Pollute and Pay Principle – EIA Draft Notification 2020
Author- Dipti Gabriel
CHRIST (Deemed to be University), Bangalore, Karnataka
POLLUTE AND PAY PRINCIPLE – EIA DRAFT NOTIFICATION 2020
‘The new draft will strengthen discretionary power of government while restraining public engagement in safeguarding the environment’
- Manohar Chawhan, a tribal rights activist
The newly drafted notification on Environmental Impact Assessment 2020 by the Ministry of Environment, Forest and Climate Change, under the Government of India, is seen to wither from the essence of the environmental jurisprudence standard set in 2006 notification in order to amend it. There has been a massive amount of public agitations by way of petitions flooding in the courts when the draft was open for public opinion. Amidst the erupting of diseases and disasters in this pandemic, the NDA government aims to release such notification which empowers discretionary power and thereby arbitrariness of the government while granting environment clearances to industrial setups even after they start operating. The legal perspective from the eyes of environment laws needs to be invoked to put this draft back in its jurisprudential source and then should it function with a new mechanism in accordance with the global pandemic scenario. This research paper will be throwing light on the future challenges to be faced if the draft is enacted, and how it will adversely affect the roots of the Indian democracy which has failed to sustain its biodiversity. The paper will also put forth suggestions and recommendations which could help in reforming the current disputed draft of 2020 to facilitate precautionary steps in order to avert exploitation of intergenerational equity.
Keywords- EIA draft 2020, Environmental Impact Assessment, Intergenerational equity, Environmental Jurisprudence, the discretionary power
A. EIA – Meaning, History and Importance
An internationally mandated policy tool EIA tries to strike a balance between development and environment by gauging the externalities of an industrial project in the name of development, on the environment and its growth. In case of any absence of efficient supervision over any such project, the said tool will prevent its expansion.
The first draft of EIA was issued by the Indian Government in the year 1994 in consonance with the provisions of The Environment (Protection) Act, 1986 which is umbrella legislation with regards to environmental regulation in India. This draft was later replaced in 2006. There is not much difference between the two drafts except to go in tandem with the changing socio-environmental requirements.
However, the current 2020 draft is running through debates for the sole reason that it dilutes the efficacy of environmental principles of both Indian and International laws; by increasing the discretionary and arbitrary powers of the government specifically through the ‘post-facto clearance’ concept.
B. Why is EIA significant at all?
This concept ensures that all the environmental problems arising as a consequence of any development in the economy should be mitigated before it amounts to greater and irreparable damage. The essence of the Precautionary Principle and the basis of sustainable development also fall on a similar line. This tool has its roots in the Rio Declaration in 1992.
We can observe the importance of EIA as it prevents any developments from happening in the economy in the future without following the required safeguards which will ensure environmental degradation is mitigated as feasible and as possible. Since one of the core pillars of sustainable development aims to strike a balance between environment and ecology, similarly EIA acts as a threshold that should be granted selectively through its specific procedure.
Section 3 of The Environment (Protection) Act, 1986 makes it mandatory for all developmental projects to acquire a prior Environmental Clearance, which is an authorized permission granted by independent agencies and State Pollution Control Boards, to assess the impacts of its operations on the environment and to ensure that the natural resources are not endangered. If the latter is supposed to happen, then the clearance can be denied. This Clearance is granted via the EIA report, thereby making its existence, not less than an asset in the environmental jurisprudence.
C. Red flags of the EIA draft 2020
In simple words, Section 3 of EPA, 1986 emphasizes that an Environmental Clearance must be granted to project authorities as license permission to begin their operations, and hence any permission is granted before its commencement. However, one of the prominent negative concepts of post-facto clearance under the 2020 draft can be seen to violate such provision under the above mentioned Act.
This post-facto approval aims to provide an Environmental Clearance (EC) to the supposed projects even after they start their operations or construction activities, hence it legitimizes the functioning of the industries even without clearance and also states that these industries can avoid their liabilities by simply paying the required compensatory damages even in case of any irreversible environmental degradation caused, and can subsequently obtain a Clearance on the same. What else can be the perfect way to allow illegal industries to function legally?
