ANALYSIS OF THE DRAFT EIA NOTIFICATION 2020
Abstract:
This paper discusses the recently proposed Environmental Impact Assessment (EIA) draft notification issued by the Government of India during the COVID-19 pandemic. Climate change as a challenge presents a responsibility issue to countries, which means they should not only say but prove that climate change mitigation is the central element of their national policymaking. Being aware of its accountability towards climate change mitigation, India positively reacted by declaring a constitutional safeguard for the environment through the constitution. Environmental Impact Assessment (EIA) plays a crucial role in environmental governance, ensuring that development activities are undertaken in a manner which is consistent with ecological sustainability. In India, the EIA system has been developed through a series of executive notifications under the Environment (Protection) Act, 1986, where the EIA Notification of 2006 has been the mainstay of the environmental clearance process. The Ministry of Environment, Forest and Climate Change, in 2020, issued a Draft EIA Notification, which suggested significant changes mainly to simplify the clearance process. Nevertheless, the Draft EIA Notification, 2020 was heavily criticised because it would weaken the environmental safeguards, reduce public participation, and give a legal cover to post, facto environmental clearances. The UNEP definition of Environmental Impact Assessment (EIA) is a tool that helps identify various impacts, including environmental, social, and economic effects of a project before reaching a decision. Through this paper, the author will discuss the critical analysis of the Environment Impact Assessment 2020 in detail, including key highlights and important points mentioned in the draft notification.
Keywords:
Environmental Impact Assessment (EIA), Draft EIA notification 2020, Environmental governance, public participation, Sustainable development.
Introduction:
On 23 March 2020, the Indian Ministry of Environment, Forest, and Climate Change (hereinafter ‘the
Ministry’) issued Draft Environmental Impact Assessment Notification, 2020 (hereinafter the ‘Draft EIA Notification’), which is intended to replace the existing EIA Notification, 2006. The stated intent of the Draft EIA Notification is to consolidate the incremental amendments to the 2006 notification, streamline and rationalise processes and implement decisions of various courts. The Draft EIA Notification was placed in the public domain with a period of 60 days for public comments. [1] Despite the overwhelming public support to have a much longer time for public consultation, the period for consultation was only extended till 30 June 2020. But when the entire country was locked down due to COVID, 19, the Delhi High Court held that even the second extension was not sufficient for an effective public consultation and hence the last date for receiving objections or suggestions was finally extended till 11 August 2020. [2]
Despite the goals it announced, the Draft EIA Notification, 2020 has been heavily criticised for supposedly lowering environmental protections. One major concern is that the proposal allows for post facto environmental clearances, which means approval could be sought after the project is implemented. Significant exemptions from public consultation and lax compliance mechanisms have also been cited as concerns. These alterations provoke serious legal and constitutional issues about compliance with the precautionary principle, the public trust doctrine, and sustainable development.
The Draft EIA Notification states that cognisance of a violation will only be considered through a report by the government or the project developer or on a suo motu basis, completely excluding any role for public participation in decision-making. It is concluded that if enacted in its current form, the Draft EIA Notification will have severe consequences for environmental governance in India by negating the precautionary principle, diluting the due diligence process, and strengthening the discretionary power of the government while restraining public engagement in safeguarding the environment. In addition, Draft Notification is contrary to the newly emerging principle of non-regression. [3]
Research Methodology:
The present work follows a doctrinal and analytical research methodology. First hand legal sources are the Environment (Protection) Act, 1986, the Draft EIA Notification, 2020, and the Supreme Court of India decisions. Second-hand sources are academic articles, law journals, policy reports, and publications of environmental research institutions. Moreover, the study uses a comparative analysis of judicial trends to evaluate whether it is legally acceptable to grant environmental clearances after the fact. The research is both descriptive and critical, and it is intended to examine the Draft Notification from the standpoint of constitutional principles and environmental law.
Review of Literature:
Scholarly discussions on Environmental Impact Assessment in India have always identified EIA as a fundamental instrument of environmental governance and sustainable development. Researchers in the field have emphasised that the EIA Notification 2006, although not completely without flaws, set out a proper framework for prior appraisal and public involvement. It has been pointed out that a public hearing under the EIA procedure is an essential channel through which local knowledge can be harnessed and community level environmental issues can be addressed.
