The Ministry of Environment, Forest and Climate Change had sought comments from the public on the Draft EIA Notification 2020. TLRA submitted this white paper to the MoEFCC with specific focus upon ‘Public Hearings and Consultations’.
A B Kadam
Manuj Prasad Borkar
To be heard before getting impacted is put forth by the concept of Environment Impact Assessment in India. Natural resources being contested are not a novel phenomenon to the modernized world. Instances are umpteen where modernisation and expansion thereof has tried to interfere with nature, and the impact upon the latter has been irreversible. However at the same time, concerns for environmental preservation, however huge, cannot halt the process of modernization today. This is where the concept of sustainable development kicks in, which has ultimately invigorated the State to introduce the Environment Impact Assessment Notifications as published by the Ministry of Environment and Forest from the year 1995 to the recently published draft in March 2020. Public hearing is one of the indispensable features of the concept of Environment Impact Assessment in India [EIA]. The significance of the public hearing is gigantic, given the fact that it encourages the stakeholders to put across their views/objections with regard to proposed project and its operation as well as the impact of the project on the environment and their lives. Public hearing would be successful, provided the outcome of such public consultation is effectively incorporated in the final report. It is not a mere assessment of environmental concerns, but a weighment of enviro-social costs against modernization.
AT THE HEART OF SUSTAINABLE CONCERN:
The United Nations Conference on Environment and Development, having met at Rio de Janeiro from 03 to 14 June 1992, witnessed the signing of the ‘Rio Declaration’ by most of the countries around the globe including India. Principle 10 of this particular convention specifically highlights the importance of the participation of public in the issues and matters related to the environment. Principle 10 briefly states, that environmental issues are best handled with participation of all concerned citizens, at all relevant level. At the national level, each individual shall have appropriate access to the information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in the decision-making process.
From past few decades public participation in EIA is considered to be one of the most vital facets of the EIA with respect to the decision making in most of the countries. Under draft EIA notification 2020 the term “Public Consultation” is defined under Clause 3 sub-clause (46) which means “the process by which the concerns of the local affected persons and others, who have plausible stake in the environmental impact of the project, are ascertained with a view to appropriately take into account all such material concerns while designing the projects”. The purpose of public participation is to ensure maximum public participation in the process of the decision making relating to the environmental issues which are likely to affect the lives of people living in or around the vicinity of the proposed project.
The perceived import of the EIA was to ensure sustainable development through the evaluation of potential impacts arising from a major activity. The need of public participation in EIA process is probably the most widely recognized for the involvement of public in the process of EIA provides a platform as well as an opportunity to the local people likely to be affected by the proposed project and enable them to defend the social, economical and environmental impacts of the same. The Hon’ble Supreme Court has time and again upheld the importance of the public hearing in matters relating to environmental issues. It has been held that under EIA notification, public hearing and public consultation is considered to be one of the most essential and integral part of granting any environmental clearance certificate to any proposed project. Similarly, it has also been held that conducting public hearing is not only one of the essential features to be followed before granting and clearance certificate to any proposed project, but also conducting an effective public hearing is a must. In fact it is the project proponent who is required to approach the respective pollution control board so as to schedule a public hearing by the Regulatory Body under the Notification, without which the question of an environmental clearance would not arise. The National Green Tribunal dealt with a matter where a public hearing was halted due to some commotion; however a subsequent hearing was undertaken immediately without any prior notice to the people [i]as in which the clearance was granted to the proponent.
The NGT in the said matter, held that if a public hearing is conducted with any such irregularities then in such a scenario the previous hearing shall be considered as void and the clearance granted based on such a hearing shall be a nullity. Interestingly, draft 2020 has proposed a reduction in the number of days for public to place their opinions on the report from 30 days to 20 days, being oblivious that the Hon’ble Gujarat High Court has categorically held that the date of first public hearing in connection with any project requiring environmental clearance certificate has to be at least after 30 days from the date of publication of notice in the newspaper as per law. The copies of all necessary documents should be made available to all local places mentioned in the notification at least 30 days prior to the date of public hearing. The said position of law seems to have missed the attention of the framers of the subject notification.
DEAF EARS TO EMPTY FORMALITIES IN LAW:
The EIA notification of 2006 had divided the projects in two categories i.e. Category A and Category B. Under the same, it was mandatory that all projects should withstand the process of public consultation. However there were certain exceptions which were provided to certain projects. For instance, there were only nine categories of projects which were exempted for example: modernisation of irrigation projects, expansion of roads and highways which did not involve any further acquisition of land, all projects or activities concerning national defence and security. However since the past few years, the project exemption list has been supplemented a number of times vide issuance of circulars one after the other. If we have a look at the draft EIA notification 2020 – clause (14) sub clause (2), it provides the list new list of projects which are exempted from the process of public consultation, which can be presently subjected to debates.
