COVID-19 in India: An excuse to dilute environmental policy to benefit businesses
As India grappled with the COVID-19 pandemic, its Ministry of Environment, Forest and Climate Change (MoEF&CC) introduced the Draft Environmental Impact Assessment (EIA) Notification 2020, a day before the country entered national lockdown. The MoEF&CC sought to overhaul this substantive law on environmental governance when India’s population were in no position to effectively engage with, oppose or challenge it. Introduced to supersede existing EIA Notification 2006, which mandates prior environmental clearance for projects and activities that fall under it, Draft EIA Notification 2020 seeks to dilute the environmental impact assessment process and regularise violations by project proponents (i.e. public or private companies, construction firms or state bodies). Additionally, it also covers a compilation of environmental policy dilutions made at the behest of industry in recent years, in efforts to further reinforce them.
The proposed law
Draft EIA Notification 2020 removes the requirement for mandatory public consultation for most projects, taking away the right of local and indigenous communities to be consulted on projects directly affecting them. Where consultation is retained, the time to file objections has been reduced from an already insufficient 30 days to just 20. The proposed law also exempts several industries and project types from environmental clearance and scrutiny, and a new diluted “environmental permission” has been introduced. Many projects have been reclassified into such categories to escape examination under the EIA process altogether. The law seeks to regularise violations by granting post-facto clearance to projects and activities which were set up without taking the mandatory prior environmental clearance. The requirement for project proponents to submit compliance reports has been relaxed from twice a year to just once a year, and -the validity of environmental clearance extended from five years to seven. The public have no avenue to report violations while “national defence or security or other strategic considerations” projects do not have to share information with the public.
Response and intervention
The pandemic has offered the perfect cover under which to implement these policy changes. Following its official publication on 11 April 2020, at the peak of the lockdown, the public were given 60 days to submit their responses. Owing to the volume of criticism from civil society and environmental rights communities (approx. 4,000 objections were received in under a month) the deadline was extended twice. Local and indigenous communities were effectively excluded from participating in the process as local translations were not provided (a matter raised by multiple courts). Despite vehement nationwide opposition, with approximately two million comments received by the MoEF&CC, the government has still not withdrawn the proposed law as demanded.
Organisations opposing the proposed law have faced several attacks, including online surveillance and internet bans. Three environmental groups advocating against the law – Let India Breathe, Fridays for Future and There is no Earth B – were sent notices under the draconian organised terror law, Unlawful Activities Prevention Act. These were later withdrawn.
Human and environmental cost
This widespread public and environmental opposition is not unfounded. On 7 May 2020, during the public objection period for this law, an industrial disaster took place. A styrene gas leakage in the LG Polymers Unit in Vizag, India, killed 12 innocent people and injured hundreds. The Vizag unit was illegally operating without an environmental clearance from 1997, until it applied for a post-facto clearance in 2019. An incident in a spate of recurring disasters, at least four more industrial accidents have taken place in Vizag alone, between May to August 2020. In total 29 lives have been lost due to negligence, lack of safety precautions and impunity. Such gross irregularities will go unchecked under the proposed law and non-compliance given impetus.
India is facing serious environmental crises and loss of natural resources due to policy dilution, land grabs and destructive development. The devastating impacts are clear in the climate change events, natural disasters, deteriorating air quality, loss of forest cover, dismal health indicators and rise in pollution that have occurred. The proposed law falls foul of the polluter pays principle, precautionary principle and public trust doctrine, and is undemocratic, unconstitutional and an attack on local governance and public participation. It also violates international principles of environmental law and breaches international treaties to which India is a signatory; including the Rio Declaration, UN Framework Convention on Climate Change and Paris Agreement. In situations where the effectiveness of UN Guiding Principles on Business and Human Rights and National Action Plans are dependent upon the existence of strong environmental governance, the proposed law removes the very regulatory framework through which rights can be protected, respected or wrongs remedied. On 31 August 2020, UN Special Rapporteurs holding different mandates issued a joint communication demanding clarifications and an explanation on how the draft law corresponds with India’s obligations under international law.
The stakes for Indian civil society are extremely high: Draft EIA Notification 2020 risks being the final nail in the coffin for environmental and human rights protections against destructive development. The need to acknowledge and remedy wrongs, and explore and implement inclusive and sustainable targeted solutions is urgent, as is compliance with and monitoring of laws and protections. The reversal of this dilution of environmental laws, a thorough review and revision of existing policies based on current understandings of climate concerns, sustainability, biodiversity and environmental protection, alongside indigenous people’s rights and public participation, are paramount.
The prevalent shift to voluntary processes that rely on the moral conscience of businesses to behave is failing in the absence of strict regulations. In just four years, India jumped from 130 to 63 in the World Bank’s ease of doing business ranking, attributed to regulatory reforms that ease construction permits, entrepreneurship and trading. In the same period the country’s environmental crisis has worsened. If urgent measures are not taken to remedy these costs, it will only exacerbate this crisis of prioritisation.