Keywords: Environment Impact Assessment, Sustainable Development, Strategic Environment Assessment, Public Participation
‘Earth provides enough to satisfy every man’s need; but not every man’s greed’ -Mahatma Gandhi[i]
The present mechanism that prevails in India for clearing environmental projects through environmental impact assessments, defeats the entire purpose of this vindicatory exercise, which is based on the principle of furthering sustainable development. The process of assessment of the environmental impacts is the key ingredient in taking decisions pertaining to environmental clearance, but the inadequacies of the Environment Impact Assessment (EIA) in India has thwarted the entire objective of an ecological, economic and social cost – benefit analysis for sustainable development. The procedure laid down for the functioning of this quintessential process consists of a number of fallacies which are counterproductive to creating a fine balance between growth and sustainability. This paper analyses the existential and eventual shortcomings and the impacts on society, which result out of strict adherence to a perceived just process, as the only means to achieve economic growth as well as societal harmony. The means employed in India to achieve the rationale of environmental sustainability is defeated when the EIA norms circumvent established international practices.
The EIA procedure in India reflects the change from red tapism to green tapism, with hindrance to ecology as well as the needs of the industry. Thus the need for the shift from the present system of environmental assessment can be made out from the inherent lacunae that persist within the bureaucratic system. The plethora of questions that the EIA raises eventually can be discerned into realizing that the machinery put in place to achieve its said purpose of rational decision making is following an ineffective method of assessment, on which depend the livelihood and future of the society. The urgency is not only with regard to a shift from EIA’s, but a structural reform in their functioning and the integration of practices that exist throughout the world in stark contrast to the EIA mechanism prevalent in the Indian scenario.
The Evolution of EIA Mechanism in India:
The concern for environmental protection in India can be traced back to the ancient period, where it was the dharma of the individual to protect nature.[ii] The very principle of sustainable development, finds mention in the Atharva Veda, where the sages chanted
What of thee I dig out
Let that quickly grow over
Let me not hit thy vital, or
The quintessential issues, which culminate into a challenge of reconciliation, concern the values of economic growth, social vitality and ecological integrity.[iv]The compromise between the right to development and the need for environmental conservation can be disembarked through effective EIA’s. The emerging concept of international standards, by which such degradations is to be controlled and monitored,[v] has lent credibility to the anticipation of environmental harm, rather than its prospective prevention. In its original form the Indian constitution contained no provision relating to the protection of the environment.[vi] The fourty second amendment to the Indian constitution, after the Stockholm declaration, introduced provisions relating to the protection of the environment. The Directive Principles of State Policy provide for the duty of the State to protect and improve the environment and to safeguard the forest and wildlife of the country.[vii] The duty is also cast upon the citizens whereby every citizen has the fundamental duty to protect and improve the natural environment.[viii] The demand for environmental protection has mostly arisen out of political necessity rather than the mass realization of protecting the ecosystem. The Environment Protection Act of 1986 emerged as a result of an industrial disaster involving Union Carbide in Bhopal.[ix] Sustainable development has been defined as ‘what type or extent or development can take place, which can be sustained by the ecology with or without mitigation.’[x]The competing interests of development and the conservation of the environment, require a harmonization, of the approach to sustainable development. The reconciliatory mechanism required to balance these divergent interests, has evolved in the form of an Environment Impact Assessment (EIA). The legal conception of sustainable development[xi] and the EIA apparatus can be summarized as a precautionary principle, where it is better to err on the side of precaution and prevent irreversible environmental harm.[xii]
The Monopolistic allocation of power to the Ministry of Environment and Forests : The apparent flaw and the need for EIA:
The National Environment Policy Act (NEPA), 1969 in the United States introduced the concept of Environment Impact Assessment (EIA)[xiii] by facilitating its implementation through a legislative instrument.[xiv] The preamble of the NEPA clearly identifies the purpose of the legislation, which states, “To declare national policy which will encourage productive and enjoyable harmony between man and his environment”. The evolution of EIA can be traced in the international arena to the Rio Declaration (1992) under Principle 17, which provides for the concept of EIA[xv], as an environmental management tool to reduce the potential adverse impacts on the ecology, arising out of developmental activities. After the Stockholm conference, the National Committee on Environmental Planning and Coordination (NCEPC) was constituted, under the Department of Science and Technology, which initiated the process towards the formation of the separate ministry concerning the environment.[xvi] The international obligations are mandated to be implemented as provided for under Article 253 of the Indian constitution.[xvii] The Espoo Convention (1991), Protocol on Environmental Protection to the Antarctic Treaty (1991), Biodiversity Treaty (1992) and the United Nations Framework Convention on Climate Change (1992) exclusively provide for a mechanism of EIA for sustainable development.[xviii] In the MOX plant case[xix], Danube Dam case[xx] and the Pulp Mills case[xxi], the court arrived at the deduction that an EIA, should be construed as an integral part of the principles of due-diligence and the no- harm rule. Thus EIA is utilized as a universal tool in environmental conservation and management.
