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Last Updated : Jul 31, 2020 12:07 PM IST | Source: Moneycontrol.com

Why the proposed environmental rules might incentivise illegal activity

The draft EIA notification is likely to incentivise the practice of setting up industries without any regard for environmental concerns — knowing that any violation is highly likely to be condoned in due course

Representational Image
Representational Image

The ground for the latest tussle between the Narendra Modi government and its detractors seem to be in the area of environmental laws. A draft of the Environmental Impact Assessment (EIA 2020) notification is open for public comments till August 11, after the Delhi High Court directed the government to grant further time.

The problems with the draft notification are many: environmentalists lament that it dilutes an already weak framework for environmental protection. It reduces the rigour and number of regulatory oversights, it reclassifies industries so that they are not required to get environmental clearance, and reduces the time period for and scope of mandatory public hearings before clearances are accorded.

For instance, mandatory public consultation has been waived off for several types of projects that greatly affect local communities, including ‘building construction and area development’ projects, widening or expansion of highways, elevated road projects and flyovers, and inland waterways projects. Another set of projects have been exempted from obtaining prior environmental clearance altogether. Information relating to clearance for projects dubbed ‘strategic’ (what is strategic is not defined) will not be put in the public domain.


However, the most alarming of changes is the provision for regularisation of projects operating without environmental clearance. Clause 22 of the draft notification requires the project proponent to make a self-assessment of the ecological damage caused by its operations, as well as prepare a remediation plan. The violations, if condoned, will cost the proponent a mere 1.5 times the ecological damage caused, as well as the economic benefit derived, due to the violation. Or in other words, a post-facto clearance.

This is a contentious issue with a chequered history. At least twice before, various governments have tried to usher in similar provisions. In 2002, a circular from the ministry of environment and forests granted a last and final opportunity for defaulting units to obtain ex-post facto environmental clearance, provided that they earmark a separate fund for eco-development measures. This was, however, struck down by the National Green Tribunal in 2016.

In 2017, the environment ministry issued another notification which again provided for post-facto clearances, this time with a more stringent (at least on paper) vetting process by an Expert Appraisal Committee. This was challenged before the High Court at Madras, during the hearings of which the government stated that the benefit ‘shall clearly and certainly be a one-time measure’. Indeed, Paragraph 14 of that notification gave a six month window for project proponents to apply for such condonation. In these circumstances, the high court upheld the notification.

Meanwhile, while hearing the appeal against the 2016 NGT order, the Supreme Court observed [Alembic Pharmaceuticals Ltd. vs Rohit Prajapati] that “the concept of an ex-post facto EC is in derogation to the fundamental principles of environmental jurisprudence”. Therefore, it most certainly follows that the latest notification is directly in violation of the law laid down by the Supreme Court, apart from being contradictory to its own explicit undertaking given to the high court.

As it turned out, even as the Supreme Court ruled against the principle of ex-post facto clearances, it still allowed the three violators who were before it to continue operations, imposing a fine of Rs 10 crore each as compensation. This, then, is the big worry for environmentalists. Once operations are commenced, courts are much more reluctant to order closure, as has been seen in so many cases, even though it perhaps would have withheld approval to a similar project that was yet to commence.

What the draft notification does is magnify this risk. It will incentivise the practice of setting up industries without any regard for environmental concerns — knowing that any violation is highly likely to be condoned in due course. However, damage to the ecology is most often, irreversible.

Interestingly, this is a theme that is being played out in several countries today. Just this month, United States President Donald Trump rolled back provisions of the country’s National Environmental Policy Act, reducing the number of industries that are subject to the Act’s review requirements, and substantially curtailing the public’s right to have a say in development of projects in their neighbourhoods. Brazil also regularly makes news for giving industrialists an almost free pass, and ignoring environmental concerns.

Often environmental concerns are framed as a conflict between conservation and development. That is a false illusion. It is more often than not, a conflict between conservation and wilful violations. Regulation must dis-incentivise violations before they are committed, if development is to benefit the community at large. The draft EIA does the opposite.

Abraham C Mathews is an advocate based in Delhi. Twitter: @ebbruz. Views are personal.
First Published on Jul 31, 2020 12:03 pm