No clearance and no consultation for hazardous industries in draft EIA Act, 2020

Madras High Court on August 18 refused to reopen Sterlite Copper Plant in Tuticorin, citing gross environmental violations.

It will be recalled that 13 people were shot dead in May 2018, on the 100th day of a public protest against the polluting plant, when police opened fire on protesters from point blank range. The purpose was to put an end to the protest once and for all.

Despite the outrage that followed, the Company managed to receive a favourable order from the National Green Tribunal in December 2018 to reopen the plant, only to be struck down by the Supreme Court on grounds of jurisdiction.

The Supreme Court had earlier penalised Vedanta Group in 2016 and imposed a fine of Rs 100 crores for pollution, violation and mis-representation between 1996 and 2012, before they were permitted to operate. Sterlite Copper CEO has now been reported as saying that it will approach the Supreme Court to challenge the closure order given by the Madras High Court.

It is too early to speculate what the Supreme Court will do once the company petitions it. But for the time being, people close to the plant in Tuticorin, who have faced severe environmental and health hazards because of this highly polluting copper plant, have heaved a sigh of relief.

It is important to remember this particular case in the context of the controversy over the EIA Draft of 2020 and the objections to it because it remains a classic example of the state of environmental governance in the country. It is also a reflection at the same time of our politics and dynamics of rent seeking in cases of environmental clearance, judicial outreach and ignorance. EIA Draft 2020 clearly aims at creating more Tuticorins in the country, with no recourse to the people under the law.

Before we proceed, we need to take a quick look at the genesis of Environmental Laws in our country and how Environmental Impact Assessment laws and provisions have evolved.

Bhopal Gas Tragedy of 1984, one of the worst industrial disasters of the world, killed thousands in the areas surrounding the Union Carbide plant and rendered lakhs of people to cope with diseases and morbidity for decades thereafter. Many were crippled for life.

This tragedy triggered the promulgation of Environment Protection Act of 1986, based on sustainable development, the ‘polluter pays’ principle and the need for preventive measures. EIA provisions were developed in 1994, for proactively assessing the likely impact of certain projects and methods to mitigate, reorient or terminate potentially harmful projects or provision. It evolved over the years and was notified again in September 2006, as a planning tool to integrate environmental concerns from the conception stage of a project and became an informed decision-making tool.

But irony, as the saying goes, dies a thousand deaths when the Environment Minister Prakash Javadekar also happens to be the Minister for Heavy Industries.

Mr. Prakash Javadekar exults in saying that before 2014, environmental clearances from the central government took on an average 640 days. Just as the NDA government was finishing its last term in 2019, he claims, the number of days taken for the clearance had come down to108 days and that he aims at bringing that down to 60 days in the near future.

Environment Impact Assessment Act Draft 2020 goes even beyond the goal he has set for himself! No environmental clearance will be needed at all, the draft says, for over 25 red and orange category industries. They can commence construction without any Expert Appraisal Committee (EAC) approval or any public consultation either.

EIA draft 2020 also makes post-facto Environmental Clearance (ECs) a permanent feature of environmental governance, which means the onus of acceptance of violation lies on the polluter and the polluter can seek clearance after it has commenced work and has already caused environmental damages.

The list of industries allowed to commence projects without EIA clearance include some of the most dangerous and high impact industries such as production of chemicals and acids, cement plants, oil exploration, river valley projects and mining among others.

The expert committee report tabled in Parliament meanwhile states that iron ore reserves in the country will last for only 40 years. But mining licenses and leases proposed to be issued under the draft amendment will be valid for 50 years, twenty years more from the existing 30 years. The amendment also allows mining below five hectares without requirement of an EAC approval, which will leave our rivers and the floodplains to be plundered for sand and other resources.

Another shocking provision in this draft amendment Act is with regard to expansion criterion of certain category of large-scale projects (Category A and B1). They are being allowed to expand up to 50% of their current capacity without any public consultation or fresh environmental approvals.

It also states that large solar parks, defence projects and industrial estates don't require to undergo any EIA process, in ‘national interest’.

The proposed amendment also states that red category projects, high capacity high impact projects can now commence within 5 kms of protected areas and ecologically sensitive areas, which was earlier restricted to beyond a 10km radius.

Civil Society participation and citizen engagement in Environment Impact Assessment process has been considered extremely crucial in environmental governance and democracy. However, the critical tool of public consultation has been withdrawn from almost all categories of polluting and high impact projects. Apart from taking them off the pre-project consultation process, they have also been denied any role in taking cognizance of any violations or raising a voice against a polluting and violating industry.

It would be deemed a ‘criminal act’ to protest against any future ‘Sterlite’ like factory, despite the factory affecting your air, water and community health. The current notification also states that in case of certain projects that still has public consultation norm applicable, only material environment concerns can be shared, not any other linked social impact or long term health concerns.

In a nutshell, the EIA Draft 2020 is not just erroneous at some levels, but in fact it's a compendium of all possible violations one could imagine vis-à-vis environmental governance in the country. Ease of doing business can’t take precedence over concerns of public health and ecology.

India ranks 177 out of 180 countries in world’s Environment Protection Index, in 2018, slipping 36 places in just a matter of 2 years (2016). We need to strengthen our existing laws and provisions rather than diluting them further.

Sterlite Copper Plant is a glaring example in front of us. Environmental Clearance was offered to the company in 1995 without any EIA. Despite finding incriminating evidence of how the plant had polluted the Gulf of Munnar, it was allowed to increase its production of copper by two and a half fold without any valid permission from the State Pollution Control Board.

The plant found its way around High Courts and Supreme Court of India for over three decades and remained operational before being shut down after the shooting of 13 people in May 2018.

If Sterlite Copper could come this far, despite having a stringent law and judiciary guarding the law in the country, what will be the state of affairs if there is no law to stop them from doing what they do best?

‘New’ India needs to be healthy, just and equitable, and not just a crony capitalist country as imagined in EIA Draft 2020.

(The author is a Delhi based environmental activist and writer. Views are personal.)