The EIA process envisages an important regulatory tool to balance the needs of society as well as the realization of goal of rational utilization of resources of the nation. The concept of sustainable development arose out of the deliberations of the Brundtland Commission in 1987, which defined sustainable development as “development, which meets the needs of the present generation without compromising the ability of future generations to fulfil their needs.” [xxii], Thus the resultant gradual shift from mere economic viability of the certain industrial activities to a more meticulous analysis of the ecological, societal and sustainability of the project in question. The Govindarajan Committee effectively strengthened the argument that environmental conservation priorities were to be tolerated, as long as they did not hinder the promotion of investment.[xxiii]The approach of the Indian government to proceed with an executive order rather than a legislative approach needs consideration, as a form of rule modification to serve executive interests delineates from the said purpose.The issue with the use of a notification in contrast to a legislative instrument strangulates the ambit for debate, discussion and deliberation, which is the primary safeguard against the exercise of arbitrary powers by the executive.
The Problems: The Flaws of EIA in India and the Policy of Exclusion
The EIA notification of 2006 with the objective of re-orienting the assessment process in India, in contradictory terms closely re-aligned and modelled the notification of 2006 on the recommendations of the Govindarajan Committee. Thus the rationality of diluting the process of the safeguards provided under the notification of 2006 from that of 1994, becomes clear as the government grapples with the idea of creating an investment friendly climate.
The EIA notification of 2006 superseded the 1994 notification, whilst inculcating new objectives of devolution of powers to the state governments, reduction in procedural intricacies and a liberalized policy in contrast to the executive’s notified and amended predecessors. The donor agencies operating in India like the World Bank and the Asian Development Bank operate through a different set of requirements for granting environmental clearance for the projects that are directly funded by these agencies.[xxiv] The procedural formalities have created an obtrusive ineffective process resulting in political and corporate interest creating a form of green tapism in the clearance procedure.The much-needed public participation is also reduced with the exclusion of Panchayats in public hearing panels, which was provided for under the notification of 1994.[xxv] The role of the local governance bodies in policy and decision-making process is excluded from the scope of consultation in the EIA notification of 2006. The Panchayat Raj Act, 1992, Nagarpalika Act, 1992 and the Schedule Tribes and other Traditional Forest Dwellers Act, 2006, clearly provides for the role of local bodies in social and economic planning.[xxvi] Thus the EIA notification of 2006 in many ways excludes the local participation by this policy of exclusion. The exclusion of Railways and irrigation projects from the ambit of the safeguard provided by the compulsory performance of Environment Impact Assessment is contrary to established international practices.[xxvii] In contrast to the Indian position, EIA directive of the European Union[xxviii] provides for obligatory assessment for railway projects as it clearly impacts the environment. The deficiency of reliable data sources and the credibility of the primary data attenuate the very concept of quality EIA reports.[xxix] The discretion granted to the bureaucracy by the way of delegation without any safeguards and accountability creates inefficiency and abuse of power. The bureaucratic stranglehold of this essential process of balancing interests, results in corrupt, prejudicial and ineffective decisions.
