FOCUS-FEBRUARY 2021

ENVIRONMENT IMPACT ASSESSMENT A TOOL FOR SUSTAINABLE DEVELOPMENT I. INTRODUCTION “Environment belongs to everyone but being exploited by few.” inferred from the words of Mahatma that “Nature has enough for everyone’s needs but not for their greed”. The living beings and non-living beings are all creation of nature. They are from its elements and finally join its being. It provides the bare necessity of food, clothing, and shelter. The increased demand of the increased population poses a challenge to modify or manipulate the nature and human beings choosing the later become a threat to his own existence. The increased demand of the increased population poses a challenge to mankind. The rapid population growth in the global scale is due to the fall in the death rate in developing countries2. In pursuit of finding a solution, man chose to use the nature to its optimum potential. This led to adopting modern methods to develop resources. The demand forced inventions to increase the production with the help of technology. With the new dimension of the need, the greed crept in which led to competition and higher exploitation of the natural resources. With this the impact on nature was noticed . As long as it remained reversible, there was no alarm. But when it crossed the limits of sustenance it was felt necessary to control the way of development through the environment laws. Thus the laws and the notifications came into force to ensure the sustainable development. The laws passed, however, were applicable only after the act had been committed to pollute beyond the scope of correction. Thus it was felt necessary to ensure the proactive intervention to prevent any violations advertently and in-advertently before the execution of the project. The resultant legislative instrument was the Environment Impact Assessment. To ensure the protection from the self-destructive ways of humans by adopting unsustainable growth, the tool of environment impact assessment was designed. The EIA is an effective first level protection activity towards ensuring sustainable development. It acts as a facilitator and the first level check post before the project execution. It is the study of environment impacts and recommends the necessary mitigation with controls to reduce the impacts to tolerable limits. It helps to make informed scientific decisions based on the scientific data to ensure the best economic benefits. This process enables to identify in advance the risks of the project in its project planning cycle. This integration is necessary in all phases of the project till completion. II. EIA NOTIFICATIONS AND LEGISLATIONS EIA was first mooted by US Environmental Protection Agency during the year 1970 to integrate environmental principles in decision making. In India the Environment (Protection) Act 1986 was passed in the Parliament in 1986. It had the provision to monitor the project implementation by passing subordinate legislation under the provision of sub-section (1) and clause (v) of sub-section 2 of section 3 of the above Act. Under these provisions, the EIA notifications were issued on 4th May 1994, 10th April 1997, 27th Jan 2000.and 14th Sep 2006 .This piece of legislation entailed the requirement of obtaining the environment clearance before commencement of the project as well as for capacity addition or modification of the project from the Central Government or the State Environment Impact Assessment Authority. The Notifications mandated that a Draft Environment Impact Assessment report should be prepared covering the base data and the environment impact assessment. Based on this report and its scrutiny by Environmental Assessment Committee/ State Environment Impact Assessment Authority /MOEFOREST the Environment clearance is issued. The environment clearance process involves screening, scoping, baseline data, impact prediction, EIA and assessment of alternatives, mitigation measures and environment statement, Public hearing, Environment Management Plan, Decision making, Monitoring the clearance conditions. The environmental pre-condition based on baseline data evaluation is covered in detail, but it did not include the details of the planned mitigation measures with the technology and design of mitigation measures. And the most important element of the environment, the ‘Social impact’ gets inserted meekly in few lines. The most of the mega projects were beaten by this aspect of the ‘Social impact.’ This was separately covered in the Right to Fair compensation and Transparency in Land acquisition, rehabilitation, and resettlement Act 2013.’ But surprisingly this has remained out of the ambit of the Environment departments even though the definition of the environment includes ‘Human beings’. The excessive reliance on the sample testing and its reports have affected the impact control mechanism. The sample can vary under different circumstances. The Bengalooru lake pollution case is still a challenge. The projects which have escaped the technological scrutiny of process failures cannot get the consistent acceptable results but after the project completion it becomes a problem to trace back and penalise the culprit. All these years the present EIA notification was in force and has controlled violations to some extent. But wherever it has been compromised the nature and Judiciary have rejected these projects. The cases of Tirupur Textile pollution and the Maradu apartment’s CRZ violation are the glaring examples