Guest Blog by Amruta Pradhan
The Ministry of Environment Forests and Climate Change (MoEFCC) has issued Draft Environmental Impact Assessment (EIA) Notification 2020 in March 2020. The opening paragraph of the draft notification 2020 states that the purpose of the notification is “imposing certain restrictions and prohibition” on the development projects. The purpose of amending the notification is said to “make the process more transparent and expedient”. However, as one reads through the 83 paged verbose notification and puts several pieces of the proposed amendments together, it becomes more and more clear that the purpose is in fact dilution of the EIA process, protecting the project proponents from any kind of public scrutiny, covering up for the violations and making the Environmental Clearance (EC) process more and more non-transparent, undemocratic, unjust and unaccountable.
In case of large scale hydropower and irrigation projects SANDRP has routinely witnessed severe irregularities like poor quality, dishonest EIAs with misinformation about the project, poor quality baseline data, inadequate or no impact assessment, violations on ground which go unreported to name a few. The appraisal process is most shockingly superficial. MoEF has accepted it has practically no capacity to ensure monitoring of the projects, leave aside achieving compliance.
A combination of these grim ground realities and the EC process laid out in the Draft EIA Notification 2020 will be nothing but dangerous. It will encourage violations, demean human rights of affected people, ensure fraudulent and inadequate impact assessment, contribute to even more to man-made disasters like floods & droughts; and will only benefit the historical nexus of Politicians-Bureaucrats- Engineers-Contractors- Money Lending Institutions.
Significant dilutions have been proposed in the new appraisal process at nearly every step. Rigor of the appraisal process has been diluted significantly. Purpose of this article is to discuss some of the major changes proposed and their implications.
Category ‘B2’ projects exempted from EIA studies and public consultation
The most significant change has been in respect of category ‘B’ projects. While a significant slab of threshold limits is now pushed under category ‘B2’ projects, these projects are completely exempted from the EIA and public consultation process. Further, these categories have been kept fluid. MoEF will constitute a Technical Expert Committee which will undertake categorization or re-categorization of projects on “scientific principles including any streamlining of procedures…”.
The Draft EIA Notification 2020 has eliminated the ‘screening’ process completely. As per the EIA Notification of 2006 the Category ‘B’ projects were further categorized into ‘B1’ and ‘B2’ only after being scrutinized by the State level Expert Appraisal Committee (SEAC) for determining whether or not the project or activity required EIA for its appraisal prior to the grant of EC. As per the new notification ‘B1’ and ‘B2’ categories will be defined based solely on the threshold limits.
Hydroelectric projects (HEPs) with <75 Mega Watt (MW) and >25 MW installed capacity fall in category ‘B1’ and projects with <25MW capacity fall in ‘B2’ category. For irrigation, projects with >10,000 Ha and <50,000 Ha of Culturable Command Area (CCA) now fall in ‘B1’ category and projects with >2000 Ha and <10,000 ha CCA will be ‘B2’ category.
Category ‘B2’ projects which are specified in the schedule will NOT REQUIRE EIA report and public consultation for these projects to be placed before the Appraisal Committee. Only Environmental Management Plan (EMP) Report as per the generic structure needs to be submitted along with the application for obtaining prior EC from the SEIAA/UTIAA. Further, ‘B2’ projects not specified in the schedule are completely exempted from the EIA studies and public consultation. Even their EMP reports will not be appraised. They will need prior ‘Environmental Permission’ instead of environmental clearance from the SEIAA/UTIAA.
So essentially, all the HEPs <25MW and irrigation projects of 2,000-10,000 ha CCA will not need an EIA nor a public consultation for their appraisal. And irrigation projects <2000 ha area are now completely exempted from the appraisal of any kind. In addition, applicability of the ‘general condition’ has been removed for the category ‘B2’ projects. Thus, these projects can now be proposed in dangerously close proximities of boundary of Protected Areas, Critically Polluted areas, Eco-sensitive areas, inter-State and international boundaries or within boundary of Severely Polluted Area and Eco-sensitive zone. Buffer of 10 km need not be kept from these areas.
HEPs with <75 MW and >25 MW fall in category ‘B1’. In earlier notification any category ‘B’ project was treated as category ‘A’ project if the project fulfilled ‘general condition’ i.e.—if located in whole or in part within 10 km from the boundary of Protected Areas, Critically Polluted areas, Eco-sensitive areas, inter-State and international boundaries. As per the new notification, ‘B1’ projects fulfilling the general condition will be appraised by the EAC—but with “no change in the project category”. They no more will be treated as category ‘A’ projects while obtaining a prior EC from MoEF as was prescribed in the 2006 notification. This explicit clarification does seem to imply that they will undergo less rigorous appraisal.
Category ‘A’ projects will need a prior EC from the MoEF and they will be appraised by the Expert Appraisal Committee (EAC) based on the EIA studies and public consultation.
