand whether ‘there is a case’ for aggrieved persons to challenge an environmental clearance.

Chronology of facts

InfrastructureLawThe first is the bare chronology of facts from the time the project authority submits the application form (Form 1 or Form 1 A) under the EIA notification. Trace the trajectory of the environment clearance paperwork and events. When were the Terms of Reference (“ToR”) for the EIA report approved and granted by MoEF or SEIAA? Did it match the draft ToR provided by the project proponent or was a model ToR used? When was the public hearing held? Finally, how did the file move within the regulatory agency, especially with the Expert Appraisal Committees (“EACs”) reviewing the project?

One critical component of this chronology is the file notings and notesheets of the MoEF or the SEIAA indicating the process of decision-making. Sometimes, the remarks made by a minister or a higher-level official approving or rejecting the project at any given stage can prove to be an important piece of evidence. Increasingly with inter-ministerial differences, officials and ministers have recorded their dissenting notes, to approve or reject a project’s environmental clearance.

Clear set of critiques of three documents

It is also important to prepare a clear set of critiques and analysis of three crucial documents that need to be reviewed, by themselves and in comparison to each other. They are (a) the application form (Form I and IA), (b) the ToR for the EIA, and (c) the EIA itself. For instance, is the baseline data in the application form correct and do the ToR do justice to the scope of the project? Does the EIA conform to both the application form and the ToR at the very least? A full critique of the EIA itself has stood many legal challenges in good stead. For instance, whether the EIA is a copy-paste of another and whether it hides or suppresses facts is an important basis to argue about the lack of rigour in the impact assessment.

Scrutiny of public hearings

PoscoPublic hearings and other related submissions also require complete scrutiny. This third phase of an environment clearance, where the law requires a free, fair, and transparent process, usually leaves much to be desired. The EIA notification mandates that a public hearing of the project be carried out in such a way that it ensures maximum amount of participation. To start with, some key questions that can be asked include whether or not the minutes of the public hearing reflect the actual objections that arose during the public hearing. For this, the law mandates a proper video recording of the public hearing. In many important decisions, the judicial body has asked for fresh public hearings if procedural lacunae are proved.

In an ideal scenario, it would be critical to record any objection to faulty minutes or process around the time the public hearing is held and bring it to the notice of the regulatory authority and any expert committee. It may not guarantee immediate redressal, but it would push the Expert Appraisal Committee (“EAC”) to acknowledge these issues and ask the project authority to respond to them.

Track EAC proceedings

The fourth set of proceedings to track is what transpired in the meetings of the Expert Appraisal Committees (“EAC”), both at the Union and the state when they appraised the application, the ToR, the EIA, the public hearing objections, and any other written submissions.  At present there are nine thematic EACs for Category A projects and each SEIAA constitutes a separate State Level EAC (“SEAC”) that appraises all documents, ascertains their impact, and takes a decision on whether or not to approve a project. If a project is approved, the EAC recommendations contain a list of conditions that the project authorities have to comply with during construction or operation of the project.  There is clear case law emerging from the Southern Zone bench of the National Green Tribunal that EACs need to respond to all objections raised at the public hearing and record reasons for agreeing or disagreeing with them. How the EAC conducted itself and what they based their decision on, are important pieces of evidence in questioning the application of mind of this expert body, when a matter lands up in litigation.

A farmer works in a betel leaf garden.
A farmer works in a betel leaf garden.

When the courts or the NGT resume work each morning, many of the words referred to here, including ‘appraisal’, ‘public’, ‘impact’, and ‘scrutiny’, will be stated and redefined by judicial interpretations. These interpretations will establish an entirely new jurisprudence around EIAs and the notification that guides it. The fate of the farmers of small plots of paan kheti (beetle vine farming), which the Union Minister for Environment and Forests sought to seal on a winter morning, now hangs in the balance before the Delhi bench of the NGT.

Kanchi Kohli (kanchikohli@gmail.com) is an independent researcher and writer.

Categories
Human Rights

Environmental Impact Assessment: The problem with public hearings

CommunitiesAndLegalAction_KanchiKohliA stage with five chairs was set up some distance from an area where the crowd could assemble. A bamboo barricade demarcated the ‘official’ and ‘public’ spaces. Anyone from this crowd could address the five dignitaries who would preside over the events of the next few hours using a microphone set up near the barricade on the side of the public. Police functionaries surrounded this tented arrangement and a clerk was parked at an adjoining table on the official side. People could approach him through a fenced route and hand over their documents and other submissions.

Soon, men of stature filled the chairs on the stage. The member of legislative assembly (“MLA”) of the region and the District Magistrate (“DM”) sat next to each other. Two men, who seemed to be ones with a sense of purpose, joined them. One of them wore a well-creased shirt and another carried a bulky set of reports and maps. These two also looked the most stressed. Finally, there was a representative from the state pollution control board, who wore a very visible “been there, done that” expression.

EnvLaw-GIFAfter the DM opened the proceedings, the MLA took the mike. He declared that the proposed hydropower project was not just a progressive step for the economic development of the people of his constituency; it also allowed them to participate in a national drive for  energy generation. He declared in no uncertain terms that he is an ally of the proponent of the project, who would be explaining their project design to all present at this public hearing.

