PCI India

Environmental Deregulation amidst the Covid-19 Pandemic : India’s Draft EIA Notification 2020

Mukul Bhatia

The Covid-19 Pandemic has reinforced the divide between the Global North and South, specifically in terms of the response mechanism adopted by states to address the crisis. On 27th May, Ursula Von Der Leyen, the President of the European Commission, while presenting the ‘Next Generation EU Proposal’ in a plenary session of the European Parliament, asserted that-

“The recovery plan turns the immense challenge we face into an opportunity, not only by supporting the recovery but also by investing in our future: the European Green Deal and digitalization will boost jobs and growth, the resilience of our societies and the health of our environment.” (Leyen, 2020; European Commission, 2020) 

The recovery plan laid particular emphasis on the need for investing in the ‘Next Generation’ and thus allocated 25% of the EU’s budget to climate action (European Commission, 2020). On the other hand, Brazil’s environment minister, Ricardo Salles, in a ministerial meeting held on 22nd May reportedly stated that the pandemic offers an ‘opportunity’ for further environmental deregulation in the country (Rodrigues, 2020). These contrasting articulations of opportunities highlight how concerns over the environment and sustainability figure disparately into the policy discourse among nations. The pandemic has created the need for countries to adopt varied measures to mitigate the effects of their plunging economies.

However, the sustainability of their efforts would depend on their relative capacities, an overt political will, and participatory efforts of the civil society. The dynamic and more context-specific interpretation of the ‘common but differentiated responsibilities and respective capabilities’ (CBDR-RC) principle enshrined in the Paris Agreement (2016) signifies the resolve of the international community to bridge the North-South dichotomy associated with global climate change mitigation efforts (Pauw, Mbeva & Asselt, 2019). From this vantage point, efforts at environmental deregulation in the face of the pandemic are a function of unimaginative and reactive policymaking. The Draft Environment Impact Assessment (EIA) Notification of 2020 issued by the Ministry of Environment, Forest and Climate Change in India exemplifies such short-sighted policy efforts.

First introduced in 1970 in the USA under the National Environmental Policy Act, the EIA has been widely adopted by countries across the globe. It forms a major policy tool in both developed as well as developing countries to assess a proposed project’s effect on the environment. Principle 17 of the Rio Declaration on Environment and Development reads:

‘Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.’ (Rio Declaration, 1997)

During the 1970s, India began making use of the EIA provisions for assessing the environmental dimension of river valley projects and in 1994 the Environmental Clearance was made mandatory through an EIA notification for particular activities and projects (CSE India, n.d.). The recent draft EIA notification dated March 23, 2020, dilutes several provisions and resonates with the Government’s emphasis on promoting the ease of doing business. Even without delving into the specifics, one may question the appropriateness of the timing of the draft notification. It is hard to see how the civil society while grappling with the chaos created by the pandemic, can offer inputs that are representative of a valid critique.

One of the most crucial aspects of the draft notification is the implications it would have on the public consultation process. Firstly, the exemption of undergoing a public consultation process for ‘strategic projects’ identified by the government in addition to the national defense and security projects might open up space for arbitrariness. This signifies the subsumption of environmental security within a largely militaristic discourse on security. The period for a public hearing, in general, has also been reduced. Public participation is essential for democratizing environmental conservation efforts, and as a facet of the EIA process, it needs further development. Thayyil makes some compelling observations regarding the operationalization of the EIA process. He notes instances of physical prevention of the public from participation in the evaluation of mining projects, lack of adequate access to information by the affected communities and provision of notice of the meeting, communicational inaccuracies, poor quality of EIA studies, lack of accountability of EIA consultants and instances of collusion among them and project proponents (Thayyil, 2014). These issues have to be addressed for strengthening the EIA process. With the further dilution of the participatory process, the democratic spirit of the EIA is undermined.

Changes to other provisions also signify an explicit inclination towards the ease of doing business and subordination of the environment to the needs of the economy conceived in narrow terms. This trend can be discerned by the increase in the general validity of environmental clearance and submission of an annual instead of half-yearly compliance report. Also, the introduction of provision for the grant of ex-post-facto clearance goes against the ‘precautionary principle’ and its primacy has been established in international customary law (Thakur & Anekar, 2020). The way this principle is implemented can have far-reaching ecological implications.

The draft notification should also be read within the context of an absence of environmental conservation from the policy discourse around the Covid-19 pandemic. The economic stimulus package announced by the government in response to the pandemic seems to have completely skipped over this aspect, signaling that the policy establishment views the environment and economy as dichotomous spheres of action. The economic literature is full of examples that demonstrate the importance of investment in a green economy. While confronting a crisis, such measures might lack an immediate political currency. However, they form the building blocks of a robust, creative, and courageous policy. At this juncture, it is crucial to conceptualize sustainable response mechanisms at the local, national, regional, and global levels. It can, thus, begin by redressing of the long term issues associated with operational elements of the EIA instead of further opening up a lacuna by weakening its existing provisions. However, the EIA provisions by themselves do not ensure a positive impact on the environment. They have to be accompanied by several complementary legislations. It is also equally important for giving adequate space to the civil society to inform policy discussions.

It is worth reiterating that the pandemic has reinforced the divide between the Global North and South, in that the political class in the Global South mimics the political class of the Global North by importing environmental abuse to their land. Thus, the draft EIA notification can be interpreted both within and beyond the immediate context of the pandemic. The policy establishment needs to revisit its approach to making India an attractive destination for transnational businesses and integrate the needs of the environment and those of the economy. The importance of such a revision is reaffirmed as the pandemic has further intensified the need for sustainable policy across the globe.

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The views expressed in this paper are the views of the authors and do not necessarily reflect the views or policies of PCI, its Board of Directors, or the governments they represent.