Projects concerning national defense and security or “involving other strategic considerations” “as determined by the Central Government” will not be treated as category ‘A’ projects BUT “no information relating to such projects shall be placed in public domain”. It is clear that it is at the discretion of the Central Government to decide the “strategic considerations” so they can choose for which projects to hide information from people. Going against its own declared intention of making the EC process more transparent, this is clearly fostering non-transparency.
SANDRP experience of analyzing the EIA reports of hydropower and dam projects tabled before the EAC under 2006 EIA notification shows that projects of even upto 50MW capacity are routinely broken into projects with capacity below 25 MW each in order to escape the threshold of 50 MW for being Category ‘A’ project. They however come in the purview of EAC if they are within 10 km of PAs or eco-sensitive zones. Poor quality EIA, important aspects like impacts of blasting on local springs, landslides, muck disposal, sediment load analysis being left out of TOR, absence of consideration of climate change impacts or how projects will affect local adaptation capacity, non inclusion of impacts of a number of components like mining of materials for the project or approach road or colonies for the project, furbishing false information in front of EAC have been routine issues with the EC process.
Experience shows that assumption that hydropower projects with installed capacity less than 25 MW or irrigation projects with CCA less than 2000 ha or combination thereof along with flood control, drinking and industrial water supply components are environmentally benign is completely wrong and unscientific.
There is a strong possibility that projects proposed in Himalayan region of in Western Ghats, the projects with large installed capacities will be split on paper into multiples of 25MW and will escape environmental scrutiny of any kind. How safe is it to allow such a possibility in Himalayan region which falls under the seismic IV and V—a region highly vulnerable to high-intensity quakes, in addition to landslides, flash floods and GLOFs. Past disasters of Uttarakhand (Kedarnath), Himachal Pradesh, Jammu & Kashmir, North East India, Nepal and Pakistan have shown how damaging can the HEPs in this region be. Can we afford to turn a blind eye to them?
SANDRP has been recommending for many years that EIA of the river valley projects must also include disaster potential of the area and how the project will change that potential, both due to construction and operation of the project. This in short is a proposal to include Disaster Impact Assessment in the EIAs.
Irrigation projects of 2,000-10,000 ha CCA will also be exempted from the EIA and public consultation. Additionally, modernization of irrigation projects is also to be exempted. The Notification does not explicitly exclude increase in the dam height and proposed CCA while stating ‘modernization’. All this together means more submergence and more land acquisition. These projects can be significantly large projects that could displace hundreds or even thousands of people while acquiring land for dams and canals. It is clearly unjust that these affected people who might lose nearly everything can have no say in the entire process.
Standard ToR for scoping, specific ToR to be issued “if necessary”
Overall efforts of all the amendments regarding ToR and EIA seem aimed at weakening the role of Appraisal Committee.
According to the new notification, on acceptance of the project for the EC process; the Regulatory Authorities (MoEFCC, SEIAA/UTIAA) will issue sector wise Standard ToR “without referring to Appraisal Committee”. Appraisal Committee “may recommend” specific ToR in addition to the Standard ToR, “if found necessary” once the project is referred to it. And the Regulatory Authority seems to have a choice of not involving the Appraisal committee at all! The notification says— “In case, the Regulatory Authority does not refer the matter to the Appraisal Committee within 30 days of date of application in Form-I, sector specific Standard ToR shall be issued, online, on 30th day, by the Regulatory Authority.”
Site visit by a sub- group of Appraisal Committee if found necessary has been eliminated completely. Validity of ToR for River valley projects is five years. Even for amendment of ToR in case of change in scope of the project, the Appraisal Committee will be involved only “if necessary” who will decide this remains a mystery.
The notification actively discourages the Appraisal Committee to seek more information in order to develop comprehensive understanding of the projects. The words used in the notification are worth paying attention to— “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.”
The notification clearly states that the appraisal should happen “strictly with reference to ToR”. What if the project was never forwarded to the Appraisal Committee for specific ToR? What if EAC finds something of concern at the time of appraisal which is out of the scope of issued ToR?
Environmental Clearance is the ONLY process through which environmental concerns of the development projects are supposed to be addressed ex-ante. Utmost care should be taken that the impact prediction happens in scientific, honest, comprehensive manner so that the gravity of the possible adverse impacts becomes (reasonably) clear. Conducting a sound EIA study is the essence of the EC process and comprehensive ToR are foundational for this.
Thus, it is a very real possibility that controversial projects with high degree of potential adverse impacts which may trigger opposition to that project—like Ken-Betwa inter linking project—will not be forwarded to the Appraisal Committee at all and thus possibility of issuing a comprehensive project specific ToR will be eliminated altogether.
Will a generic EIA conducted with standard ToR do any justice to the project having large scale potential for ecological and social damage? Such impact assessment will lead to fragmented impact assessment. Complex higher order impacts will not be assessed or rather conveniently ignored.
