MoEF&CC: Withdraw Draft EIA Notification 2020. India needs substantive NEW EIA Law
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Coalition for Environmental Justice in India
Demand the withdrawal of Unconstitutional and Environmentally Detrimental Draft EIA Notification 2020
The Union Ministry of Environment, Forests and Climate Change (MoEF&CC) put out the Draft Environment Impact Assessment Notification 2020 for public comment on 23rd March 2020, a day before Prime Minister Narendra Modi announced a nation-wide lockdown as a means to contain COVID-19 pandemic. The Notification was thus issued for public comments when the Indian Environment Minister Mr. Prakash Javdekar would have been well aware of the impending lockdown, as the decision was an outcome of discussions in the Union Cabinet. He would have also known that with imposition of lockdown almost all fundamental freedoms of association guaranteed by the Constitution of India would be suspended and normative means of communication would be unavailable.
Yet, Mr. Javdekar chose to put out the draft Notification for public comments fully aware most Indians would be unable to engage meaningfully with its social, environmental, political, cultural and economic implications – implications that are intricately linked to Article 21 of the Constitution, the Fundamental Right to Life, Livelihood and a Clean Environment. The Hon’ble Minister also knew that the wide public would not be able to respond meaningfully to critique the proposed draft as means normative to democratic functioning were unavailable, such as organizing workshops and seminars, meeting with Ministry officials, meeting with elected representatives, and also the freedom to organize protests – each and every of such act being an intrinsic part of the Article 19, the Fundamental Right of Expression, the celebration of which is key to the functioning of a democratic country. Besides, the decision to issue the draft for public comments (for a period of 60 days) was also taken when families and communities were comprehensively absorbed with the onerous task of dealing with consequences of the pandemic on the one hand, and the brutal lockdown on the other.
During the lockdown, most across India were struggling to survive, as it had blocked access to work, blocked access of movement and also in many regions this meant lack of access to communication. With over 80% of India’s workforce in the non-formal sector, and thus with income having dried up instantly, most were forced to fend for themselves. Millions waited in endless queues everywhere - for food, water, rations, and for transport which was rarely available. The lockdown which was enforced without any thought to such consequences, resulted in an unprecedented crisis - massive reverse migration of labourers in urban areas back to their families in villages. These were people who had left villages for cities in search of living due to crisis in farming which had resulted due to the systemic lack of support for farmers from the Government. And here they were walking into another uncertain future, without money, with whatever little they had as belongings – women, children, men, elders – in the blazing summer heat of India. Hundreds, sometime thousands of kilometres.
There were no institutional mechanisms in place to provide them water, shelter or food. Several even faced brutalities at the hands of police and administration, and were restrained from walking home, even pushed back. In such chaotic and inhumane conditions it was quite simply impossible for them, or anyone at all, to engage with the Draft Notification.
At this time, almost all public offices were dysfunctional at Central, State and Local Governments for only a third, or less, of the employees were at work. Besides, normal information flows were unavailable, not even postal services. Only those with access to smart phones and internet could communicate. But, the last thing on their mind was to worry about the proposed EIA Notification and its impact on them. In the newly formed union territory of Jammu and Kashmir, there had been a lockdown imposed several months ago as a consequence of which there was no reliable internet, no television, no newspaper, and also no mobility. They were unlikely to even know this Draft Notification was published for their comments.
Clearly, therefore, pandemic and associated lockdowns cannot be the context in which laws and policies can be promoted. This when the EIA Notification, which despite being a subordinate law, is a critical piece of legislation that accords enormous power to the Ministry’s Executive, and environmental parastatals, viz., Environment Appraisal Committees (EAC) and State Environmental Impact Assessment Authorities (SEIAA). Such State appointed agencies decide the fate of millions of lives and livelihoods, and have the extraordinary power to determine what happens to India’s forests, coastal areas, mountainous regions, commons, rivers, lakes and streams and such other natural resources, and largely without sufficient or meaningful public review in consonance with the Principle of Free Prior and Informed Consent. The Draft Notification was also only published in English and Hindi and the fact that it was displayed on MoEF&CC’s website was made known mainly through a press release, which almost did not catch anyone’s attention as newspapers were by and large unavailable to readers during the lockdown and beyond.
The security of India’s present and future generations is hinged on ensuring power of the State and its executive is directed in deeply democratic and ecologically sensible ways. This power needs to be exercised with comprehensive awareness and appreciation of the fact that ecological and economic security of present and future generations is ensured only when India’s natural resources are very carefully used for common good. It also needs to be ensured that decisions do not result in recklessly enlarging profiteering by a small coterie of industrialists, corporations and investors, as is the case now. Therefore, the prevailing dire situation demands India invests all efforts to ensure biodiversity is conserved and its regenerative capacity is fully protected. Besides, it is essential that mineral wealth is not allowed to be extracted recklessly with irreversible consequences. This demands that we must try and undo our irresponsible excesses, and work fiercely to mitigate Climate Change in order to do our part in saving stability of our living planet.
