The environment impact assessment law seems to be driven by those whom it is meant to regulate.
IN 2004, the Ministry of Environment and Forests (MoEF) first revealed its agenda for reforming the environmental clearance framework for industrial/infrastructure projects. A new Environment Impact Assessment (EIA) Notification, replacing the 1994 version passed under the Environment (Protection) Act, 1986, was to draw its objectives from the Govindarajan Committee Report on Reforming Investment Approval and Implementation procedures.
The report identified the need to simplify the procedures for grant of approvals and for regulation during the operational phase, and to reduce delays in the project cycle. These recommendations, along with a review process through the World Bank-Assisted Environmental Management Capacity Building (EMCB) project, set the ball rolling for reforms.
On September 15, 2005, a new draft EIA notification was uploaded on the MoEF's web site for public comments. But the process that followed left no doubts as to who were the main parties consulted: apex industry associations. Between April and July 2006, a revised version of the draft EIA Notification was shared with industry for its feedback, in writing and through meetings. On September 14, the Ministry issued a new Notification, putting in place a process for environmental clearance for mines, steel plants, dams, thermal power stations and cement factories, among other things.
An environment law meant to promote sound, unbiased, and effective social and environmental assessment of development and industrial activity was thus driven by those it was meant to regulate. In its earlier avatar, the EIA Notification was misused and tampered with to make space for destructive development. The new EIA is clear and firm on its agenda of facilitating economic growth.Why is this important?
It is well known that the tribal heartlands of India have the "potential" to generate electricity through mega dams and also hold huge mineral and other resources that can fuel the growing economy, making them fiercely contested areas. For development-related activity to happen, indigenous people and Adivasis must move out and lose their cultural base and means of livelihood.
The purpose of the EIA Notification was to evaluate the potential environmental and social impacts of development projects and to conduct public hearings before projects are considered for clearance. But the promise of just decision-making integrating the concerns of citizens has rarely materialised.
In many cases the entire process was compromised by substandard or fraudulent EIA reports and by public hearings marred by intimidation or violence, so that an eager MoEF (thought of as helpless sometimes) could grant clearance despite procedural lapses and the likelihood of irreversible impacts on the environment.
In the case of the Indira Sagar Major Irrigation (Polavaram) project in Andhra Pradesh, the project proponent conducted only one public hearing (mandatory under the Notification) in Andhra Pradesh even though tribal communities of Chhattisgarh and Orissa will also be affected by the project. It is noted by the Central Empowered Committee of the Supreme Court that 48.67 per cent of the project-displaced people from Andhra Pradesh and Chhattisgarh belong to the Scheduled Tribe category. In their arguments before the National Environment Appellate Authority, where the environmental clearance of this project has been challenged, the project proponents claimed that they did not think it necessary to conduct public hearings in the other States.
Niyamgiri Hills in Orissa is home to the Dongria Kondh tribe. It also houses one of the world's largest bauxite reserves. Mining by Vedanta Alumina Limited in this area will impact the health of the forests and the water sources, directly affecting the livelihoods and survival of the communities inhabiting the area. The project proponent has twisted facts and delinked two components of the same project to get the requisite environmental clearance.
There are scores of other such cases. At least a dozen are in the northeastern region.
Ideally, the EIA reforms process should have drawn from these experiences to create a clearance regime that will not compromise the lives of tribal and other communities. The new fast-tracking of clearances to reduce delays has paid no attention to the need for detailed impact studies, transparency and effective public participation in decision-making processes, strict monitoring and action against violators. As a result of the so-called reforms, some of the flaws in the old clearance process have been amplified.
The 2006 Notification divides the responsibility of clearance of projects between the Central and State governments through a four-step process of screening, scoping, public consultation and appraisal. Category A projects are to be cleared by the MoEF and Category B by new authorities to be set up in the States. Category B projects can be further sub-divided into B1 and B2; no EIA and public hearing will be required for B2 projects. The categorisation is based on the capacity and the process involved.
With its objective being driven in favour of the project proponent, the new clearance regime is bound to throw up problems, some of which are given below:
At the screening stage, the notification facilitates subdivision of Category B projects into B1 or B2 categories. This is done on the basis of information provided in an application form, which can in no way replace a detailed EIA.
There is absolutely no justification for giving up the EIA process for a 450-MW thermal power plant falling within Category B - when a 500-MW plant in Category A will need it - merely on the basis of information provided by the project proponent. How different would the social and environmental impact of these plants be if they were set up in the same area or context?
One of the most problematic areas in the Notification is the Public Consultation process, where only a draft EIA report will be available to the affected persons at the time of the public hearing. Now, communities that are likely to be affected will not get to see the final EIA document, on the basis of which the decision on the project will be made.
According to the new Notification, a public hearing can be cancelled if the local conditions are not conducive to it. It is not mandatory then for the authorities to conduct a fresh hearing. There is no doubt that this clause is subject to misuse by the project proponents and the regulatory authorities. This is not a presumption but an observation based on facts on the ground. The next time the tribal community attempts to enter a public hearing being conducted in the Tata Steel plant in Noamundi, Jharkhand, instead of using the police force the authorities can simply cancel the event and make recommendations without hearing people out.
Projects that do not require EIA studies or public consultation will be appraised only on the basis of information provided in the application form and by discretionary site visits. There is no system of public participation at this stage. As a result, no one will get to see the final documents on the basis of which clearance is recommended. In the past, clearances have been granted on incomplete information. This will continue to happen. Project proponents, EIA consultants and the regulatory authorities remain the same; only, the law is more lenient now.
The most critical issue of monitoring and compliance is dealt with in precisely three sentences in the EIA Notification. There is only a mention of the six monthly compliance reports to be submitted by the project proponent. Even the role of the MoEF finds no mention whatsoever in the Notification, leave alone the affected communities themselves.
Project proponents are being continually pulled up by local governments for violating State and Central laws and for non-compliance of clearance conditions. Also, some of the MoEF's own monitoring reports indicate non-compliance, on which it has most often failed to take action. A prime example of this is the Teesta-V hydroelectric project in north Sikkim, which has directly affected the lives and livelihoods of the Lepcha and Bhutia tribes.
As per the new Notification, clearances for hydroelectric power projects will be valid for 10 years and those for mining projects will be valid for 30 years. This can have an important bearing on the project impacts. The developer may start on the project just before the expiry of the period, by which time the parameters of the EIA study (such as social, demographic or ecological) may have altered significantly and rendered the conclusions of old EIA studies redundant.
As the government moves towards achieving its target of averaging a 9 per cent growth rate, it will aim at promoting mega industrial and infrastructure development. Laws and policies in each sector will be moulded around economic interests.
The implementation of all this will require the acquisition of more land, compromising ecological security, and a complete takeover of the few remaining tribal homelands. Tribal peoples' displacement will be inevitable.
In some cases it will be physical, and in others through denial of livelihoods and through cultural erosion. And when this happens, their silence will transform into rebellion. We have seen glimpses of this already.
Kanchi Kohli and Manju Menon are members of Kalpavriksh Environment Action Group.