Environmental Impact Assessment (EIA) emerged in the 1970s as a proactive mechanism to evaluate and mitigate the potential adverse environmental impacts of developmental projects. The concept was first institutionalized through the National Environmental Policy Act (NEPA) of 1969 in the United States, which aimed to ensure sustainable development by incorporating environmental considerations into decision-making processes. [4]
EIA is defined as a systematic process that evaluates the potential environmental, social, and economic impacts of a proposed project or activity. According to Wood (1993), the primary purpose of EIA is to ensure that decision-makers consider environmental consequences before approving development
proposals. [5]
Major parts of the academic critiques on the Draft EIA Notification 2020 revolve around the fact that it omits the precautionary principle. Some law experts maintain that allowing environmental clearances after the damage has been done is a complete disregard of the purpose of an EIA, which is to avoid damage to the environment, first and foremost. In line with this, an analysis carried out by some environmental think tanks shows that the act of regularising violations implicates the creation of moral hazards and thus the weakening of regulatory deterrence.
There have been more criticisms from civil society through their reports aimed at the Draft Notification, centring on a reduction in public participation and the weakening of monitoring mechanisms. Comparative studies of international EIA.
Overview of Draft Environment Impact Assessment (EIA) Notification 2020:
The Draft Environment Impact Assessment (EIA) Notification 2020 proposes a paradigm shift in India’s environmental regulatory framework, moving from the “Precautionary Principle” established under the Environment (Protection) Act, 1986[6] , to a “Pollute and Pay” model. The core conflict arises between the statutory mandate of the 1986 Act, which was enacted to implement decisions from the Stockholm Conference for the protection of the human environment , and the administrative attempt in the 2020 Draft to regularise violations through post-facto clearances.
The main legal issue is stirred by the contradictory nature between the statutory directive under Section 3 of the Environment (Protection) Act, 1986 and the regulatory framework proposed in the Draft Environment Impact Assessment Notification, 2020. Section 3 empowers the Central Government with very extensive authority to implement any necessary measures for the protection and improvement of the environment, thereby clearly reflecting a preventive and precautionary approach.[7] Nevertheless, the Draft Notification, 2020 provides for the possibility of issuing post facto Environmental Clearance to projects that have not obtained prior approval but have already started their operations, the so-called post facto Environmental Clearance. This change weakens the ex-ante environmental scrutiny that is planned under the environmental regulatory regime and has been a subject of the heated judicial review in recent Supreme Court rulings, where post facto clearances have been considered as inconsistent with the principles of sustainable development and environmental rule of law.
Key Highlights of Draft EIA 2020:
The Draft EIA 2020 has several key highlights that aim to replace the 2006 norms and bring a new perspective to industrial projects and sustainable development:
- Rule 5(1) – Projects are divided into three categories – Category A, B1, and B2. The determination of the category is based on the environmental impact that the project is potentially seen as having.
- Rule 4 – Two kinds of approval are introduced by the EIA 2020. The first one is Prior Environment Clearance (EC), which, depending on the project category, can be obtained from the ministry or the regulatory body. Secondly, Prior Environment Permission (EP) for certain B2 category of projects, as specified in the EIA 2020.
- Rule 14 – Projects such as those relating to irrigation, halogen production, chemical fertilisers, etc. and all other projects classified as B2 are exempted from public consultation, barring any scrutiny.
- The Draft EIA 2020 also brings in Ex-Post Facto clearance for projects going back to the March 2017 Notification, which legitimised all environmental violations. This essentially means that industrial units and other projects that are operating as of now, without any environmental clearance, can now submit a remedial plan to turn their illegal project into a legal one. [8]
Evolution of EIA Jurisprudence:
The development of Environmental Impact Assessment (EIA) jurisprudence in India shows a slow but disputed change of regulatory and judicial approaches. The central government got the power to impose regulations on environmentally harmful activities through the Environment (Protection) Act, 1986, which, besides offering a protective cover to the environment, laid down the legal basis for EIA. 9
Before 2020, the EIA Notification, 2006 made a prior Environmental Clearance (EC) a must for any project from its very start, and the judiciary was always in favour of such a standpoint that projects without this clearance were illegal.
Most notably, the Supreme Court took a bold step in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati [9] , where it emphatically stated that it was “anathema” to environmental law to grant ex post facto (after the event) environmental clearances, thus underscoring the precautionary principle. This judicial position led to a regulatory turnaround as the Draft EIA Notification, 2020, not only hinted at post facto clearances but also placed greater restrictions on public consultation.