Secondly, the 2020 draft is seen to be violative of the fundamental rights guaranteed by the Indian Constitution, particularly Article 19 (1) which defines that every citizen of India has the freedom of speech and expression with certain reasonable restrictions. The reason for such violation is because the government did not allow a suitable time period for public opinions on the draft as it is the people of the nation who will be affected subsequently through such draft. Following this, a petitioner in Vikrant Tongad v. Union of India, asked the courts to extend the time period for public opinion contributions on the draft while keeping into consideration the restricted participation of the public due to the pandemic.
Another issue is that the text of the draft is available only in Hindi and English. India is the largest democracy and having nearly 121 regional languages recognizes only 22 of these dialects under the VIII Schedule to its Constitution. There is currently no National Language of the country. However, according to Article 343(1) in Part XVII, Hindi is specifically recognized as the Official Language along with English, to be used for official purposes.
There have been several complaints against the 2020 draft that it has not been provided in other regional dialects considering that the said draft will be directly having an impact on the grass-root level of the democracy. The legislature before passing any bill should de facto consider these requirements. Such controversy was also adhered to in the Vikrant Case where the court directed the government to provide the EIA draft 2020 in other 22 languages provided under the VII Schedule to the Indian Constitution.
The government however in its defense contended that such translations would, however, lead to several unintended interpretations of the draft and hence got away with it in the first instance. On the other hand, the court emphasizes the absence of translated draft documents as snatching away the voice of those citizens who are not in a position to decipher the official languages, thereby highlighting the importance of the VIII Schedule.
Exemption of Ecologically Sensitive Areas or Zones (ESA) is another core negative reason for the draft to be resisted by the people in the country. According to the previous 2006 draft, areas like grasslands, marshlands, wildlife sanctuaries and even national parks were notified specifically by the Environment Ministry in accordance with Section 3(2)(v) of the Environment Protection Act 1986, to be ‘ecologically sensitive areas’. As the name suggests, any construction or development within a 10 km radius around these zones was supposedly prohibited according to the Indian Board for Wildlife, due to their fragility and creation of lodging for rare species of flora and fauna. These zones are given the role of ‘shock absorbers’ of such rich diversity.
The 2020 EIA draft, however, scrapes out even this cap which protected ESA from any exploitation by constructions as the State proposes to minimize these zones on the grounds that it ‘hinders infrastructural development’ and as a matter of obvious fact, several experts and biologists have raised their voices against this concept.
Next, as a general rule, all the projects commenced with respect to National Defence and Security are supposed to be termed as ‘strategic’ and can avoid their liability from being answerable to the public but, the current draft seems to extend its ambit even to other developmental projects throughout the nation like the construction of highways or any development in coastal areas, including ecologically hazardous setups like thermal plants in any of environment rich zone. Making these projects fall under the strategic category will allow the said industrial authorities to evade their accountability to the public in general. As per such draft, any of the details of any such strategic project so commenced will not be disclosed to the public, hence leading to arbitrariness and discretion exercised by the respective authorities and which is being favoured to a great extent. This can be interpreted as the exercise of The Right to Information Act of 2005 won’t be applicable to the added categories of the industry within ‘strategic zones’ under the draft 2020.
There cannot be seen a single provision which aims towards sustainable development as defined under the Brundtland Report of 1987 (Our Common Future) rather it seems to be ‘violator friendly’.
Another provision emphasizes increasing the threshold limit and include the projects covering 40 acres of land to operate without approval. Earlier it was limited to those having 5 acres of land. Clearly, a lot more industries can benefit from this to function with no one to question their operations if conducted illegally or in a way to disrupt the nearby environment.
D. Prominent reason for the EIA draft 2020
One of the reasons for the poorly drafted EIA 2020 presumably as reported is that Mr. Prakash Javedkar who is the present Minister for Environment, Forest and Climate Change, is also the Minister for Heavy Industries and Public Enterprises. Even if he tries to balance out the importance of both the Ministries by drafting out policies for them, the 2020 draft gives out more consideration to the latter Ministry which deals with the smooth setting up and growth of Industries. We can observe that infrastructural development for the speedy economic growth at the cost of exploitation of the environment is preferred over its conservation and protection.
Not that the Indian economy is in a flourished position with respect to its biodiversity that it can actually loosen its control over its conservation.
According to the Environmental Performance Index (EPI) India bears 177th position out of 180 countries regarding its status of sustainability followed. Slogans like ‘If you don’t kill pollution, It will kill You’ are widespread among the people in the nation, however on the other hand the industries are just focused on how to raise their revenues no matter at what cost or externalities they originate.