Human rights violation: Regulatory Authority can cancel the public hearing
In case of River valley projects the affected area is spread over and affected population is large. In such projects public hearing plays a crucial role. It is the only opportunity for the affected people to voice know about the project and its impacts, management plan, give their opinion and being heard.
The new notification has however opened up a possibility that public hearing may not happen at all.
The said clause which is fairly unambiguous and reads as follows—
“If the public agency or authority nominated under the sub-clause (7) above reports to the Regulatory Authority concerned that owing to the local situation, it is not possible to conduct the public hearing in a manner which will enable the views of the concerned local persons to be freely expressed, it shall report the facts in detail to the concerned Regulatory Authority, which may, after due consideration of the report and other reliable information that it may have, decide that the public consultation in the case need not include the public hearing.”
The phrase “owing to the local situation” is clearly and conveniently too fuzzy. What will constitute such a situation? In case of dams, often the preparatory work like geological surveys, construction of roads, demarcation of the submergence area, survey of the land to be acquired are started without informing the local people about the project. Dam sites often witness vehement public protests opposing the project. And efforts are routinely made with the help of State Governments & local administration to suppress these protests. There are examples where armed police or army had been deployed to tackle the protests against hydropower projects like Pancheshwar project or in North-East India.
Any such situation can be portrayed as a situation where “it is not possible to conduct the public hearing in a manner which will enable the views of the concerned local persons to be freely expressed” and the regulatory authority will cancel the public hearing. The question is—if there is such a situation at the project site, is it not responsibility of the Regulatory Authority (MoEFCC, SEIAA/UTIAA) to take measured to ensure that the public hearing happens in a manner where people do feel safe and are able to express their concerns freely? If public hearing is cancelled altogether in such a case, is it not a gross violation of human rights? Should the project at all go forward in such a situation?
Right in its opening page the notification slips into justification of post facto clearance to the projects which have started in violation of the EC process. Apparently “in the interest of environment”, the notification has laid down an elaborate procedure of fines and penalties “to bring such violation projects under the regulations”. The catch however is that the cognizance of the violations will be taken only in following cases—
- suo moto application of the project proponent; or
- reporting by any Government Authority; or
- found during the appraisal by Appraisal Committee; or
- found during the processing of application, if any, by the Regulatory Authority
It is thus clear that the cognizance of the violation will NOT be taken if it is reported by the local people at the site, people to be affected by the project or any civil society organization or media reporting the violation.
It is in fact the locals and the civil society organizations like SANDRP, National Alaince for People’s Movements, Manthan Adhyayan Kendra etc. who have actively reported the violations. Government on the other hand—be it EAC, or MoEFCC, State Governments have routinely turned a blind eye towards them while granting the environmental clearance. What then is the rationale for not accepting such violations and such evidence? And what makes the MoEFCC assume that the violators will come and report the violations ‘suo moto’?
Giving absolutely no space to common people who will bear the brunt of the adverse impacts of the project or civil society groups is a shockingly blatant effort to protect the violators. This U-turn from transparency is starkly un-democratic and in violation of the human rights of affected people.
It also goes against the best practices recommended in the EIA manual of MoEFCC and best practices advocated around the world including the recommendations of the World Commission on Dams, which require a ‘no project scenario’ before costly and risky projects like dams (SANDRP 2013) are proposed.
Several court judgements have struck down the concept of post facto assessment or accepting violations saying that the concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence (GoI, 2020).
Post-facto clearances will only encourage the process of violations. In case of dams it is a common case that the project is started without obtaining the requisite clearances. A significant amount of money is spent by the project proponent or Governments on kick starting the construction of dams and canals—there are numerous cases where the Chief Ministers of the States (in some cases like the Dibang Project even the Prime Minister) have laid the foundation stones of dams for which the EC and other requisite clearances are yet to be obtained. Such projects are then given clearances in the view of money already spent in the projects.
The new EIA notification has further facilitated this process by relaxing the requirement of clearances from other regulatory bodies or authorities. Now for the River valley projects to apply for the EC, only mandatory clearances will be in-principle approval for diversion of Forestland under Forest (Conservation) Act, 1980 (Forest Act) and recommendations of State or Union Territory Coastal Management Authority, in case of the project located in the CRZ or ICRZ area. Thus in-principle clearance from Central Water Commission, Forest Clearance, clearance from the Ministry of Tribal Affairs (if the project is affecting tribal) are no more required.
The notification has also diluted the definition of ‘construction work’ by excluding “securing the land by fencing or compound wall; temporary shed for security guard(s); leveling of the land without any tree felling; geo-technical investigations if any required for the project”. If these activities are started onsite, will the project proponent really wait for the EC before starting the construction of dams and canals? This relaxation also is in conflict with the requirement of the Forest Act that prior approval of GoI for use of forest land for non-forest purposes is mandatory. The Forest Act also stipulates that if the proposed work involves forest as well as non-forest land, work should not commence on non-forest land until the approval of GoI for release of forest land was received.