On the other hand, the rulings in cases such as Pahwa Plastics Pvt. Ltd. v. Dastak NGO [10] and D. Swamy v. State of Tamil Nadu [11] indicate that recently the Court has abandoned its tough stance and post facto environmental clearances have been made available to exceptional circumstances only, thus partially diverging from the initial.
The Legality of “Post-Facto” Environmental Clearance:
The most contentious aspect of the Draft EIA 2020 is the proposal to regularise projects that started without prior EC. This directly contradicts the “Precautionary Principle”, which requires anticipating and preventing harm before it occurs. The “Anathema” Doctrine in the landmark judgment of Alembic Pharmaceuticals Ltd.
v. Rohit Prajapati, the Supreme Court delivered a stinging critique of post-facto clearances.[12] The Court held that ex post facto clearance is “anathema” to environmental jurisprudence. The reasoning is that EC requires careful application of the mind before activity begins. Allowing post-facto clearance essentially condones the operation of industrial activities without safeguards. The Draft’s attempt to normalise post-facto clearance violates this principle, as it removes the deterrent against illegal commencement of projects.
The “Exceptional Circumstances” Doctrine. However, subsequent judgments have created a legal opening that the Draft EIA 2020 seems to leverage. In Pahwa Plastics Pvt. Ltd. v. Dastak NGO14 , the Supreme Court held that while ex post facto EC should not be granted routinely, it can be allowed in “exceptional circumstances” where the adverse consequences of closing a unit (economic loss, employment) outweigh the benefits, provided the unit conforms to pollution norms.
In D. Swamy v. Karnataka State Pollution Control Board [13] , The Court reiterated that the Environment (Protection) Act, 1986, does not explicitly prohibit ex post facto EC. And in Electrosteel Steels Ltd16 ., the Court noted that ex post facto clearance should not be declined with “pedantic rigidity” if it leads to the closure of running factories, but it must be strictly in accordance with law.
While Pahwa Plastics and D. Swamy provide a safety valve for existing violations, the Draft EIA 2020 transforms this judicial “exception” into a statutory “norm” available to all violators upon payment of a fine.
This commodifies environmental compliance, potentially violating the “Polluter Pays” principle by turning it into “Pay to Pollute.”
Dilution of Public Consultation & Decision Making:
The Draft EIA 2020 has been critiqued for reducing the scope of public hearings and exempting several categories of projects. In Alembic Pharmaceuticals, the Supreme Court emphasised that requirements such as “conducting a public hearing, screening, scoping and appraisal” are essential components of the decision-making process. [14] By bypassing these steps for “regularisation” or specific project categories, the Draft potentially renders the decision-making process arbitrary and uninformed, violating the procedural due process mandated by the EPA 1986.
The Draft EIA Notification, 2020, seems to have raised major questions on whether it is ultra vires the parent legislation, i.e. Environment (Protection) Act, 1986. Section 3 of the Act gives the Central Government very extensive authority to take such steps as are necessary for the protection and improvement of the environment, which, therefore, directly implies the provision of a preventive and remedial regime.
Nevertheless, a notification issued as a piece of subordinate legislation, which is aimed at institutionalising environmental violations by post facto Environmental Clearances, in a way defeats this statutory objective. By legalising such projects which start operations without prior consent, the draft notification is basically taking a step back, and hence, totally contradicting the trend of environmental protection under the Act.
The Supreme Court, in Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, recognised that administrative circulars or notifications cannot weaken or override the statutory mandate of environmental protection, thereby upholding the principle that delegated legislation must be confined to the limits of the parent statute. Hence, the proposed measures are evidently at odds with the Environment (Protection) Act, 1986, and they might be challenged based on being ultra vires.
Suggestion:
Suggestions for this draft would be to remove such anthemia rules. The government had made a feeble attempt to extend the deadline for the invitation of objections to this draft. If one wishes to see a true step towards sustainable goals, one must be bold enough to put such objections/criticisms on record. [15]
To begin with, the clause that allows for environmental clearance after the fact should be eliminated from the Draft EIA Notification, 2020, since this provision is contrary to environmental regulations that are aimed at being preventive, and it gives a wrong signal of non-compliance being tolerated.
Secondly, the mechanisms for public consultation ought to be made more comprehensive rather than limited. It must be ensured that public hearings are held mandatorily, sufficient time is given to be notified, and people have easy access to grievance redressal mechanisms, especially when it comes to projects in ecologically sensitive areas that directly affect local communities.