E. Legal perspective of the EIA draft 2020
Apropos the unfavorable provisions of the EIA draft notification 2020, there have been some important case laws resulting from the action taken by the eligible citizens of India as a matter of their right. In the recent case of Alembic Pharmaceuticals Ltd. V. Rohit Prajapati, the Supreme Court sets aside the order given by the National Green Tribunal (NGT) which gets its authority from the National Green Tribunal Act of 2010 .
As per this order of the NGT (2016) the industries in question were asked to shut down their operations as they operated for nearly 10 years without obtaining valid Environmental Clearances as it was mandated to have a ‘prior EC’ as per 1994 circular, instead they groomed ‘post-facto clearance’.
Now this order with respect to closure of industries by the NGT was considered as ‘disproportionate’ and set aside by the Supreme Court in the present case. The Apex Court to remedy this laid a precondition by giving a direction to deposit Rs 10 Crores as compensation in order to resume the industry’s operations.
The however court emphasizes that such ‘post facto clearances are violative of the fundamental principles of environmental jurisprudence specifically precautionary principle and the principle of sustainable development’.
On the other hand looking at the profound words emphasised in the case of Common Cause v. Union of India, this post facto clearance is observed to be ‘alien to the principles of environment laid down in the EIA drafts of 1994 and even 2006’.
Further in the 2011 judicial activism case of Lafarge Umiam Mining Pvt Ltd. V. Union of India the Supreme Court gave out detailed guidelines with respect to granting of Environmental Clearances.
The Doctrine of Proportionality which consists of principles of natural justice along with the respective legislative policy of the concerned field was highlighted by the court to be used while granting Environmental Clearances to the industries.
F. Future risks and Challenges to the democracy
Considering all the supposed negative externalities the draft brings out, we can move on as to what would be the repercussions of the said draft on the democracy at large, if at all it is passed on by the Parliament. The Ministry of Earth and Sciences of the Government of India reports that such a draft if the given effect would adversely affect the diversity, water and natural resources like energy and food and will exacerbate the challenge of climate change which the country already faces.
It is quite condemning to know that India is one of the majorly hit nation because of the pandemic and is therefore in a climate and health emergency and yet the government opts to bring out a notification which tries to test the patience of the laymen. The draft is not a straight jacket solution to the present challenges faced by the biodiversity in India; rather it is deceitfully designed that a person reading it will not be in a position to comprehend the consequences in the first place itself.
The groups of people at the grass-root level of the democracy will be the ones facing all the externalities if this draft if passed. The present draft proves to be violative of Article 21 of the Indian Constitution which guarantees the right to life and personal liberty to the citizens of India. It limits the decision making by the local body institutions and even the public participation.
Even after several pleas and contentions to withdraw this notification if it is still given effect, then India will lose its essence of being a democracy and such action by the legislature will be antagonistic to the words of ‘WE THE PEOPLE’ in the preamble to the Constitution as the voice of the people itself is not given the importance which forms the foundation of the country’s ruling system. From such an understanding we can even claim the draft to be violative of Article 14 which guarantees the right to equality, Article 19 which guarantees the right to freedom along with Article 21, thereby forming the golden triangle of the fundamental rights.
The draft fails to inculcate even Article 51 A g of the Constitution which imposes a fundamental duty on every citizen to preserve and conserve the environment in every way possible.
The draft is even against the concept of Constitutionalism as it promotes arbitrariness of the government. The ‘antithesis of arbitrariness’ is uprooted the moment EIA draft 2020 is given effect. Not to mention the draft even goes against the internationally laid down principles including the Sustainable development, precautionary principle, the polluter pays principle as the draft aims to allow the industries to pollute first and then pay for the same and it also fails to comply to the principles given by the famous economist Herman Daly.
Even if we consider the provision of Environmental clearance to the industries as per the draft of 2006 itself, there was hardly any industry or project to which the Clearance was ever denied based on the probability of harm to be caused because of its operations. Yet, the present draft in question just makes such granting of ECs without proper assessment as an obvious fact which cannot be questioned.
Considering that every nation is dependent either directly or indirectly on their natural ecosystems and its resources for meeting several alternative needs, the essence of inter-generational equity must be kept in mind considering the fact that such resources are limited and the wants are non-exhaustive and alternative. If such a draft is favoured in any sense, it will not only endanger the resources of the present generation but also those of the posterity to come which is against the foundation of sustainability of such resources.
