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The new environment clearance shopping mall

By Manju Menon and Kanchi Kohli

The new notification for environment impact assessments displays the environment ministry's enthusiasm to compromise with industry, not regulate it

Industry and the builders' lobby finally have their own new Environment Impact Assessment (EIA) notification. It was introduced by the Ministry of Environment and Forests (MoEF) of a government that claims to be 'pro-poor'. The notification, dated September 14, 2006, replaces the earlier EIA avatar of 1994, and only exacerbates the existing problems of poor content and implementation. The ministry has failed to make good a significant opportunity for reforms in the environment clearance process.

Under the earlier EIA guidelines, states were only vested with the power to clear projects valued at less than Rs 100 crore. The reworked draft gives states sweeping powers: they can clear projects of any value and do not require environmental clearance from the central government. "Only EIA approval of the state governments will be required. We will have nothing to do with the construction business," an environment ministry official said.

Consultations on the draft notification were held only with representatives from industry and central government agencies, according to the ministry's own submission. State governments, panchayats and municipalities, NGOs, trade unions and local community groups were partially or completely left out of the process. The ministry did not relent on its bias despite communications received from political representatives and MPs across parties seeking an opening up of the process. The enthusiasm of the ministry to compromise with industry, which it should instead be regulating, runs through the text of the notification.

According to the new process, the MoEF will clear all projects in Category A; Category B projects are to be cleared by the State Environment Impact Assessment Authority (SEIAA). Clearances have been handed over to this new entity at the state level without ensuring a system of checks and counter-checks. This is especially important because, in many instances, the state government is directly involved in seeking new investments.

The most critical issue of monitoring and compliance, which is an integral part of the environment clearance regime, is dealt with in precisely three sentences. And there is no mention in these about the role of the ministry in monitoring. This section of the notification, from any angle of interpretation, leads one to conclude that the ministry has absolved itself of the duty of monitoring cleared projects, according to the notification. This is in sharp contrast to experiences on the ground, where several projects do not comply with the clearance conditions even with the ministry watching over them. Further, there is absolutely no role for local community groups in monitoring projects.

EIA notification 2006 also allows for the exclusion of large capacity projects from the environment clearance regime. All building and construction projects with less than 20,000 sq mt built-up area, like shopping malls and commercial complexes, are now exempt from the notification. Even those bigger than the above are exempt from three of the four clearance stages -- screening, scoping and public consultation.

They are present in the EIA notification only insofar as having to be cleared by the SEIAA on the basis of a form filled in by the proposed developer!

Under the new guidelines a three-member state-level authority -- headed by a government official and with two experts on board -- will clear projects exceeding 1.5 lakh sq metres. A self-assessed EIA will suffice for smaller projects between 20,000 to 1.5 lakh metres.

The screening stage exists primarily to sub-divide Category B projects into those that require EIA (B1) and those that do not require EIA or public consultation (B2). This decision, again, will be made on the basis of information provided by the applicant in a form. For example, a 450 MW thermal power plant can be cleared only on the basis of the information provided by the project proponent. It is impossible to believe that this could lead to any appropriate decision-making at all, when we have several examples of projects that have been cleared based on fudged or poor-quality EIA reports.

A more serious problem is that there is nothing yet in the notification, or Form 1 and 1A, that could stop the SEIAA from transferring all projects to Category B2. The notification only vaguely states that the MoEF will, from time to time, issue guidelines for this categorisation. If most Category B projects do end up in the B2 list, they will be appraised and granted clearance, again on the basis of the information that's in the application form, and discretionary site visits.

So we have a situation where a large number of projects could be cleared without an EIA or public consultation, despite being in the EIA notification -- a systematic negation of the very spirit of the EIA notification.

The expert committees that will assist in the process of granting clearance do not include social scientists, ecosystem experts or NGOs. These groups were included in the composition of appraisal committees in the 1994 notification. Letters with detailed research on past committees and their problems were sent to the MoEF in April 2005. Instead of taking these suggestions on board, the MoEF has mostly restricted the composition of the committees to technical experts.

Once granted, environment clearance for river valley projects is for 10 years and a maximum of 30 years for mining projects. This is a big change from the 1994 notification that allowed a validity period of five years. The project developer may start work just before the expiry of the period, by which time the parameters of the EIA study (demographic or ecological) may have altered significantly and its conclusions made redundant.

For the few projects that are not excluded from the full clearance process, public consultations must comprise two aspects: a public hearing in which only local affected people can participate, and a process for obtaining written comments from concerned others. But the process, as laid out in notification 2006, appears to be severely flawed and clearly limits public participation.

The notification allowing a public hearing to be cancelled if local conditions are not conducive may be subject to severe misuse, as has been the case in the past. It will mean cancellations, in most cases, where there is huge opposition to the project or where thugs are hired to thwart the process. Only one party loses in both cases. So does the objective of participatory decision-making.

Only a draft EIA report will be available to local affected persons at the time of the public hearing. There are enough examples over the last 12 years of the existence of an EIA notification when the project proponent has sought clearance on incomplete and misleading data. The ministry has not only failed to take punitive action against erring agencies, it has gone ahead and cleared projects based on these reports. This practice will only become more widespread if the final EIA report is not open to public scrutiny.

(Manju Menon and Kanchi Kohli are members of the Kalpavriksh Environmental Action Group and are based in Pune and Delhi respectively)

InfoChange News & Features, September 2006