The Procedure and the elements of the EIA process: The lacunae in enforcement of the Law
The global system that has emerged is based on the fundamental premise of economic growth as the fundamental principle. The slight deviation being the introduction of sustainable development as one of the subsidiary aims[xxx] within the states agenda of economy over ecology and equity.[xxxi] The kind of cost-benefit analysis approach that has put a price tag on each and every resource culminates to a shift from a market economy to a market society. Thus when environmental costs emerge in the arrangement of economic calculations, the basis for the value judgment is the monetary value assigned.[xxxii]The Indian approach to environmental governance lacks in the manner of its implementation policy. The fundamental function of regulation lies in its capacity to contribute to the balancing of interests and resolution of conflicts in society.[xxxiii] The brazen discretionary powers granted to the officials, neither does justice to the needs of the environment as well as development. In the Philip Hampton Report on Reducing Administrative Burdens, has identified that regulators should use risk assessment in the form of eliminating unnecessary inspections and shift focus towards compliance.[xxxiv]
The EIA notification of 2006 brought about considerable changes, which ensued a deliberate compromise of prerequisites such as public participation and transparent decision-making.[xxxv] The notification envisages the hierarchical stage of clearance process, beginning with screening and then scoping, public consultation, appraisal. It involves the project proponent who applies for the terms of reference from the concerned authorities at the central or state level.[xxxvi] The minutes of the public consultation hearings are sent to the Expert Appraisal Committee (EAC) of the MoEF for Appraisal.[xxxvii] The major problem with the EIA process includes the quality of data that is utilized in arriving at decisions for grant of clearance of potentially harmful industries. The entire collection of data is dependent upon the project proponent, who can present distorted data with the help of the consultants, who are also financed by the project proponent. This method of preparation of the EIA report[xxxviii] defeats the use of this tool as a regulatory mechanism. The cogent reasoning that follows from consultants financed by the project proponents, stipulates the manner in which such a report would be unbiased and not client centric. The Supreme Court of India as also observed that “This Court would have been more comfortable if the environment impact studies were made by the Ministry of Environment and Forests (MoEF) or by any organization under it or at least by agencies appointed and recommended by it.”[xxxix] The MoEF has taken measures with regard to procedural checks such as granting environmental clearance when EIA reports are prepared by an accredited consultant and requiring clearance before initiation of any construction activity. These reforms do not in any manner address the issue of pecuniary influence that might result in the assessment report as being financed by the project proponent. This accreditation body Quality Council of India (QCI) which is bestowed with the task of providing accrediting accurate consultant agencies is jointly partnered by the Government of India (GoI) and the Indian industry.[xl] This process of rubber stamping whilst industrialists having a substantial interest in the outcome of the process, defeats the very objective of the accreditation process. The MoEF presented this process as a solution to the inaccurate and misrepresented data projected by the consultants but financed by project proponents. In the United States the NEPA requires the Environment Impact Statement (EIS) to be formulated by the concerned agency of the government. In this endeavour the agency can employ private consultants in preparing the EIS. The role of the agency is also clearly determined with the responsibility of the content lying with the agency.[xli] The problem in India can be remedied through a specialized agency similar to the United States but independent of political or complete bureaucratic control considering India ranking 94th in the Corruption Perception Index ratings 2012.[xlii] This problem is also compounded by the fact that the composition of the Expert Appraisal Committee (EAC) is mainly a bureaucratic undertaking[xliii], with the no involvement of environmentalists and civil society members. The EIA notification of 1994 provided for an independent ecologist and environmentalist as part of the EAC.[xliv] The enforcement mechanism is also fairly ambiguous with no clear procedure for the penalties and when clearance can be revoked.[xlv] There is also no clarity with regard to the role and powers of the EAC, in case its recommendations are amended or overturned without following the provisions of Para 8 (ii) of the notification.[xlvi] Thus there is a lack of suo moto authority to insist upon the implementation of the recommendations.
