1. EIA in India-Challenges for environment and development- the court’s response Sanjay Upadhyay Advocate Supreme Court Managing Partner Enviro Legal Defence Firm August 2013

2. EIA in India-Challenges for environment and development- the court’s response • EIA- Is it adequate? • EIA Trends • EIA-2006 • Gaps • Infrastructure and Environmental Compliance – Some Examples • Role of Courts? • NGT • Some Broader Concerns on EIA • Way Forward

3. EIA – Is the process adequate? • What is EIA ? • Key objective - To integrate the environmental concerns in the developmental activities in its initiation stage and further integrate environmental concerns and mitigation measures in project development. • Screening; Scoping and consideration of alternatives; Baseline data collection; Impact prediction; Assessment of alternatives, delineation of mitigation measures and environmental impact statement; Public (Hearing) Consultation ; Decision making and Monitoring the clearance conditions

4. Trends of EIA amendments • Public Hearing ( Exempted) in respect of certain classes (notified/designated industrial areas/industrial estates or industries under the jurisdiction of industrial development authorities; widening and strengthening of highways; mining projects (major minerals) with lease area up to twenty five hectares, units located in Export Processing Zones, Special Economic Zones; modernisation of existing irrigation projects ( 2001) • Exemption to Bulk Drugs and Pharmaceuticals especially those that are covered under the Genetically Engineered Organisms ( 2001) • Exemption on pecuniary consideration ( 2002) • Modernization projects in irrigation sector; pipeline projects –EIA report not required( 2002) • strengthening of existing canals with land acquisition upto a maximum of 20 meters- exempted ( 2003) • Public Hearing exempted for offshore exploration activities ( 2003) • EIA exemption to any construction project on area and pecuniary ( 2004) • Expansion or modernization of certain Projects before 1994 ( 2005) • Temporary Working Permission ( 2005)

5. EIA 2006 • Decentralization of decision to SEIAA • Category A and Category B ( B1, B2) Projects • Four Phases- • Screening (only for category B projects) • Scoping • Public consultation • Appraisal

6. EIA-2006 –New Terms / Approaches • Pre-feasibility report alongwith application for EC • Conceptual plan (construction projects) • Public Consultation with-Local affected persons and others having plausible stake • Exemption to B2 projects and activities • Draft EIA & EMP post public consultation • Due diligence for expansion or modernisation • Transfer of EC • General condition (with in 10 km of PAs etc.) • Special conditions for industrial estates, EPZ, SEZ, bio-tech parks etc.

7. Gaps • EIA- Reports • Social Assessment ?? • Box Ticking Approach needs to end: • NOC- Pollution Boards – Granted • Consent- Obtained • Public hearing- Done • Is pecuniary criteria enough? Does size warrant exemption? • Public consultation methods- public consent?

8. Infrastructure and Environmental Compliance – Some Difficult Choices • Roads- The right of way (ROW) versus right to environment; Right to livelihood? ( Highways) • Infrastructure Development or land grabs? SEZ • e.g. Mundra Port? Mangroves, Fisherfolks and Shining Gujarat? • MUTP and Urban environment due to slums? • Hydro power- Run of the River Projects- Is it really environment friendly? Cumulative effect? River Basin Approach?? Does individual EIAs suffice?

9. Role of Courts-Development (vs) Environment • Role of Courts- A clear trend is emerging- Over zealous judicial action in micro management of environment issues especially on urban environment not necessarily taking into account the impact on local communities;cleaning the city, removal of slums, hawkers, demolitions of unauthorized colonies) • For large infrastructure projects –A matter of Policy argument??. Again not taking into account the impact on local communities- ( SardarSarovar, interlinking of rivers, tehri, SEZ?) • Futility of Follow up of court Orders?

10. NGT- improving Processes but what about substantive law • The latest scrutiny is being done by the extremely active NGT-2010 • On Process • On Public Hearing • On Locus (Expanding who is aggrieved) • On prior information • On Limitation • Modalities of publishing ECs • On themes ( sand mining) • Still a long way to suggest concrete measures on substantive law aspects

11. EIA some broader concerns • First it is a notification despite nineteen years and therefore a weak legal instrument, susceptible to change. • Evidence of such susceptibility is the fact that it has been amended nineteen times in nineteen years. • A trend analysis suggests the power play or powers at play. • The EIA has reached maturity and therefore should attain a legal finality.

12. EIA some broader concerns • What exactly constitutes public consultation.EIA is the only instrument which attempts to explain public consultation. • Prior information and public hearing including its process. • Both are contentious, • the extent to which the information is supplied and what is not supplied; the disparity between the two is quite immense in the garb of trade secret. • The method of public hearing, the modalities of public hearing again is very adhoc and needs serious rethinking. • The quality of report –EIA/EMP is a suspect. • Quality of Accredition/ Consultants

13. EIA some broader concerns • The categorization of projects and processes again does not have enough clarity. • The capacities of people assessing the projects including the scientific committee which is the expert appraisal committee as well as the statutory authority which is taking the final decision. • The infrastructure and support to the authority and the committee, the facilitation is inadequate and needs an overhaul.

14. Way Forward • Time to have a law on EIA -Notifications will not suffice • The concept of Enviro Legal Due Diligence! Going beyond EIAs- A preventive measure is cost effective, makes business sense and hopefully lower the litigation rate. • Enviro Legal Due Diligence ?- More detailed feasibility from enviro legal perspective, nationally, locally and globally, preempting conflcits • focus on land use and land category ( forest land, scheduled area, common land); • impact on land, • livelihood, • formal titles, non formal claims, landless…a more detailed menu of options to be considered

15. THANK YOU +91-9810298530 sanjay@eldfindia.com www.eldfindia.org