A bare reading of the proposed Notification, on the contrary, reveals MoEF&CC is enabling perverse onslaught on India’s biodiversity and natural resources, when its mandate is to be the voice that speaks out boldly against destructive development . By the proposed law, MoEF&CC is condemning people of India to a permanent crisis of finding ecologically secure life and livelihoods from which the country will never recover.
If there ever has been an event that should remind the Ministry of its Constitutional obligations and its due role in ensuring development does not consume humanity, and ecological stability, it is the COVID-19 pandemic. World-wide, people and governments are waking up to the brutal consequences of this disease and are comprehending the impacts of taking nature’s complexities lightly, for the spread of the zoonotic COVID-19 pandemic is a direct outcome of such gross neglect. Yet, in total disregard to these realities, MoEF&CC chose the time when the pandemic is ravaging across the planet to promote its most controversial proposal to enact EIA Notification 2020. The ideas is to bring in a piece of law that weakens peoples’ capacities to decide their futures by replacing what is a weak 2006 EIA Notification that has been systematically weakened by a series of amendments and clarificatory notes. In this manner the Ministry has sought to wreck whatever feeble protection there is now for human rights and environment in India’s environmental laws.
In light of what is stated above, and on the basis of analysis offered about how the proposed Draft EIA Notification 2020 is unconstitutional (see Annexure), the undersigned who include representatives of peoples’ movements, environmental and social action organisations and networks, as well as public spirited researchers, academicians and individuals, demand that:
· The Draft EIA Notification 2020 must be immediately withdrawn as the manner in which it has been promoted by MoEF&CC is subversive of democratic decision making and promotes unconstitutional expansion of Executive power over peoples’ lives, livelihoods, and natural resources.
· MoEF&CC must promote laws, regulations and policies in a manner that is deeply respectful of the federal nature of India’s polity, and they must be rooted in the Constitution and be within the framework of the Environment Protection Act, 1986. (The proposed Draft EIA Notification 2020 does the very opposite.)
· MoEF&CC must act as the primary and proactive advocate in the governance schema that forestages and ensures integration of environmental and social justice concerns in economic decision making. It should not allow environmental norms, regulations and laws to be subordinate to business, corporate and commercial interests. Most importantly, environmental decisions must be so directed as to uphold human rights, protect environment and enhance biodiversity conservation.
· The actions of MoEF&CC must at all times be in advancing Article 21 (Right to Life, which includes the Right to Livelihood and a Clean Environment), Article 19 (Right of Expression) and must be in conformance with Article 48 A (mandating State to be proactive custodian of forests and wildlife) and Article 51 A(g) (advocating it is every one’s Constitutional duty to compassionately protect nature and conserve biodiversity) of the Constitution of India.
· MoEF&CC in all its actions must be guided by several progressive Principles of environmental administration and jurisprudence invoked by the Supreme Court of India, including the Public Trust Doctrine, Principle of Inter-generational Equity, Polluter Pays Principle, Precautionary Principle, Principles of Absolute Liability, and Principle of Prior and Informed Consent, and the variety of international treaties that India is party to for protecting nature and human rights.
Taking into account all of the above, we demand that
1. MoEF&CC must evolve a comprehensive and substantive law to monitor environmental impact assessment and regulate decision making relating to environmental and social impacts of all projects in India, not merely those the Ministry considers have significant impact. The question of significance of impact must be an outcome of due processes of the Constitutional 73rd Amendment (Panchayat Raj) Act 1992 and Constitutional 74th Amendment (Nagarpalika) Act 1992, in particular Articles 243 ZD and 243ZE. In addition, the new law must be in comprehensive conformance with the Panchayat (Extension to Scheduled Areas) Act 1996, Biodiversity Act 2002, Right to Information Act 2005, Forest Rights Act 2006, and laws addressing pollution, regulating factories, land use planning and land acquisition, occupational health and such other laws. Most critically, it has to be a law that integrates the deep and widespread competence of Central and State Pollution Control Boards in such decisions, particularly given that they have substantive roles in monitoring impacts, especially on air, water and soil.
2. The new law must be the outcome of deeply democratic nation-wide consultations, respectful of federated governance and guided by values espoused in decisions of the Delhi High Court in Vikrant Tongad vs Union of India -MOEFCC (WP 3747/2020) and of the Karnataka High Court in United Conservation Movement Charitable and Welfare Trust vs Union of India (WP 8632/2020), amongst others, and comprehensively compliant with the Principle of Free, Prior and Informed Consent.
3. MoEF&CC officials must carefully study values of environmental governance espoused in the 1980 “Report of the Committee for Recommending Legislative Measures and Administrative Machinery for Ensuring Environmental Protection” and ensure that any action advancing reforms in environmental law, policy and regulatory practices must be consonant with the aims, objectives and recommendations espoused therein. Similarly, MoEF&CC must carefully consider and ensure that its actions comply with the National Forest Policy, 1988.
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