The application of the EIA process is based on the principle of a pre-emptive approach and the mitigation out of effective alternatives to ecologically harmful activities. This approach is ineffectual when the rationality caters only to development. The mind frame that exists among the people, that taking socio-economic conditions into consideration will hamper economic growth can lead to a misdirected attempt at rapid development. The projects that the government takes must also be subject to cost benefit analysis, as decision-making tool of sustainable development. The stance taken by the government in cases of infrastructure projects involving large-scale public investment excludes a number of polluting industries whilst providing exemptions to some industries. The very idea of having a pre-determined list with an exclusive rather than inclusive policy defeats the entire purpose of assessing the impact on the environment. The EIA norms have been amended for almost fourteen times and mostly in the favour of the project proponents and scarcely for the sake of the environment.[xlvii] This continued flexibility afforded to the MoEF to notify changes almost antithetical to previous notification defeats the objectivity of an environment friendly notification. The composition of the EAC has also been compromised by the inclusion of the term professionals in contrast to the EIA notification, 1994, which provides for members who are environmentalists or civil society representatives.[xlviii] In the European Union the, competent authorities decide the decisions with regard to the requirement of an EIA, after seeking advice from the developer and NGO’s. In the case of most developed countries the screening process is well established on the basis of clear scrutiny rather than having a pre-determined list as in the case of India.[xlix]The ineffective mechanism of dealing with the issues of the environment has also led to judicial directives, which have clarified the position of law as well as set guidelines for the implementation of the judicial recommendations. The problem with the functioning of the MoEF and the executive decisions in various cases have led to the judiciary reprimanding these bodies for their inability to meet statutory obligations.[l] The proposition for a national policy and effective public participation[li], to regulate the environmental[lii], still lack the political and societal will in its implementation.
The Stakeholders: The Essence of public participation and its requirement in the EIA process:
The World Commission on Environment and Development, in its 1987 report has concluded that the objective of social justice cannot be achieved without an equitable sharing of the cost and benefits of environmental protection.[liii] The realization of distributive justice cannot be rendered through ineffective apparatuses of the law, which lack practical application in the domain of policy decision making. The UDHR[liv], ICCPR[lv] and American Convention on Human Rights[lvi], acknowledge and reverberate the essential democratic aspect of the right to political participation. It reflects an expansive notion of democracy, which cannot be achieved by the states involvement in the decision-making procedure.[lvii] The implementation of public participation adds legitimacy to the environmental decisions[lviii] and adhere to the international obligations of access to justice and such pluralistic structures of public involvement.[lix]Once the public hearing is held, the grievance and opinions expressed, the minutes of the project are sent to the MoEF.[lx] Though this procedural aspect is finalized, the low educational levels and environmental awareness hinder the entire purpose of this integrative exercise. In most cases the help is provided by NGO’s[lxi] – who take up this cause of the locals. A large number of environmental projects are inadequately researched and biased, as the proposer of the project funds them.[lxii] The development policy of India must integrate, the essence of environmental laws, which advocate accountability, public participation and administrative justice.[lxiii] The implementation of the international obligations under the Convention on Biological Diversity are also under question, when the Indian Biodiversity legislation has faced criticism over legalizing bio piracy[lxiv] and the structure of the regulatory body skewed in favour of the government and the bureaucracy.
The willingness of the various bodies to exclude public participation becomes clear with regard to a number of cases[lxv], which have provided public consultation as one of the essence of Environment Impact Assessment. In the Jan Chetna case the court clearly held that ‘It is no more res integra that environment is a right guaranteed under Article-21 of the Constitution. The Environment (Protection) Act, 1986 and EIA Notification are the means adopted, to protect the right in discharge of the obligations enjoined under Article-48 A of the Constitution.’[lxvi] The blanket immunity granted to certain projects with regard to public consultation defeats the purpose of EIA as it does not take into account any concerns of the public which might actually be affected in any manner. The rights of the citizens to know and the right to object to any activity that might impair the right to environment, is an essential criterion for the complete realization of the statutory and constitutional obligations cast upon the state. The Supreme Court has also upheld this right to know about the affairs of the government and the policy decisions that impact their welfare.[lxvii] The process of assessment must be tailor made to suit the needs of the people and their concerns, without having an overarching exemption to certain industries, even if they do not ostensibly impact the environment. The only instance at which there is public involvement in the project cycle is the public hearing stage[lxviii], which reduces scope for public participation in the preparation of the EIA report. This only opportunity provided for public consultation would result in severe injustice to grievance redressal. The scenario in which there can be informed participation of the local communities is when the EIA report is provided in the local language, which in many cases is not followed.[lxix] In India, weak screening and scoping, poor quality baseline data, ineffective follow-up, whilst lacking key legislation[lxx] are the most glaring loopholes within the prevalent mechanism. Therefore, the prerequisite necessity for a complete overhaul in the preliminary stages of the EIA implementation process.