The effectiveness of a public hearing depends on the satisfaction of four tests. First, the people attending the meeting should have access to complete and accurate information regarding the proposed project. Second, the means and method available at their disposal should be sufficient enough to raise their concerns. Third, the comments and suggestions of the people should be recorded in a proper manner. Finally, the outcome of the meeting should have some impact on the decision. However it appears that unproductivity is perpetrated vide the draft 2020 as the concept of public hearing has become just a mere empty formality due to the following reasons: Firstly, the public consultation structure developed under the notification does not provide for adequate measures to ensure whether the locals are consulted effectively. There is no incorporation of the concept known as ‘quorum’ for such hearings given its absent mention in the notification as to minimum number of members required to conduct the hearing. Moreover, the panel only consists of government officials alone, without any room for representation on behalf of the localites. Secondly, the exemption provided to certain categories of projects from the process of public hearing are projects which involve a significant impact on the environment; moreover there is no provision or power provided in the notification to any authority, wherein the authority concerned could press for public consultation on forming an opinion for the same despite exemption of that project from assessment. Third, the notice procedure laid down in the notification is often an arithmetic formality. The notification requires that the EIA report should be published in the English as well in the local/official language in the newspapers, but the bottleneck strikes when the proposed project is to be carried out in remote and rustic areas where formal education has been out of reach, much less the newspapers.
As egregious as the draft 2020 could be, Appendix –I (procedure of public consultation) clause 3.1 states that “The Member-Secretary of the concerned SPCB or UTPCC shall finalize the date, time and exact venue for the conduct of public hearing within ten days of the date of receipt of application with the consent of officer presiding over the public hearing. He shall advertise the same in one major National Daily and one Regional vernacular Daily or Official State Language in another five days from the date of consent of presiding officer. A minimum notice period of twenty days shall be provided to the public for furnishing their responses.” The draft (Appendix Clause – 3.1) reduces the notice period from 30 days (as per the 2006 notification) to 20 days. The person hardly has 20 days to put forth all his concerns and issues relating to an elephantine project. Furthermore, Clause 5.7 of the draft 2020 which states that all projects concerning national defence and security or involving other strategic consideration shall be exempted from the ambit of public consultation. No information relating to such projects shall be placed in public domain, and wisely so. However, dearth of any definition of “Strategic Considerations” has kept the environment at the mercy of executive interpretations. It is the one and only stage in the entire process wherein people who directly or indirectly affected by the proposed project can raise their concerns. History is replete with instances where activists have embattled themselves for saving the green against indiscriminate modernization. It is unfortunate that the draft 2020 (vide Clause 22) has excluded the locus of social activists or NGOs in bringing the violations to the fore as against the 2006 Notification.
The present notification has presently invited objections and suggestions from the public. Given the plight of public consultation and hearings in the draft 2020, the ministry is expected to be flush with objections majorly focusing on factors none other than ‘pubic hearings’. Administrative set-up behind the EIA requires anticipating the impact with socio-environmental perspectives against the project, and thereby bringing it to the fore for consideration. This mechanism is none other than the very second principle of natural justice. Be that as it may, it appears that legislative providence has not been too harsh with this principle when the concept of ‘Social Impact Assessment’ remains intact while acquiring lands for public purposes such as dams, power plants, canals, etc. under the law of land acquisition in India, where the concerned acquisition cannot proceed without a social impact assessment study within a period of six months from its commencement.
The primary purpose of something such as this is to ensure that the public purpose shall outweigh the social costs and adverse social impacts. Although assessment of social impact cannot be equated with that of an environmental impact, the projects which are exempted from environmental assessment will now, in all cases, will have to stand the scrutiny of social assessment. There have been numerous instances where the judiciary has been approached so as to contest environmental clearances on grounds of ineffective/unfair public hearings. However these are matters where on one hand the High Courts have their limitations in extraordinary writ jurisdiction and on the other hand the jurisdiction of the National Green Tribunals has been limited to only hear cases involving direct violations of specific statutory obligations of the scheduled enactments to the Act. It is not the case that challenges cannot be leveled against ineffective public hearings, but the main concern is the difficulty to visualize desirable reliefs amidst the present mechanism so constrained. In such circumstances, it is expected of the concerned ministry to provide robust provisions ensuring quasi-judicial powers with a suitable body to hear challenges in respect of public hearings rather than merely having penal provisions alone against project proponents for cases of violations at a later stage.
A B Kadam is an Associate at Nargolkar & Associates, Mumbai.
Manuj Prasad Borkar is a BL.S. LL.B student at University of Mumbai.
This paper was first published on CEL-NUALS.
Photo Credits: Arun Sankar/AFP
- Ministry of Environment, Forest and Climate Change, Draft EIA Notification, 2020 (Aug 04th, 2020, 12.16 PM), http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf
- United Nations Environmental Programme, UNEP Implementing Principle 10 of Rio Declaration (04th Aug, 2020, 11.00 AM), https://www.unenvironment.org/news-and-stories/story/unep-implementing-principle-10-rio-declaration
- Id, Principle 10.
- Ministry of Environment, Forest and Climate Change, Draft EIA Notification, 2020 (Aug 04th, 2020, 12.16PM), http://environmentclearance.nic.in/writereaddata/EIAnotifications/2006_09_14_EIA.pdf
- Supra, 1
- Id, at clause 22.
- The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, [Act No. 30 of 2013].
- Section 14 r/w Section 2(m), National Green Tribunal Act, 2010, [Act No. 19 of 2010].