Soon after, two trucks arrived, filled with people who walked straight to the clerk. With thumb impressions and signatures, they not only marked their presence but also recorded their approval for a large dam and powerhouse to be built around their homes, fields, and forests. This happened even before the man in the creased shirt had initiated an explanation of how much land the project would acquire, how much forest would be cut, and whether the homes and livelihoods of people will be displaced.

A public hearing underway for integrated facilities at the Kandla Port. Photo credit: Bharat Patel
A public hearing underway for integrated facilities at the Kandla Port. Photo credit: Bharat Patel

But eventually, their presentation did get underway. It was followed by objections and suggestions from around fifty people. Some raised issues of displacement, others said they did receive documents in time, and many others were concerned about the cultural pollution that would be caused by an influx of labour. After about four hours, the DM called the meeting to a close, without reading out the minutes of what had transpired, something he was required to do.

This story is familiar to anyone who has attended a public hearing under the Environment Impact Assessment Notification, 2006 (“the EIA notification”). Public hearings such as this one are a mandatory third step of the procedure for dams, mines, industries, and ports to receive environment clearance. It is part of a larger process of public consultation , which includes both written submissions and such face-to-face deliberation with the authorities, project proponents, and consultants.

Violations of procedure

The public hearing I have described was ridden with violations of the legal procedure required by Appendix IV of the EIA notification. Community-based organisations, legal researchers, lawyers, and activists have been pointing out these concerns ever since this process was first introduced by an amendment to the 1994 EIA notification in 1997. Today, public hearings are to be conducted “in a systematic, time bound and transparent manner ensuring widest possible public participation” (Section 1 of Appendix IV). Barricading the public hearing space, the MLA making opening remarks in favour of the project, and the presence of police are all intimidating to say the least and clearly deter people from openly speaking their mind. There are also, as I have stated above, clear violations of the legal procedure.

The MLA sitting on the dais, for instance, violates the requirement in Section 4 of Appendix IV that the panel of the public hearing will comprise only of the DM or their representative along with someone from the Pollution Control Board. The MLA’s presence therefore, is reason enough for the illegality of the public hearing.

Another problem with the events described above is that people indicated their consent for the project even before the project authorities had presented a description of the project and a summary of the EIA report. It was as if none of the people who arrived in the trucks were even interested in understanding the impact of the project. It will not surprise those who know how public hearings are conducted across the country that they had been possibly “brought in” to record their attendance in favour of the project. The DM allowed people to sign their consent and leave without really engaging with the project proponents, consultants, or government representatives, which is what the spirit of the public hearing and the procedure laid out in Appendix IV require.

Opportunity to review the draft EIA report

A public hearing underway for the Nalway sponge iron plant. Photo credit: Kanchi Kohli
A public hearing underway for the Nalway sponge iron plant. Photo credit: Kanchi Kohli

Among the fifty people who opposed the project, one had highlighted the problem that the project documents were not available the public hearing. The EIA notification (Section 2.2 of Appendix IV) requires that both hard and soft copies of the draft EIA report have to be available at designated locations – the offices of the DM, the Zila Parishad or the Municipal Corporation, the District Industries Office, and the regional office of the Ministry of Environment and Forests – thirty days before the public hearing takes place. A summary of the EIA has to be made available, both in English and in the local language of the place where the project is being set up.

This brings us to a fundamental flaw in the design of the public hearing process after 2006 when the EIA notification was amended. During this one-time event, people only have access to a draft EIA report. In the minds of regulators and project proponents therefore, the responses from people are to be used merely to finalise the EIA document. The only relevant comments are those that can be filtered into the final document, or are technical enough for the expert committee to take on board. Based on that they can ask project authorities for additional studies or clarifications.

Restricting the opposition to projects

By restricting itself to ascertaining the “concerns of locally affected people” and those with a “plausible stake in the environmental aspects of the project” (Section III (ii) of the EIA notification), the presiding panel restricts the speaking of anyone who is not local. NGOs, scientists, and activists are often told to make written submissions only. People have of course found creative ways to deal with this problem, with the local community backing them as representatives on technical and legal aspects. Often however, it is up to the DM whether to allow such an intervention or not.

Often, concerns that go beyond being purely “environmental”, go out of the window. When the project comes for appraisal to the MoEF, the reasons that the Minster may record for granting the approval would include the strategic, political, and energy needs of the country. The law however, lands up restricting people’s voices on these very issues.

Public hearings remain one of the most talked about spaces for law in discussions on environment and development. Despite their limitations and despite often being sham events, public hearings make the project authority visible to the community affected by the project. There have been demands that there be more than one hearing, one before the EIA is finalised, and one after. Policy researchers and activists have also demanded that the public hearings be given more teeth. Today, even complete opposition to a project at a public hearing is not decisive. That power lies, with a bunch of technical experts for their recommendation and finally with the minister himself.

Kanchi Kohli (kanchikohli@gmail.com) is an independent researcher and writer.