The Alternative: Strategic Environment Assessment:
The EIA process in India has not resulted in an effective form of environmental accounting[lxxi], where an integration of the myriad forms of policy issues is necessary. The standard has been that of a shift in the focus from a bureaucratic clearance procedure to that of providing a fast track clearance mechanism. The accurate data on investments and costs provides an accurate measure of the conservation initiatives required from the corporations.[lxxii] The environmental accounting of the UN Statistical Commission, that is undertaken in the form of a SEAA System of Integrated Environmental and Economic Accounting takes into account the natural assets and provides a framework for integrated sustainable development.[lxxiii] Thus such methodologies narrow the ambiguities[lxxiv], which lie in formulating an operative national policy on the environment. The Smith Study of 1974 utilized 10 criterions for the evaluation of a number of EIA methodologies,[lxxv] which have not been completely implemented in the Indian scenario.
The certainty of punishment deters the perpetrators of the crime, rather than acting as a mere acceptable risk. The post- clearance stage enforcement mechanism in India, suffers from the flaw of a wide array of regulatory agencies, from which require various clearance procedures. The discretionary functioning must be made answerable and the intervention of political representatives barred[lxxvi], so that there is specific accountability for the grant of clearances. The ineffectiveness of the environmental laws in India, can be deduced from the constant amendments to various legislations such as the Environment Impact Assessment notification, The Water Act and the Air Act.[lxxvii] The environmental laws should shift the focus from the entirely preventive methodology towards an integrated punitive approach.
The shift from Environment Impact Assessment (EIA) to Strategic Environment Assessment (SEA) does not classify as a mere change in terminology, but a stark difference in approach towards balancing the interests and needs of the society. One of the major shortcomings that the EIA process inherently entails is the last stage impact on the decision making, while SEA provides an elixir to this accusation by providing for initial decision-making, as it takes place at the early stages. The SEA also can be considered as an interdisciplinary approach, which takes into consideration a number of eventual impacts as well as alternatives[lxxviii] in contrast to that of the EIA report. The benefits of the entire of conducting an EIA can only be reaped when there is the enforcement and procedural compliance to international standards where EIA reports do eventually impact the decision-making. As stated, ‘the litmus test of EIA effectiveness lies upon the influence this report has on decision making’[lxxix], but in contrast the body reviewing this highly questionable report is adjudged by an extremely flawed body i.e EAC. Thus the tangible effects of this purposeful exercise of conducting an EIA can be felt, only when there is a substantial overhaul of its present purpose, procedure and practice. The inclusion of a Social Impact Assessment in the decision-making along with the EIA[lxxx] would also provide for additional substantiation of the social and environmental cost-benefit analysis. The developmental programmes, which are inclusive of the social impact assessment, alleviate poverty, enhance inclusion and building ownership while reducing and compensating for adverse social impacts on the vulnerable and the poor.[lxxxi] An effective EIA results in the much needed mitigation measures and a clearly charted environment management program. Thus an integrative approach towards India’s environment concerns can alleviate the downtrodden methodology of impact assessment, by taking environmental, social, and economic and health considerations as concurrent lines of analysis for a reasoned report.It has been extensively accepted that a SEA[lxxxii] is significantly more likely to foster sustainable development than project-level EIA.[lxxxiii] The shift from EIA, which lacks in implementation[lxxxiv], to SEA can be considered as the refined approach to sustainability.
The Greed over the Need:
The scrutiny of different methodological approaches to implementing the principle of sustainable development, gives rise to two models of the EIA approach, i.e the mandatory model and the discretionary model.[lxxxv] The classification is based on the scope and nature of discretion granted over the procedures for EIA, which are governed by a specific or delegated legislation.[lxxxvi] The Indian model concerns the discretionary model, which provides less accountability, stability and transparency in comparison to the mandatory model. The shift to such a model would invigorate the essence of sustainable development, as there would be much to practice than preach the prevalent ostensible process of EIA in India.[lxxxvii]There is a pressing necessity to appositely amend the anti pollution Acts and the EIA Notification, thus encompassing all development projects.
