TREAD CAUTIOUSLY! SUBVERTING THE PRECAUTIONARY PRINCIPLE VIS-À-VIS THE DRAFT EIA NOTIFICATION 2020
– Lianne Lucia D’souza, Research Fellow, CEERA-NLSIU
At a time when the country is staring at widespread ecological destruction in the name of industrial development, the Government of India has taken upon itself the mantle of paradigm shifter by bringing about significant changes in the environment clearance regime. Earlier in March, 2020, The Ministry of Environment, Forests and Climate Change (MoEFCC) released a Draft Notification on Environment Impact Assessment (EIA Notification, 2020) which, if approved, is set to replace and amend substantially the 2006 Notification on Environment Impact Assessment. It was introduced with the objective making the process of environmental clearance more transparent and expedient through implementation of online system, further delegations, rationalization, standardization of the process.
Unsurprisingly, the Draft Notification has received stiff opposition from environmentalists, NGO’s, legal practitioners and the general public for various reasons. It has been criticised as an attempt to dilute the protective regime of the enviro-legal framework and dismantling it in favour facilitating of large-scale construction projects. As regulations relating to Environment Impact Assessment ought to invoke utmost caution in dealing with environmental risks, the Notification in question has been deplored for running contrary to this objective. Furthermore, from a jurisprudential stand point, the Notification hits at a fundamental principle that underlies environmental regulations, i.e. the ‘Precautionary Principle’.
The Precautionary Principle as a guiding force for EIA
The precautionary principle, among others, forms the bedrock of environmental law and governance. It is bolstered on the fragility of the diverse ecosystem and is based on the idea that harm once caused will take time-staking reparation or worse, will become wretchedly irreversible. Simply put, it is based on the colloquial aphorism that “it is better to be safe than to be sorry.” The theoretical basis for this notion is that, due to scientific uncertainty, environmental risks should be better and more prudently managed, especially where there is reason to believe that harm may ensue from a proposed activity. This implies that public and private decisions should be guided by careful evaluation and scientific evidence, to avoid serious or irreparable damage to the environment.
EIA as a regulatory instrument reflects the precautionary principle as it seeks to identify the environmental risks associated with a project and reduce the possible damage that may follow. Due to the uncertainty regarding the environmental impact of development projects, EIA calls upon proponents of new developments to provide evidence – preferably scientific – that their proposals will be environmentally sound. Therefore, through this anticipatory and strategic decision-making process, EIA invokes a sense of caution in streamlining those projects that are potentially disastrous from an ecological perspective.
Dilution of the Precautionary Principle
In the light of environmental jurisprudence and activism, the Draft Notification has received backlash for an array of reasons, one of which includes the subversion of the precautionary principle. The most glaring concern that prima facie impairs the notion of conducting environment impact studies is the window it creates for post-facto approvals. By allowing retrospective environmental clearances and creating this margin of condonation, the Notification is not only paving the way for irreparable damage to the ecosystem but is in fact ushering a series of possible violations with disastrous consequences to the environment. It obliviates the basic understanding that, in case of delicate ecosystems, harm once done cannot be undone. From a legal standpoint, this move not only undermines the foundations of environmental jurisprudence but also stands contrary to the precautionary principle and sustainable development.
Another concern that bears relevance from a precautionary perspective is the relaxation provided in monitoring and compliance measures. As per the provisions of the Draft Notification, it is mandatory for project proponents to submit a compliance report on an annual basis, as opposed to disclosure every six months as mandated under the 2006 Notification. The reduction in the frequency of compliance runs the risk of projects going unmonitored and unnoticed, thereby paving way for irreparable damage to the environment. Furthermore, if violations vis-à-vis certain projects are recurring in nature, they might be brought to the notice of the authorities at a time when it will be too late to undo the damage caused.
The impugned Notification is also heavily criticised for diminishing the process of public consultation – which hits at the very democratic nature of environment impact assessment. In the erstwhile 2006 Notification, a minimum notice period of 30 days was to be provided to the public to furnish their response to proposed projects. However, under the proposed Draft Notification, the notice period so provided for public responses has been detrimentally truncated to 20 days. Besides this, the Draft Notification also expands the list of exempted projects from public consultation which include metallurgical industries, Chlor-alkali industries, soda ash industries, chemical fertilizer producing industries and many more. Furthermore, the Notification mandates that the process of public consultation is to be completed within a period of 40 days from the date receipt of request from the project proponent, which has been reduced from the earlier mandate of 45 days. While these changes do not seem significant at first glance, they pose many implications for vulnerable and affected communities in voicing their concerns. A decrease in the role of public participation also gives way for haste decision making without adequate dissemination of information by interested parties. In effect, the Notification strikes at the root of public participation and shrouds the public consultation process with multiple difficulties.
It goes without saying that the precautionary principle calls us to tread cautiously through the tool of EIA. At this juncture we are called to question how cautiously are we actually treading if the Draft Notification, 2020 comes into force. There’s no dispute that EIAs ought to gravitate towards the goal of sustainable development. This means that in order to achieve sustainable development, processes of development must constitute environmental protection as an integral aspect and cannot be considered in isolation. Bearing this in mind, it is prudent to note that the impugned Draft Notification is packed with many contentious issues, which if not addressed, will only spell catastrophe for the environment.
 Objective Clause, Draft Notification on Environment Impact Assessment, 2020 [hereinafter referred to as “Draft Notification, 2020”], http://moef.gov.in/wp-content/uploads/2020/03/Draft_EIA2020.pdf
https://letmebreathe.in/2020/04/25/environmentalists-come-out-against-eia-Notification-2020/#:~:text=The%20latest%20draft%20of%20the%20Environment%20Impact%20Assessment%20(EIA)%20Notification,highways%2C%20ports%2C%20airport%20and%20big [last accessed on 23/06/202]
 Manju Meno & Kanchi Kohli, Environmental Decision-Making -Whose Agenda?, Economic and Political Weekly, Vol. 42, No. 26, p. 2490-2494 (Jun. 30 – Jul. 6, 2007),
 Clause 17, Draft Notification, 2020.
 Alembic Pharmaceuticals v. Rohit Prajapati, Supreme Court, Civil Appeal no 1526 of 2016,
 Clause 20(4), Draft Notification, 2020.
 Clause 10(ii), Notification on Environment Impact Assessment, 2006. http://www.environmentwb.gov.in/pdf/EIA%20Notification,%202006.pdf
 Appendix 4, Entry 3.1, Draft Notification, 2020.
 Appendix 1, Entry 3.1. Draft Notification, 2020.
 Clause 14(2), Draft Notification, 2020.
 Clause 14(3)(6), Draft Notification, 2020.
 Clause 7, Notification on Environment Impact Assessment, 2006.