The people in the most rural areas which forms the grass root level of the nation, will be impacted the most as the draft which is available only in the Official Languages of the country, acts as a huge obstacle for such people who ideally lack education, and to comprehend as to how it will be affecting their ways of living and its consequences, just aggravates the situation. In other words, the draft takes away the rights of the most affected communities to challenge and report any such damages to their place of living and the environment.
India’s northeast region consisting of the seven sisters that are Assam, Mizoram, Meghalaya, Manipur, Tripura, Arunachal Pradesh, and Sikkim forms a massive biodiversity-rich belt which makes these places prone to excessive mining and extraction activities. Such activities already happen at a large scale and it even encroaches over ecologically essential areas like Dihing Patkai Wildlife sanctuary, eco-sensitive zones of Dibru-Saikhowa, and the like. Considering the altitude of such areas, landslides, floods and earthquakes are very common to the people living there and hence the role of Environmental Impact Assessment becomes quite imperative in such regions if at all any industrial setup is fixed to have easy access to resources. EIA draft 2020, not adhering to fundamental environmental principles, will act regressively.
The most recent example of a poor EIA implementation can be the Baghjan oil and gas leak incident in Assam 2020 where there was a leakage of natural gas which further lead to the catching of fire in the Oil India Limited (OIL). Huge environmental damage was the ultimate consequence affecting the Dibru-Saikhowa National Park.
II. SUGGESTIONS AND CONCLUSION
The ideal way of tackling environmental problems should be corrective and not compensatory as any such harm is something that cannot be brought to status quo. Therefore the authorities should not sit back and relax with the view that even if any harm emerges, they can remedy the same by compensatory damages.
The draft brings out a way which is to pollute and then pay and not to first analyze and take actions to avert any emergent environmental harm from occurring in the first place- precautionary principle.
The first and foremost suggestion would be that the Environmental Impact Assessment Draft Notification of 2020 must be withdrawn, or the least which could be done in the interests of public welfare is to reconsider the draft and improve and amend the same in a way that is not just suitable, but is beneficial for the present as well as the future generations.
The notification doesn’t give importance to both the environment as well as the people and that is why it is labeled as anti-people and anti-environment. It does not stand anywhere near the balance between development and ecology and hence it should be avoided to the greatest cost possible because if this is given effect, it will favour industries to pollute and then avoid their illegalities by compensating and not bringing a corrective measure which can be used for the days to come.
Other thing is that the information about this draft must be spread to people of all classes and at all levels so that they are aware of the supposed changes in the environment they live in and they can take actions to avert this mammoth risk from taking place in order to avoid any future sufferings from the same in the first place.
More and more people should participate and take actions by way of petitions, strikes, rallies and all lawful forms of protest for the sake of the already endangered environment as despite the pandemic situation the NDA government still paves a way to invite disasters and pandemic situations more openly in the name of ‘ease of doing businesses by the industries for speedy growth of the economy’ and this is truly appalling.
There has been a complete laxity on part of the legislature as such draft is not at all eco-friendly instead it is an environment rival. If the industries are allowed to pollute and exploit nature as it like for its own benefits, then the response of nature will be quite disastrous for mankind. The Australian Wildfires is the best example.
To conclude, this draft does not have any lawful stand of its own with respect to both the environment as well as the people of the country, and hence such notification only hampers the social welfare of the nation which forms one of the pillars of the developing democracy like India and it just proves to be regressive instead of helping the country to progress therefore it should be avoided to be passed by the Parliament or at least be restructured for the well being of the nation and its resources, not to mention to fulfil inter-generational equity as well. Hence, there should be initiatives taken by the government itself to raise awareness about what the draft aims to propose, the public should demand the withdrawal or the rectification of the draft, Provisions of Environment Protection Act, 1987 should be strictly adhered to, the judiciary should take activism steps to direct the government to follow the fundamental environmental principles and impose huge penalties on the concerned authorities.