As Ramachandra Guha rightly states that ‘In its countrywide implications the environmental problem is every bit as serious as the Kasmiri Dispute or the fiscal crisis of the State.’[lxxxviii] Though such issues concern the masses, the sensitivity to such issues has hardly garnered the recognition by the intelligentsia and poorly acted upon by the political class. Thus the fundamental right to a healthy environment[lxxxix] cannot be realized until EIA’s don’t conform to international standards,[xc] not only in principle but also in practice.
The problems of overpopulation and urbanization are typical phenomenon that occurs in every developing nation, at particular phase of its growth. This stage of growth results in sound economic policies but rather unsound environment friendly policies, as the government tries to balance the needs of the state while adhering to the principles of sustainable development. The result of reconciling the aspects of development and sustainability must seem tangible and effective, rather than represent mere tokenism on part of the government. The prevalent EIA mechanism in India has failed to address issues on a number of constant criticisms levelled by environmental organizations and various pressure groups. There is an urgent need for a shift from the prevalent EIA mechanism to an independent regulatory body, which lacks political interference and corporate pressure from various lobby groups. The EIA notification allows acquisition of land for projects even before an application of environment clearance and pre-construction activities of hydroelectric projects goes unregulated.[xci]There clearly exists a lack of an enforcement regime and requires only half-yearly reports from the project proponent. The ostensible nature of the EIA process in India portrays the inherent flaws with its initiation in policy making to the eventual implementation. The objective of sustainable development cannot be achieved through a sustained process of exploitation of the recurrent loopholes of the environmental procedures and the wilful acquiescence to the demands of the industry.
The Supreme Court in the T. N. Godavaraman case[xcii] has held that conformity to the principle of sustainable development as constitutional requirement based on the principle of intergenerational equity. It can be understood that the concept of sustainable development entails legal sanctity rather than being a mere policy decision, performed at the discretion of the executive. The prevailing need for a shift from the current EIA process can be understood when the former Union minister for Environment and Forests in 2011 went to the extent of terming the EIA process in India to be a ‘joke’.[xciii] The EIA notification of 2006 has also devolved powers to the state governments, which is a welcome step towards the devolution of monopolistic like powers conferred upon the MoEF and the central executive. This step brings into line the division of powers under the concurrent list under the seventh schedule, which includes subjects such as protection of wildlife, mines and minerals and forests. Although this devolution is devoid of any substantial change as it acts in a counterproductive manner, when local bodies are excluded from the decision making process.
The problem in India with regard to EIA, not only occur at the implementation stage but rather concern the entire setup and the purpose with which environmental issues are raised in society. The need for a shift from the prevalent mechanism of balancing interests through the EIA process has raised mass criticism due to the inherent inefficiencies and flaws in implementation. The process of change in the Indian scenario can only be expected when there is at least a change in the political, bureaucratic and societal mind set towards the phenomenal importance of the environment towards sustainable growth. The needs of the environment are in some manner considered as an impediment to growth, especially in a developing nation such as India. Thus there is always a requirement for an industrial friendly environment policy, which would promote investment and development. The question that society needs to answer is whether a compromise is made in the environmental policy to suit the needs of the developing nation? The stark reality is that environment policy is never dealt as a political issue but only as a form of appeasement of India’s commitment to its international obligations and projecting growth based on sustainability. The NEPA in the United States was enacted as result of mass agitation while in India it resulted as form of corrective policy as fallout of the aftermath of the Bhopal gas tragedy. Thus the environment has never been a poll issue but rather a policy decision by the executive while evading the scrutiny of the Parliament. The point, at which India can scrutinize its own EIA without effectual comparison with other forms of EIA implementation, then can only there be a shift in the process of assessment. The need in India is to shift from the bureaucratic and executive hold over the EIA process to a transparent mechanism for a separate regulatory body, which makes decisions independent of the political and industrial lobbyist pressures. There is also a much-desired need for a form of sensitization of the accrued benefits that result out of an environment impact assessment report, rather than the demonization of the entire mechanism. The environmental education that is imparted to students creates highly aware and participative citizenry in the field of environmental activism.
