Tempting ecological fate under MoEFCC’s new star rating regime.
On 17 January 2022, the Ministry of Environment, Forest and Climate Change (MoEFCC) issued an office memorandum (OM) laying down the criteria which would be followed for ‘rating’ the functioning of State Level Environment Impact Assessment Authorities (SEIAAs) across the country. The SEIAAs are constituted under the Environment Impact Assessment Notification, 2006, along with State Expert Appraisal Committees (SEACs).[1] SEIAAs are responsible for deciding whether to approve or reject EC applications of over 90% of the projects in India.[2] The OM issued by MoEFCC seeks to facilitate the ‘ease of doing business’, by awarding higher points to SEIAAs that grant environmental clearances (ECs) in less than 80 days. SEIAAs that undertake site visits or seek essential details more than once during the assessment process will be given lesser points. This OM is deeply problematic for India’s environment and should be withdrawn immediately for three main reasons.
First, the OM compromises the functioning of SEIAAs (and the SEACs that assist them) and runs the risk of increasing the incidence of industrial disasters. Over the last two years India has witnessed a rise in the number of industrial disasters, which some believe coincide with the start of the period of dilution of regulations under the guise of ‘ease of doing business’. The contamination of the Shambhavi river from fly ash produced by Udupi Power Corporation was attributed to the failure of the Karnataka SEIAA to issue adequate EC conditions and comply with the process prescribed in the EIA Notification with regard to public consultations.[3] The explosion at Yashashvi Rasayan in Gujarat which led to the death of eleven persons and injured about hundred, and the flooding in the river Subarnarekha, West Bengal from large scale mechanised sand mining were both partly chalked up to inadequate post EC monitoring of the site. Repeated dilution of environmental standards have weakened the regulatory framework, resulting in these industrial disasters. The new OM will only exacerbate the situation. It encourages SEIAAs to expedite the EIA process by compromising on site visits, essential additional information regarding the proposed project, and rushing the issuance of terms of reference (ToRs), as such reducing the scrutiny and potentially increasing the risk of industrial disasters. While initiatives to facilitate the ease of doing business may be required to incentivise investments in some situations, they ‘cannot be on the graves of human beings’. The EIA process is the manifestation of the ‘preventive principle’ in India since it seeks to anticipate and identify potential harms to human health and the environment and mandate ameliorative measures to address them. The parent Act, being the Environment (Protection) Act, 1986, was itself the result of an industrial disaster (Bhopal Gas Tragedy) and was enacted with the view to prevent such accidents in the future.[4] The OM, with its star rating incentives for SEIAAs that dispose of EC applications in a short timeframe, defeats the purpose of the EP Act and the EIA process.
Second, the EIA process was never meant to be an expedited one in the interest of business; in fact, the courts have repeatedly cautioned against the rushed grant of ECs. The Supreme Court has categorically directed that applications for EC must be subject to a ‘detailed scrutiny’ of the information provided by the project proponent. This includes carrying out an analysis of the EIA Report, proceedings of the public consultation (where applicable) and other project related documents, and not merely being bound by the information provided by the project proponent. In the case concerning the grant of EC to the greenfield airport at Mopa in Goa, the project proponents deliberately failed to disclose critical information about the site. Columns requiring information on forest land, human habitations and wildlife were left blank in the EC application, despite the site being nestled in the Western Ghats – a ‘global biodiversity hotspot’. As a consequence of this non-disclosure, the ToR for the EIA Report did not include the submission of additional assessments such as avi-faunal studies or the impact of the project on Ecologically Sensitive Areas. It was only during the proceedings before the Supreme Court that details about the ecologically sensitive nature of the project site was brought to light. It is clear from the Supreme Court's judgment that the Expert Appraisal Committee[5] had taken the submissions of the project proponent in the EC application to be the gospel truth, without exercising its right to carry out or commission a visit of the project site prior to formulating the ToR. Undertaking such site visits to verify the information in the EIA Report or requiring additional information from the project proponent cannot be viewed as an impediment to economic development. These are necessary for making an informed decision on the grant of EC. The OM promotes reduced scrutiny by discouraging SEIAAs from undertaking such site visits and will undoubtedly lead to adverse consequences on the ecology.
Finally, the OM might be in the interest of facilitating ease of doing ‘business’ but it certainly isn’t in the interest of ‘development’. The OM gives no indication of incentives - financial or otherwise - being provided to states that secure a higher ranking. Therefore, it is entirely probable that the ranking is primarily to serve as an indication for new and expanding businesses on which states provide the most favourable conditions for their operations. While this rating system offers businesses the opportunity to 'select' an SEIAA, the same luxury of choice does not exist for the worker community. As a result of the OM, states in which SEIAAs undertake a detailed assessment of the EC proposal or carry out site inspections to verify information will be penalised with a lower rating, likely leading to decreased employment opportunities as a consequence of diverted businesses. The OM will create an unnecessary sense of competition between states in the race to grant ECs in short durations – creating unfair economic outcomes.
It is clear that the OM if implemented by the MOEFCC would not only have adverse consequences on the effective functioning of the SEIAAs as environmental regulatory bodies but also on the life and livelihood of people and the surrounding ecology. For these reasons, the OM must be withdrawn immediately.
[1] State Expert Appraisal Committees are constituted at the State or Union Territory Level to screen, scope and appraise Category ‘B’ projects. The SEIAAs decide applications for EC based on the SEAC's recommendations.
[2] As per information available on http://environmentclearance.nic.in/ a total of 46,217 proposals have been submitted for grant of EC to the EAC (3,494) and SEIAAs (42,723) from 4 July 2014 till date.
[3] Janajagrithi Samithi v. Union of India and Ors. 2019 SCC OnLine NGT 1739.
[4] Jairam Ramesh, Green Signals: Ecology, Growth, and Democracy in India (Oxford University Press 2015).
[5] Statutory bodies created at the Central Government under the Environment Impact Assessment Notification, 2006 to screen, scope and appraise Category ‘A’ projects.
(Environmentality is a collection of ideas, perspectives, and commentary by researchers at the Initiative on Climate, Energy and Environment, Centre for Policy Research, New Delhi. Views and opinions expressed in this blog are solely those of the authors. They do not represent institutional views.)
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