MANJU MENON AND KANCHI KOHLI COMMENT ON THE ENVIRONMENT MINISTRY’S NEW NOTIFICATION
ENVIRONMENTAL JUSTICE

Violating units to be put through a simplified EC process, no public hearings, and EIAs (Environmental Impact Assessment) only to determine conditions of clearance.

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On March 14, 2017, the Environment Ministry issued a notification providing a chance to all projects operating without Environmental Clearances (EC) to apply for ECs. Basically, the government has offered a scheme to turn illegal projects into legal units just as tax defaulters are offered a one-time reprieve. However, this notification will have any effect only if violators take up this offer.

Last year in May, the Ministry had issued a draft notification, which proposed that projects/activities that have violated the EIA notification be allowed to continue their activities by agreeing to an Environment Supplemental Plan (ESP). After having received criticism for this draft (see submission by CPR-Namati EJ program, policy brief by Shibani Ghosh of CPR, and Ritwick Dutta’s article in the Deccan Herald), the Ministry has now issued a revised final notification. In this version, the government has put in place a process by which the Expert Appraisal Committee at the Central level will determine the conditions for their continued operations. The Ministry has so far not put out any list of violating projects that could apply under this scheme.

Projects that could benefit from this scheme that invites them to apply for EC within six months may have grabbed land illegally, by coercion or deceit, set up their units and operated without any environmental regulations or social safeguards in place. Past cases and studies on illegal operations by projects have shown that those who flout environmental norms are the ones with deep pockets and close ties to those in power. The lack of effective monitoring by regulatory agencies such as the Pollution Control Boards and the regional offices of the Environment Ministry has caused these violations to take place with impunity. Project violations continue unchecked for years, and despite complaints from neighbourhoods, panchayats and local authorities.

The CPR-Namati EJ Program sought information regarding the process and materials that were being considered by the Ministry to finalise this notification. An RTI application was filed on 31.10.2016 with the Ministry’s Public Information Officer (PIO) seeking details of the discussions, revision and finalisation of draft notification S.O. 1705(E), dated 10.05.2016, regarding the use of Environmental Supplemental Plan. However, the Ministry ignored the application and no information was provided. The first appeal was filed on 16.01.2017. This appeal, too, was completely disregarded. Now the Ministry has gone ahead and issued the new notification S.O. 804(E) on 14.03.2017. Yet again, the Ministry is in violation of the judgement of the Central Information Commission in CIC/SA/A/2016/000209, ordering the Ministry to provide information regarding the process of finalisation of policies in the interest of the public. This notification, which deals with the important issue of non-compliance by projects and what actions are to be taken in this regard, is of significant relevance to the lives of many people suffering the impacts of these illegal projects, and affects the environment as well. By denying access to information regarding the process by which this notification was finalised, the government has denied citizens and experts the opportunity to participate in such decision-making.

Thus, this notification shows the government’s support for industrial and corporate corruption and illegality despite all the talk about rooting out corruption.

Main issues with the Notification:

Besides the issue of regularising projects that have violated laws and that operate without environmental safeguards, the process of regularisation laid out in the notification shows how governments favour these projects. The process shields them from public consultation procedures and denies a hearing to those who have suffered public harms on account of these violating units.

Notification: The cases of violating units will be brought to the Expert Appraisal Committee (EAC) at the central level (irrespective of whether the project is Category A or B). The EAC will check if the project violates any legal siting norms (like forest areas and CRZ – Coastal Regulation Zone) or if the expansion can run sustainably with compliance of environmental conditions and safeguards. If the EAC finds these two aspects to be negative, then they can recommend closure.
Comment: This principle goes against the rule of law because violating units are given a chance for a back door entry. At this stage the EAC does not have enough information about the project expansion to decide whether it can run sustainably or if the siting is without ecological and social impacts as it has no studies or information related to impacts to go by. Such information will only be provided after the decision on the project is taken by the EAC. Also, it is highly unlikely that projects that are up and running will be closed down under this process. In fact, it is because the government does not want to close illegal projects that this scheme is being provided.

Notification: If the EAC decides that the project can be allowed to continue, then the project needs to undertake an Environmental Impact Assessment (EIA) based on a Terms of Reference and Environment Management Plan (EMP), and conduct an assessment of ecological damage; prepare a remediation plan; and a natural and community resource augumentation plan as an independent chapter of the EIA report. This is to be done by a National Accreditation Board for Education and Training (NABET)–Quality Council of India (QCI) certified consultant and a lab authorized by the Council of Scientific and Industrial Research (CSIR).
Comment: As per the process set up in the Notification, this EIA and EMP related steps will not have any influence on the decision of the project as the decision to legalise the project would be taken by the EAC before the EIA is drafted, as mentioned in the previous point. In this Notification, the EIA is only to determine mitigation and compensatory measures. There is no scope of a public hearing either after the EIA report is drafted as is the usual norm in the process of grant of environment clearance. So the government is offering a ‘simplified’ EIA process to the violator.

Notification: The EAC has to determine that these plans take into account the damage to the environment and the economic benefits gained by violating the law. This is to be done by adding conditions in the Environment Clearance (EC) letter issued to the project.
Comment: This is a form of regularising the violation as the shortened EIA process comes after the decision to regularise the project and the EIA’s only function is to provide knowledge about what kinds of conditions and safeguards need to be added to the project’s EC letter. In effect, thiw would only offset the damage caused by the violation as opposed to putting a stop to it. Going by the track record of compliance to conditions, these new sets of conditions may also end up being only on paper. Even though there is a mention that the natural and community resource augmentation plan will be prepared, there is no process in this to speak to affected people and find out what impacts they have faced, which need remedies (please see recent report on effectiveness of environment regulation).

Notification: The violator has to submit a bank guarantee to the State Pollution Control Board (SPCB). The amount should be equal to the amount of the cost of the various plans (management, remediation and augmentation). The costing will be determined by the EAC. The Bank guarantee should be deposited before the EC is granted and returned after the successful implementation of the plans.
Comment: The government cannot singly determine what ‘successful implementation’ is. The Vapi case is a good example, where even though pollution on the ground has not reduced, and the Vapi Action Plan has not been fully implemented, the government has removed its ‘critically polluted’ tag, allowing for more projects to be set up there. There is no mechanism here which indicates how the SPCB and EAC will coordinate to supervise this.

Notification: The SPCB will not grant Consent to Operate or occupancy to these violating projects until the EC process is completed.
Comment: The notification says that once the violating project is identified, the state/SPCB will take action under Section 19 of the Environment (Protection) Act. This section bars the courts from taking notice of the violation until it is brought to them by the central government or a designated authority or by any person (who has given a 60 day notice to the government or designated authority).

This one-time amnesty through the latest notification has been offered by the government for units that have violated the EIA notification and set up operations without ECs until the date of this notification. Units have to apply for ECs within six months from the date of this notification. The notification does not state what will be done to violating units that do not apply for EC within this period. It also does not state if this is only a one-time amnesty or whether there will be more such opportunities and also about what will be done with units that violate EIA norms after this notification date. Finally, there are several other environmental norms that are violated as much as the EIA notification. Will this be the treatment for those cases too?