The industrial perspective must also change from the viewpoint of EIA being a hindrance, as future costs of litigation, resulting compensation for damages, environment disasters and their mitigation can be determined on the basis of accurate analysis. Thus if the industrialist realizes the benefit that results out of this process, then the demand will be for voluntary compliance, rather than evading the requirements of the EIA process. The bureaucratic control and the concerns of the capitalists can be dealt with an independent regulatory body, free from the political control of the Ministry of Environment and Forests. The number of EIA scams and the affirming judgements[xciv] vindicating the failure of the environmental regulatory bodies in India clearly put forth the need for an overhaul of the present EIA mechanism, even after the EIA notification of 2012. The fallacies of these notifications lies in their ambiguity and inability to deal with a number of agencies, thus necessitating the requirement of a comprehensive legislation with clear devolution of roles, responsibilities and powers of various state and central bodies. In 2007, when there was severe questioning of the Quality Council of India[xcv] process by certain groups and individuals of the accreditation mechanism, the QCI brought out a list of EIA consultants with flawed assessment reports. In the case of the Kundankulam Nuclear Project, which is now in operation, the report was prepared by the National Environmental Engineering Research Institute (NEERI), which was amongst the list of flawed EIA’s put forth by the QCI in 2007.[xcvi] Such instances entirely defeat the process of EIA as a solution to the problems of society.
The Indian government can under the powers granted by Section 3(3) of the Environment Protection Act, 1986, create an independent regulator, which would deter the political and bureaucratic functioning of the EIA mechanism. The establishment of the National Green Tribunal has done much to the cause of the environment and the effective implementation of the present provisions without providing scope for exploitation of the plethora of loopholes present in the notifications. The National Green Tribunal also has wider powers to go into the merits of even policy decisions impacting the environment. The NGT also cannot circumvent the prevalent law in the form of notifications, which are pro-industrialist considering the number of EIA scams and the multiple amendments brought about in the past two decades, with no significant remedial measures. The creation of an independent regulator would provide the monitoring that goes into enforcing the laws of the land. This scenario of a single regulator can be compared to that of a Comptroller Auditor General (CAG) or Securities and Exchange Board of India (SEBI), with little or no political influence in their functioning, concerning a wide number of issues.
In 2011 the Supreme Court in its order[xcvii] requiring an independent regulator for environmental clearances, clarified the extent of judicial review in cases where environmental clearances were already granted. The intentions of the Indian government become ostensibly clear and apparent for the reasons given for the non-implementation of this order. The reasons stated before the Supreme Court include reasons that such a regulator would face the same fate as that of the National Green Tribunal with problems related to finance and infrastructure and instead proposed a separate authority.[xcviii] The proposition of an authority would not remedy the lacunae that the present system faces considering the political, bureaucratic and industrial stranglehold. In a country like India, where survival trumps the issues of the environment, the kind of accountability that the people demand in such circumstances from the political class, must be understood in its entire practicality. For a society to move upwards from one stage to another of Maslow’s hierarchy of needs, there needs a satisfaction of the basic needs, in a developing country such as India. The implementation of the EIA is eventually a long-term benefit to society rather than a short term, profit-earning asset which yields no net result. The hurdles that a developing economy faces in terms of balancing the interests of society by the way of sustainable development can be tackled through reasoned decision making. As Vanderheiden notes that ‘a law that mandates sustainable forestry practices on every day but Sunday would obviously be ineffective in maintaining a sustainable forest’.[xcix] This Indian approach requires a shift to a stable, effective and transparent EIA mechanism.