It is evident that above two relaxations will result in project proponent hastily starting the onsite activities preparing to start the construction. Since the CWC clearance is not required, crucial hydrological and inter state aspects of the project will remain unchecked. Is this not increasing the potential risk of the ecological damage multifold?
Conflict of interest for EAC members prevails
River valley and hydropower projects are proposed and pushed by India’s massive hydrocracy (Hydraulic Bureaucracy)—right from apex Ministry of Water Resources and Ganga Rejuvenation, its technical wing Central Water Commission to state water resources lobby and army of contractors and consultants. Happily succumbing to the pressure of hydrocracy—MoEF often seems to adopt engineering view of rivers and dams at the cost of environmental concerns.
MoEF has a record of handpicking EAC members—those who match the engineering worldview of the project proponents. SANDRP (2020) has pointed out that under the current EIA notification (2006) there have been many instances of persons of conflict of interest appointed as chairperson or members of the EAC. Several former and current engineers of Central Water Commission have been sitting on the EAC when CWC neither has any credentials nor a positive track record on environmental issues. The current head of the River Valley EAC is in fact former director general of National Water Development Agency, the river linking developer, and at one time he held both posts together. He also approved the NWDA project in the very first EAC meeting he presided over! Draft EIA notification 2020 has made no changes in the process of selection of EAC members, not even defined or barred persons having conflict of interest.
Monitoring and compliance further weakened
Monitoring and compliance of the EC conditions is the weakest link in the EIA process, Environment Minister Prakash Javdekar has publicly accepted (SANDRP 2020). A 2016 Performance Audit Report of the Comptroller and Auditor General of India (CAG) on Environmental Clearance and Post Clearance Monitoring observed lack of compliance of environmental clearance conditions by Project Proponents and weaknesses in monitoring of compliance by State Pollution Control Boards/Union Territory Pollution Control Committees & Regional Offices of MoEFCC (MoEFCC, 2016). The report has further remarked that there was lack of compliance with regard to deployment of sufficient manpower, installation of necessary infrastructure and engagement of third party agencies for independent monitoring.
The new notification has in fact further weakened the monitoring and compliance. EIA Notification 2006 stipulates six monthly compliance report. The new notification has changed the requirement to yearly compliance reports.
Cumulative impact assessment not made mandatory
Continuing the lacuna of the existing notification, Cumulative Impact Assessment (CIA) studies before preparing the EIA reports has not been made a mandatory requirement. Thus the cumulative or total impact of a number of projects in a region on the ecosystem cannot be known. The new draft of notification only seeks a checklist of potential cumulative impacts and whether the project has been proposed in a river basin for which CIA has been conducted or is in progress. CAG report of 2016 has already observed that either no information is given regarding cumulative effect or very general information is given by the PPs without any substantive cumulative impact studies in the EIA reports. CAG also noticed that in most of the EIA reports the PPs have indicated that they have not carried out cumulative studies.
Doing a cumulative impact assessment is critical for evaluating the impact of projects on the environment. Cumulating footprint of the environmental impact can be significantly larger and conducting EIA singularly for each project can be seriously misleading. The new notification has pushed a significant slab of threshold limits under category ‘B2’ projects and these projects are completely exempted from the EIA and public consultation process. This relaxation makes consultations for Cumulative Impact Assessments even more necessary.
So as the story goes—
To begin with, EAC members can have serious conflict of interest in granting the projects with EC. They may not even have any environmental credentials. Once the EC is granted, it is for the entire lifetime of the project without any review. Screening of the projects has been eliminated. The categories of the projects have been changed so that significant number of projects will escape the EC process. Comprehensive ToR is no more guaranteed. Additional studies for understanding nuances of impacts are discouraged. Cumulative impact assessment is not mandatory. Public hearing can be cancelled owing to the situation at the site. Technical clearances like approval from CWC are no more mandatory before application. In-principle forest clearance is sufficient for starting the project. Compliance and monitoring has been further weakened. If there is violation of the EC process, it cannot be reported by the affected people. And to top it all MoEFCC is willing to give a post facto clearance “in the interest of environment”.
Does all this even guarantee Environmental Impact Assessment?
Why even call it an Environmental Impact Assessment Notification?
~Amruta Pradhan email@example.com (with inputs from Himanshu Thakkar)
Note: Send your comments/objections about Draft EIA 2020 to the ministry at firstname.lastname@example.org by June 30, 2020.
2. This video explains in simple terms the problems with the Draft EIA Notification 2020. The video is based on our article at South Asia Network on Dams Rivers and People.
Please Watch, Share widely.