The Teesta dam breach in Sikkim in early October and the recent floods and landslides in Himachal Pradesh are a stark reminder of the havoc our development model is wreaking on our environment and ecology especially in the mountains. It is imperative to assess the worthiness of any significant human endeavour in terms of its impact on the environment.
The basis of an EIA
Environment Impact Assessment (EIA) is one such process defined by the United Nations Environment Programme (UNEP) as a tool to identify the environmental, social, and economic impacts of a project before it is implemented. This tool compares various alternatives for the proposed project, predicts and analyses all possible environmental repercussions in various scenarios. The EIA also helps decide appropriate mitigation strategies. The EIA process would need comprehensive, reliable data and would deliver results only if it is designed to seek the most appropriate, relevant and reliable information regarding the project. Hence, the base line data on the basis of which future likely impacts are being predicted are very crucial.
In India, a precursor to the EIA began in 1976-77 when the Planning Commission directed the Department of Science and Technology to assess the river valley projects from the environmental point of view. It was later extended for all those projects that required approval from the Public Investment Board. Environment clearance then was just an administrative decision of the central government. On January 27, 1994, the Union Ministry of Environment, Forests and Climate Change under the Environment (Protection) Act 1986 (EPA), promulgated the first EIA notification making Environmental Clearance (EC) mandatory for setting up some specified new projects and also for expansion or modernisation of some specific activities. The notification of 1994 saw 12 amendments in 11 years before it was replaced by the EIA 2006 notification.
The hallmark of the 2006 notification was the decentralisation of the process of EC. State governments were also given powers to issue EC in certain cases. The 2006 notification has also been amended, in the name of fine-tuning the process several times. The Union Ministry of Environment, Forests and Climate Change floated a draft EIA in 2020 for public comments which created quite a furore as it was perceived to be pro industry and compromising the ecological concerns.
Used diligently, the EIA could be the most potent regulatory tool in the arsenal of environmental governance to further the vision of sustainable development in the country.
The EIA 2006 notification lays down the procedure as well as institutional set-up to give environmental clearance for the projects that need such clearance as per this notification. Only projects enumerated in the schedule attached to the notification require prior EC. An EIA is not required for many projects as they do not fall within the ambit of this notification.
This notification has categorised projects under various heads such as mining, extraction of natural resources and power generation, and physical infrastructure. Unfortunately, the threshold limits beyond which EIA is warranted for all these projects is the same across the country.
Despite all levels of government being acutely aware of the special needs of the Indian Himalayan Region (IHR), the region’s vulnerabilities and fragility have not been considered separately. While some industries mentioned in the schedule to the notification cannot be set up in the IHR States due to the industrial policies of the respective States, other industries and projects have to meet the same threshold in the rest of the country. Even the draft 2020 notification which was floated for public discussion does not treat the IHR differently than the rest of the country and is not cognisant of the special developmental needs of IHR.
Flaws in the graded approach
The Indian regulatory system uses a graded approach, a differentiated risk management approach depending on whether a project is coming up within a protected forest, a reserved forest, a national park, or a critical tiger habitat. The stringency of environmental conditions proposed in the terms of references at the scoping stage of the EIA process is proportionate to the value and sensitivity of the habitat being impacted by the project.
One unfortunate miss from this graded approach for differentiated risk management has been the IHR. Despite its special needs and as an area of immense ecological importance to the entire country (it serves as a water tower and the provider of ecosystem services), this region is treated like any other part of the country.
While categorising projects it is important that the impacts of all such projects and activities are seen in the IHR in the context of this region’s fragility and vulnerability vis-à-vis ecology and environment. We have enough systemic understanding that the Himalayas are inherently vulnerable to extreme weather conditions such as heavy rains, flash floods, and landslides and are seismically active. Climate change has added another layer of vulnerability to this ecosystem. Despite this understanding of the fragility and vulnerability of the Himalayas, there is no mention of a different set of environmental standards needed if the project is located in the IHR.
The increasing frequency with which the Himalayan States are witnessing devastation every year after extreme weather conditions shows that the region is already paying a heavy price for this indifference.
The needs of these mountains could be addressed at all four stages of the EIA — screening, scoping, public consultation, and appraisal — if the yardstick for projects and activities requiring EC in mountainous regions is made commensurate with the ecological needs of this region.
General conditions mandated for all projects at the end of the notification could also have had a clause about the IHR or mountains above a certain altitude, or with some specified characteristics that could increase the liability of the project proponent.
What ails the EIA
There is no regulator at the national level, as suggested by the Supreme Court of India in 2011 in Lafarge Umiam Mining (P) Ltd.; T.N. Godavarman Thirumulpad vs Union of India to carry out an independent, objective and transparent appraisal and approval of the projects for ECs and to monitor the implementation of the conditions laid down in the EC. The EIA process now reacts to development proposals rather than anticipate them. Due the fact that they are financed by the project proponent, there is a veering in favour of the project. The process now does not adequately consider cumulative impacts as far as impacts caused by several projects in the area are concerned but does to some extent cover the project’s subcomponents or ancillary developments.
In many cases, the EIA is done in a ‘box ticking approach’ manner, as a mere formality that needs to be done for EC before a project can be started. The consequences of all these limitations are amplified in the IHR as on top of the inherent limitations of the process, the EIA process is not at all cognisant of the special needs of the IHR. Policymakers would do well to explore other tools such as the strategic environmental assessment which takes into account the cumulative impact of development in an area to address the needs of the IHR as a fundamental policy.
Archana Vaidya is a Natural Resource Management (NRM) and Environment Law consultant and an advocate at the High Court of Himachal Pradesh. Vikram Hegde is an advocate in the Supreme Court of India
