EIA in India-Challenges for environment EIA in India-Challenges for environment and development- the court’s responseand development- the court’s response

Sanjay UpadhyaySanjay UpadhyayAdvocate Supreme CourtAdvocate Supreme Court

Managing PartnerManaging PartnerEnviro Legal Defence FirmEnviro Legal Defence Firm

August 2013August 2013

EIA in India-Challenges for environment and EIA in India-Challenges for environment and development- the court’s responsedevelopment- the court’s response

EIA- Is it adequate?EIA- Is it adequate? EIA TrendsEIA Trends EIA-2006EIA-2006 Gaps Gaps Infrastructure and Environmental Infrastructure and Environmental

Compliance – Some ExamplesCompliance – Some Examples Role of Courts?Role of Courts? NGTNGT Some Broader Concerns on EIASome Broader Concerns on EIA Way ForwardWay Forward

EIA – Is the process adequate?EIA – Is the process adequate?

What is EIA ?What is EIA ? Key objective - To integrate the environmental concerns in Key objective - To integrate the environmental concerns in

the developmental activities in its initiation stage and the developmental activities in its initiation stage and further integrate environmental concerns and mitigation further integrate environmental concerns and mitigation measures in project development. measures in project development.

Screening; Scoping and consideration of alternatives; Screening; Scoping and consideration of alternatives; Baseline data collection; Impact prediction; Assessment of Baseline data collection; Impact prediction; Assessment of alternatives, delineation of mitigation measures and alternatives, delineation of mitigation measures and environmental impact statement; Public (Hearing) environmental impact statement; Public (Hearing) Consultation ; Decision making and Monitoring the Consultation ; Decision making and Monitoring the clearance conditionsclearance conditions

Trends of EIA amendmentsTrends of EIA amendments Public Hearing ( Exempted) in respect of certain classes Public Hearing ( Exempted) in respect of certain classes

(notified/designated industrial areas/industrial estates or industries (notified/designated industrial areas/industrial estates or industries under the jurisdiction of industrial development authorities; widening under the jurisdiction of industrial development authorities; widening and strengthening of highways; mining projects (major minerals) with and strengthening of highways; mining projects (major minerals) with lease area up to twenty five hectares, units located in Export Processing lease area up to twenty five hectares, units located in Export Processing Zones, Special Economic Zones; modernisation of existing irrigation Zones, Special Economic Zones; modernisation of existing irrigation projects ( 2001) projects ( 2001)

Exemption to Bulk Drugs and Pharmaceuticals especially those that are Exemption to Bulk Drugs and Pharmaceuticals especially those that are covered under the Genetically Engineered Organisms ( 2001)covered under the Genetically Engineered Organisms ( 2001)

Exemption on pecuniary consideration ( 2002)Exemption on pecuniary consideration ( 2002) Modernization projects in irrigation sector; pipeline projects –EIA report Modernization projects in irrigation sector; pipeline projects –EIA report

not required( 2002) not required( 2002) strengthening of existing canals with land acquisition upto a maximum strengthening of existing canals with land acquisition upto a maximum

of 20 meters- exempted ( 2003)of 20 meters- exempted ( 2003) Public Hearing exempted for offshore exploration activities ( 2003)Public Hearing exempted for offshore exploration activities ( 2003) EIA exemption to any construction project on area and pecuniary ( 2004)EIA exemption to any construction project on area and pecuniary ( 2004) Expansion or modernization of certain Projects before 1994 Expansion or modernization of certain Projects before 1994

( 2005)( 2005) Temporary Working Permission ( 2005) Temporary Working Permission ( 2005)

EIA 2006EIA 2006

Decentralization of decision to SEIAADecentralization of decision to SEIAA Category A and Category B ( B1, B2) Category A and Category B ( B1, B2)

ProjectsProjects Four Phases- Four Phases-

Screening (only for category B projects)Screening (only for category B projects) ScopingScoping Public consultationPublic consultation AppraisalAppraisal

EIA-2006 –EIA-2006 –New Terms / Approaches New Terms / Approaches

Pre-feasibility report alongwith application for ECPre-feasibility report alongwith application for EC Conceptual plan (construction projects)Conceptual plan (construction projects) Public Consultation with-Local affected persons Public Consultation with-Local affected persons

and others having plausible stakeand others having plausible stake Exemption to B2 projects and activities Exemption to B2 projects and activities Draft EIA & EMP post public consultationDraft EIA & EMP post public consultation Due diligence for expansion or modernisation Due diligence for expansion or modernisation Transfer of ECTransfer of EC General condition (with in 10 km of PAs etc.)General condition (with in 10 km of PAs etc.) Special conditions for industrial estates, EPZ, SEZ, Special conditions for industrial estates, EPZ, SEZ,

bio-tech parks etc. bio-tech parks etc.

GapsGaps EIA- ReportsEIA- Reports Social Assessment ??Social Assessment ?? Box Ticking Approach needs to end:Box Ticking Approach needs to end:

NOC- Pollution Boards – GrantedNOC- Pollution Boards – Granted Consent- ObtainedConsent- Obtained Public hearing- DonePublic hearing- Done

Is pecuniary criteria enough? Does size Is pecuniary criteria enough? Does size warrant exemption?warrant exemption?

Public consultation methods- public Public consultation methods- public consent?consent?