Thirdly, the provisions relating to compliance and monitoring should be made more robust by requiring independent third-party audits and increasing the frequency of compliance reporting. It is a matter of concern that there is dependence solely on self certification by project proponents, which is not a strong source of accountability.
Fourthly, changes allowed to certain categories of projects should be very specific and subject to assessments of the overall impact of changes. Besides the immediate effects, environmental decision-making should also consider the implications of the decisions made on the environment for the future and in aggregate.
Finally, to make the environmental decision-making process more transparent, it is necessary to stipulate definite criteria for the nomination of members of an expert appraisal committee and to incorporate measures that can detect and prevent any conflicts of interest.
Conclusion:
The Draft EIA Notification, 2020, marks a significant shift in India’s environmental regulatory landscape. The objective of administrative efficiency should not be seen as overriding, as environmental protection remains a constitutional obligation under Article 21 of the Constitution. The analysis showed that the Draft Notification weakens the major environmental provisions by allowing post facto clearances, limiting public participation, and undermining compliance mechanisms.
Three problematic areas were identified: ex post facto clearance, reduced space for public consultation, and the exemption from public consultation granted to transboundary projects. The Draft EIA Notification attempts to institutionalise the ex post facto clearance go against the basic premises of EIA and would deprive the opportunity for incorporating suitable and adequate safeguards, creating the prospect for irreparable environmental and social damage. The Draft EIA Notification has not only exempted a long list of projects, ranging from building, construction, and offshore gas to modernisation of irrigation projects, from public consultation, but it has also reduced the period of public hearing from 30 to 20 days. When periods of consultation have been subject to judicial decisions in India, the judiciary has repeatedly highlighted the need for adequate time for public consultation. In light of the socio-economic circumstances and geographical locations of the vulnerable populations affected by the projects, restricting the consultation period to 20 days cannot be considered reasonable and would practically exclude many groups from the
consultation. [16]
The Draft EIA Notification, 2020, in its present form, fails to align with the precautionary principle and sustainable development objectives. It is essential for a reformed EIA framework to really enhance environmental scrutiny before a decision, democratic participation, and institutional accountability. These are the only ways India can achieve a balance between developmental aspirations and environmental sustainability.
Kavita Yadav
University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, New Delhi.
[1] Ministry of Env’t, Forest & Climate Change, Draft Environment Impact Assessment Notification, 2020, S.O. 1199(E), Gazette of India, Extraordinary, pt. II, sec. 3(ii) (Mar. 23, 2020).
[2] Vikrant Singh Tongad v. Union of India, W.P. (C) No. 3747 of 2020 (Del. H.C. June 30, 2020).
[3] Stellina Jolly & Siddharth Singh, Environmental Impact Assessment Draft Notification 2020, India: A Critique, Chinese J. Envtl. L. (July 8, 2021).
[4] Frederick Pollock & Frederic William Maitland, The History Of English Law 205–06 (2d Ed. 1911).
[5] Meenu M.B., Environmental Impact Assessment (EIA): A Pillar for Sustainable Development, 6 Indian J. L. & Legal Rsch. 2944 (2024).
[6] The Environment (Protection) Act, 1986, pmbl., INDIA CODE (1986).
[7] The Environment (Protection) Act, 1986, No. 29 of 1986, § 3(1), INDIA CODE (1986).
[8] Abhishek Iyer, Critical Analysis of Draft Environment Impact Assessment (EIA), 2020: Pro Facilitator of Development?, LEX TERRA: NLUJA’S ENVIRO-LEGAL WEBZINE, Issue 34, Sept. 2021, at 3. 9 The Environment (Protection) Act, 1986, pmbl., INDIA CODE (1986).
[9] Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, (2020) 17 S.C.C. 157 (India).
[10] Pahwa Plastics Pvt. Ltd. v. Dastak NGO, (2022) 7 S.C.C. 759 (India).
[11] D. Swamy v. State of Tamil Nadu, (2011) 3 S.C.C. 585 (India).
[12] Id. 14 Id.
[13] D. Swamy v. Karnataka State Pollution Control Board, 2022 SCC OnLine SC 1189 (India). 16 Electrosteel Steels Ltd. v. Union of India & Ors., (2021) 4 S.C.C. 387 (India).
[14] Id.
[15] The Concept of Environmental Impact Assessment, 4 Int’l J.L. Mgmt. & Human. 902 (2021).
[16] Stellina Jolly & Siddharth Singh, Environmental Impact Assessment Draft Notification 2020, India: A Critique, Chinese J. Envtl. L. (July 8, 2021).