In the 21st century there is a great demand for green products especially in developed countries and this can to be some extent attributed to the environmental awareness and education. The concept of corporate social responsibility has also provided a humanistic concern towards industrial ventures and provided a rationale for a form of self-actualization for the corporate world to meet the requirements of environmental impact assessments. Thus in this scenario there is a shift from meeting requirements not out of legal compulsion but rather a form of social obligation. In this regard, the National Environmental Awareness Campaign (NEAC) since 1986 has been striving to create environmental awareness at the national level. The real shift from the process of Environmental Impact Assessment can only be a change in the mind-set and policy of the people and the government, concerning the very need of the environment. The lack of integrated spatial planning in India and its confinement to urban areas[c] has also acted as a deterrent to the principles approach to the policy of sustainable development. The legal sanctity granted to the priority to protect the environment[ci] must also gain political and social sanction. The environmental jurisprudence in India has also developed as a result of the creative judicial interpretation in line with the constitutional objectives and international obligations of advocating a healthy environment. The judicial check on the clearance process has provided ample guidelines and orders to restore the purpose of EIA within the flawed process of its implementation. Thus an effective judicial check cannot function when the political will is lacking over creating a definite and unambiguous legislation, as an antidote to the venom of inefficient and corrupt practices. In the DTC case the court stated that “There is only a complacent presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it”.[cii] This presumption of the executive performing its necessary duties does not provide an overarching truth to the present situation of India’s environmental concerns. The number of EIA scams and inadequate EIA reports presents the grim reality with which greed has overtaken the need for sustainable development. A country like India cannot wait for the eventual working of the Environmental Kuznets Curve, as the other developing countries might think of as an eventual outcome. Environmental quality is a matter of social choice and societies may differ, in their reviews as to what constitutes an “acceptable” level of environmental quality.[ciii] The Indian perception must change to realize the value of the environment, where one cannot subsidize growth.
As John Maynard Keynes once said ‘Long run is a misleading guide to current affairs. In the long run we are all dead’, this statement aptly applies to the mind set and the dilemma people face over the allocation of resources in society. The long run, as is the case of Environment Impact Assessment, discerns the future as well as current benefits, but the onus of implementing this safeguard on exploitation requires the will of the government as well as the concern of the people.
[i] Pyarelal, Mahatma Gandhi, Volume X: The Last Phase, Part II (Ahmedabad: Navajivan, 1958), p.552
[ii] P.S Jaswal (1999).Environmental Law. 1st Edition .New Delhi: Pioneer Publications. p.4.
[iii] Ibid at 7.
[iv] Kalpana. Markandey and S. Simhadri , Globalization, Environment and Human Development. 1st ed. 1. New Delhi: Rawat Publications, 2011. p.1-4.
[v] Paolo Contini and Peter H. Sand (1972).Methods to Expedite Environment Protection: International Ecostandards . The American Journal of International Law. 1(66), p.39.
[vi]P. Leelakrishnan .Environmental Law Case Book. 2nd edition .New Delhi: LexisNexis Butterworths,2006. p.5.
[vii]Constitution of India, 1950 Art 48A.
[viii]Constitution of India, 1950 Art 51(g).
[ix]Should Large Developing Countries Pursue Environmental Policy Unilaterally? Amitrajeet A. Batabyal Indian Economic Review, New Series, Vol. 28, No. 2 (1993), p. 191.
[x] N.D. Jayal and Anr. v. Union Of India and Ors (2004) 9 SCC 362, 20.
[xi] Vellore Citizen’s Welfare Forum v. Union of India (1996) 5 SCC 647-49.
[xii] A.P. Pollution Control Board v. M.V. Nayudu AIR 1999 812.
[xiii] Pandey K.M, Debbarma Ajoy, Das Hirakjyoti, Roy Amitava and Nath Writuparna, Environmental Impact Assessment and Management, Vol. 7 No. 4 2013 JERD, p.1459.
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[xxvi]Ibid at 25.
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[lxxii] Ibid at 8.
[lxxiii] N Das Gupta ,Environmental Accounting, Wheeler Publishing 1997 first edition New Delhi p. 11-12.
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[lxxxv]P. Leelakrishnan (2009).Environmental Law in India. 3rd edition .New Delhi: Lexis Nexis . 315.
[lxxxvi] Ibid at 317.
[lxxxvii] Sukh Pal Singh, Environmental Management through Environment Impact Assessment, 31 Ban.L.J.(2002) p.129.
[lxxxviii]Ramachandra Guha How Much Should a Person Consume ? Thinking through the Environment Permanent Black 2006 New Delhi, p.70.
[lxxxix] Subhash Kumar v. State of Bihar, AIR 1991 SC 420;Charan Lal Sahu v. Union of India AIR 1990 SC 1480.
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[xcii] T. N Godavarman Thirumulpad v. Union of India  3 SCC 312 (SC).
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[xciv] M.C Mehta v. Union of India  1 AIR 734 (SC).
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[cii] Delhi Transport Corporation v. DTC Mazdoor Congress  1 SCC 600 (SC).
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