Infrastructure and Environmental Infrastructure and Environmental ComplianceCompliance – Some Difficult Choices – Some Difficult Choices

Roads- The right of way (ROW) versus right to Roads- The right of way (ROW) versus right to environment; Right to livelihood? ( Highways) environment; Right to livelihood? ( Highways)

Infrastructure Development or land grabs? SEZ Infrastructure Development or land grabs? SEZ e.g. Mundra Port? Mangroves, Fisherfolks and e.g. Mundra Port? Mangroves, Fisherfolks and

Shining Gujarat?Shining Gujarat? MUTP and Urban environment due to slums?MUTP and Urban environment due to slums? Hydro power- Run of the River Projects- Is it Hydro power- Run of the River Projects- Is it

really environment friendly? Cumulative effect? really environment friendly? Cumulative effect? River Basin Approach?? Does individual EIAs River Basin Approach?? Does individual EIAs suffice? suffice?

Role of CourtsRole of Courts-Development (vs) Environment-Development (vs) Environment

Role of Courts- A clear trend is emerging- Over Role of Courts- A clear trend is emerging- Over zealous judicial action in micro management of zealous judicial action in micro management of environment issues especially on urban environment issues especially on urban environment not necessarily taking into account environment not necessarily taking into account the impact on local communities;cleaning the the impact on local communities;cleaning the city, removal of slums, hawkers, demolitions of city, removal of slums, hawkers, demolitions of unauthorized colonies) unauthorized colonies)

For large infrastructure projects –A matter of For large infrastructure projects –A matter of Policy argument??. Again not taking into account Policy argument??. Again not taking into account the impact on local communities- ( Sardar the impact on local communities- ( Sardar Sarovar, interlinking of rivers, tehri, SEZ?) Sarovar, interlinking of rivers, tehri, SEZ?)

Futility of Follow up of court Orders?Futility of Follow up of court Orders?

NGT- improving Processes but NGT- improving Processes but what about substantive lawwhat about substantive law

The latest scrutiny is being done by the extremely The latest scrutiny is being done by the extremely active NGT-2010active NGT-2010

On ProcessOn Process On Public HearingOn Public Hearing On Locus (Expanding who is aggrieved)On Locus (Expanding who is aggrieved) On prior informationOn prior information On LimitationOn Limitation Modalities of publishing ECsModalities of publishing ECs On themes ( sand mining)On themes ( sand mining) Still a long way to suggest concrete measures on Still a long way to suggest concrete measures on

substantive law aspects substantive law aspects

EIA some broader concerns EIA some broader concerns

First it is a notification despite nineteen First it is a notification despite nineteen years and therefore a weak legal years and therefore a weak legal instrument, susceptible to change. instrument, susceptible to change.

Evidence of such susceptibility is the fact Evidence of such susceptibility is the fact that it has been amended nineteen times that it has been amended nineteen times in nineteen years.in nineteen years.

A trend analysis suggests the power play A trend analysis suggests the power play or powers at play. or powers at play.

The EIA has reached maturity and The EIA has reached maturity and therefore should attain a legal finality.therefore should attain a legal finality.

EIA some broader concerns EIA some broader concerns What exactly constitutes public consultation.EIA is the What exactly constitutes public consultation.EIA is the

only instrument which attempts to explain public only instrument which attempts to explain public consultation.consultation. Prior information and public hearing including its Prior information and public hearing including its

process. process. Both are contentious, Both are contentious,

the extent to which the information is supplied and the extent to which the information is supplied and what is not supplied; the disparity between the two is what is not supplied; the disparity between the two is quite immense in the garb of trade secret. quite immense in the garb of trade secret.

The method of public hearing, the modalities of The method of public hearing, the modalities of public hearing again is very adhoc and needs serious public hearing again is very adhoc and needs serious rethinking.rethinking.

The quality of report –EIA/EMP is a suspect.The quality of report –EIA/EMP is a suspect. Quality of Accredition/Quality of Accredition/ ConsultantsConsultants

EIA some broader concerns EIA some broader concerns

The categorization of projects and processes The categorization of projects and processes again does not have enough clarity. again does not have enough clarity.

The capacities of people assessing the projects The capacities of people assessing the projects including the scientific committee which is the including the scientific committee which is the expert appraisal committee as well as the expert appraisal committee as well as the statutory authority which is taking the final statutory authority which is taking the final decision. decision.

The infrastructure and support to the authority The infrastructure and support to the authority and the committee, the facilitation is inadequate and the committee, the facilitation is inadequate and needs an overhaul.and needs an overhaul.

Way ForwardWay Forward Time to have a law on EIA -Notifications will not Time to have a law on EIA -Notifications will not

sufficesuffice The concept of Enviro Legal Due Diligence! Going The concept of Enviro Legal Due Diligence! Going

beyond EIAs- A preventive measure is cost beyond EIAs- A preventive measure is cost effective, makes business sense and hopefully effective, makes business sense and hopefully lower the litigation rate. lower the litigation rate.

Enviro Legal Due Diligence ?- More detailed Enviro Legal Due Diligence ?- More detailed feasibility from enviro legal perspective, nationally, feasibility from enviro legal perspective, nationally, locally and globally, preempting conflcits locally and globally, preempting conflcits focus on land use and land category ( forest land, focus on land use and land category ( forest land,

scheduled area, common land); scheduled area, common land); impact on land, impact on land, livelihood,livelihood, formal titles, non formal claims, landless…a more detailed formal titles, non formal claims, landless…a more detailed

menu of options to be consideredmenu of options to be considered

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sanjay@eldfindia.com www.eldfindia.org