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Disarming the Law
Sunita Dubey on dilution of the law on environmental impact assessments over the years
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December 2002 - In order to predict environmental impacts of any development activity and to provide an opportunity to mitigate against negative impacts and enhance positive impacts, the Environmental Impact Assessment (EIA) procedure was developed in the 1970s. An EIA may be defined as: A formal process to predict the environmental consequences of human development activities and to plan appropriate measures to eliminate or reduce adverse effects and to augment positive effects.

In India, the Ministry of Environment and Forests at New Delhi introduced the EIA law through a gazette notification passed on 27 January 1994, for obtaining "environmental clearance" for certain types of projects. To make it more participatory the provision of "public hearing" was added, which was definitely a step forward. The main EIA notification has been amended seven times in the past eight years. All these amendments instead of strengthening the process have diluted it to an extent that it is now merely viewed by industries as a formality in the environmental clearance procedures.

A recent amendment to the EIA requirements that was notified on 13 June 2002 exempts pipeline projects from preparation of EIA reports. This has further weakened the process of environmental clearance. It also violates the basic premise of authority granted by the Environment Protection Act, 1986. Yet, public hearings need to be conducted in all the districts from where the pipeline will pass. This poses two problems: firstly, it is not clear how an EMP (Environment Management Plan) and Risk Mitigation measures can be formulated when the developers have not studied the potential impacts of a proposed pipeline through preparation of an EIA report.

Secondly, on what basis would persons attending a Public Hearing relating to a pipeline project voice their concerns? Both the routing and the construction of pipelines can have severe consequences on people and their environment. Pipeline projects may create unnecessary hardship to local people due to construction work, and pipeline leaks are a potential hazard. Both routing and construction can cause unnecessary and severe damage to sensitive ecosystems. But if these projects are exempted from the EIA process, no other mechanism ensures adequate review of these potential consequences.

Curiously, the June 2002 amendment reconstitutes the requirement that EIA reports must be made available to the public prior to the Public Hearings, a requirement that was done away with earlier. But with the increasing number of projects being exempt from preparing EIA reports, this provision may soon have no meaning. This amendment was also made without issuing notice to the public asking for their opinions and comments stating that it was in "public interest not to do so". Section 3 of the Environment Protection Act, 1986 (EPA) under which the EIA notification has been issued, authorises the Central Government to take measures for, "protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution." Naturally, it flows that anything derived under Section 3 of the EPA should be for the purpose of preserving the environment and controlling pollution. Thus when the Environment (Protection) Rules, 1986 refers to the public interest it is obviously in that context. If that is the case, one fails to see how these recent amendments serve the public interest.

There are other examples. The 1994 notification, made it mandatory for the Impact Assessment Agency (IAA), i.e. the Ministry of Environment and Forests to consult a Committee of Experts before granting environmental clearance to a particular project. In its present amended form the notification states that the IAA may consult the Committee of experts if deemed necessary. The 1994 notification made it mandatory for half-yearly compliance reports prepared by the project authorities to be made publicly available. The notification now leaves it to the discretion of the IAA to make complaint reports publicly available, "subject to public interest".

Clearly, the recent amendments are resulting in the dilution of the law on environmental impact assessments.

Sunita Dubey
December 2002

The author is with the Environment Justice Initiative. This article is made available on India Together by arrangement with Toxics Link, New Delhi. Toxics Link, H-2 Jungpura Extension, New Delhi 110 014. Tel: +91 11 4328006/0711.