 Abhijit Mohanty, Why draft EIA 2020 needs a revaluation, (July 06,2020), available at: https://www.downtoearth.org.in/blog/environment/why-draft-eia-2020-needs-a-revaluation-72148 , last seen on 19/09/2020
 Shravani Shendye and Oshin Malpani, ‘The conundrum of Ecology v. Economy: Analysis of the EIA Draft 2020’, Law School Policy Review, LSPR (9 July 2020), https://lawschoolpolicyreview.com/2020/07/09/the-conundrum-of-ecology-v-economy-analysis-of-the-eia-draft-2020/, last seen on 20/09/2020
 Brundtland Report G. (1987), available at; https://www.iisd.org/about-iisd/sustainable-development last seen on 22/09/2020
 Rio Declaration 1992 (14/06/1992),UN Doc. A/CONF.151/26 (vol. I), 31 ILM 874 (1992)
 The Environment (Protection) Act, 1986 (Act No.29 of 1986), Section 3
 State Pollution Control Board established under the Water (Prevention and Control of Pollution) Act, 1974, (Act No. 6 OF 1974)
 The Environment (Protection) Act, 1986, (Act No.29 of 1986)
 The Constitution of India, Article 19 (1)
 3747/2020 & CM APPL. 1342/2020
 The Constitution of India, Article 343 (1)
 Supra note 8.
 The Environment (Protection)Act, 1986, (Act No.29 of 1986), Section 3(2)(v)
 Stellina Jolly, Draft EIA Notification 2020 Is Out of Sync With State Practices, International Law, (July 31. 2020), available at: https://thewire.in/environment/draft-environment-impact-assessment-notification-international-law, last seen on 25/09/2020
 The Right to Information Act, 2005 (No. 22 of 2005)
 United Nations General Assembly document, 1987 A/42/427
 Jay Mazoomdaar, Reading the draft Environment Impact Assessment norms, and finding the red flags, (August 10, 2020). Available at: https://indianexpress.com/article/explained/draft-environment-impact-assessment-norms-explained-6482324/, last seen on 26/09/2020
 Civil Appeal No. 1526 of 2016
 The National Green Tribunal Act, 2010 (No. 19 of 2010)
 Writ Petition (Civil) Nos. 114 and 194 of 2014
 (2011 (7) SCALE 242)
 Doctrine of Proportionality: An Analysis of Supreme Court Cases, (13 October, 2018), available at: https://racolblegal.com/doctrine-of-proportionality-an-analysis-of-supreme-court-cases , last seen on 27/09/2020
 The Wire Staff, More Than 500 Students, Researchers Ask Environment Ministry To Revoke EIA 2020 Draft, (September 2, 2020), available at: https://thewire.in/environment/students-researchers-environment-ministry-letter-revoke-draft-eia-2020, last seen on 28/09/2020
 The Constitution of India, Article 21
 The Constitution of India, Article 14
 The Constitution of India, Article 19
 The Constitution of India, Article 21
 Maneka Gandhi v. Union of India (AIR 1978 SC 597)
 The Constitution of India, Article 51 A(g)
 International Institute for Sustainable Development, available at: https://www.iisd.org/about-iisd/sustainable-development, last seen on 29/09/2020
 Herman Daly, (1996, USA), The Right Livelihood Foundation, available at: https://www.rightlivelihoodaward.org/laureates/herman-daly/, last seen on 30/09/2020
 Sayan Banerjee, Draft EIA 2020: How it may impact North East, (August 10, 2020), available at: https://www.downtoearth.org.in/blog/environment/draft-eia-2020-how-it-may-impact-north-east-72742, last seen on 30/09/2020
 Gaurav Das, NGT Accepts a New Case Against OIL for Baghjan Blowout, (July 09, 2020), available at: https://thewire.in/environment/ngt-accepts-a-new-case-against-oil-for-baghjan-blowout, last seen on 30/09/2020
 Explained: What is EIA 2020? How does it water down the existing policy? (August 10 2020), available at: https://www.theweek.in/news/biz-tech/2020/08/10/explained-what-is-eia-2020-how-does-it-water-down-the-existing-policy.html, last seen on 30/092020
 K N Ninan, Draft EIA 2020: Inviting disasters, pandemics, (August 07 2020), available at: https://www.deccanherald.com/opinion/main-article/draft-eia-2020-inviting-disasters-pandemics-870424.html, last seen on 29/09/2020
 Jamie Tarabay, Why These Australia Fires Are Like Nothing We’ve Seen Before, (January 21, 2020),The New York Times, available at: https://www.nytimes.com/2020/01/21/world/australia/fires-size-climate.html, last seen on 30/09/2020