of the compromise of EIA Notification requirements. In these two cases the industries and the apartments had commenced its work after getting through the EIA hurdles. Subsequently the pollution and the violation caught up with the project because of which the project had to be scrapped resulting in huge loss to the promoters. If the violation was taken care as per the EIA Notification at commencement stage itself, this situation would not have happened. This piece of legislation has inherent bureaucratic aberrations or defects which leaves the scope for discretion rather than rational evaluation. The points given in the EIA notification need be scrutinised serially and noted for compliance by the members of Environmental Assessment Committee (EAC) when they do the evaluation. But there is no such records available till date even though the SC judgements requires the same. Whatever laws we may frame, unless it is for the benefit of the society and with their consent, the system is bound to fail. ‘The essence of law lies in its spirit and not in its letter” said Salmond , the legal luminary. There are many case laws, worldwide where the bureaucratic authority forces the discretion in their decision for approval of the polluting industries. In one of the early case of Giacoelli v Italy the Court holds that the State has erred by granting the license to operate the polluting plant, in its exercise of power which violated the appellants Rights under the provision of Article 8 of the European Union Human Rights Convention. III. ISSUES & CONCERNS In India, in the famous case of Narmada Bachao, the Environment clearance was issued in 1983 by the Department of Science & Technology, GOI without gathering requisite data The Judgement came with minority opposing the same where the majority felt that the project need not comply retrospectively the EIA laws. This was an effort to resolve an issue which could have caused huge losses. In Tehri Dam case, also the Environmental Clearance (EC) was granted and the Court had to issue some modification which could have been done by the government agency before the commencement of the project under EIA scrutiny. In another case of Tamil Nadu waste Management facility where the EC was granted in 2008 for the purpose of acquiring the land for establishing the facility and not for the plant. This kind of manipulations lead to controversies. The Orissa POSCO and Vedanta mining cases also could have been prevented if the EIA process was effectively carried out and implemented with the ‘Social impact’ studies. Therefore the EIA process is the only process which can act as a barrier to protect the investment and the project from the environmental and social opposition. If we notice the post project opposition in mega projects and review the clause 13 of Notification 2006 regarding the preparation of the EIA Report by the accredited consultants, it is evident that the consultants prepare the report for clearance only and the involvement of the project proponents is not much. This leads to failure in later stage, because project proponents are not involved in baseline data? and issues. In most cases the EIA report prepared by consultants for the regulating authorities, only remains with them. There is no connect with the company executives after the clearance is obtained. This can be taken as one important issue which failed the major projects like POSCO and Vedanta in Orissa. The report has to be prepared by a team of the project proponent may be with the help of the consultant and not lead by the consultant. At least 25% of the EIA report preparation team members should be from the company headed by the Technical Head/Director to get involved in the process of collection of baseline data and its subsequent implication. The EIA notification 2006 has some provisions outlined in Appendix II 2.6 regarding control measures to be provided in the project planning. But it doesn’t seek the detailed design and data of the same leading to a vague mention of the facility. That facility mentioned is in the intention of seeking the Environment Clearance and not to mitigate the environment pollution. This is amply clear in the Bengalooru apartment Sewage Treatment Plant and the resulting pollution of lakes and rivers. Some of these projects pass through the EIA scrutiny by Environmental Assessment Committee / State Environment Impact Assessment Authority by vague mention of the control measures. And also the second level check provided by legislation under provision of the section 17(1) (f) of the Water (Prevention and control of Pollution) Act 1974 requires to ensure the correctness of the plans and the plants. But this aspect doesn’t get covered in EIA. This is one of the main reason where most of the Bengalooru apartment projects where the STP’s do not satisfy the design requirements. In view of the pollution, many agencies were involved to find a solution to the problem. And the result was the Government of Karnataka, Notification FEE 316 EPC 2015 dated 19.01.2016. It states that the Sewage should be treated and reused inside the premises. This order was prepared by the advice rendered by the Pollution experts of the GOK. But it is also seen as an effort to escape the scrutiny of the Courts and the public. Because, the authorities do not have any answer as to how to do it. They may also be aware that there is no effective technology which can force Indians to use the treated Sewage to the complete domestic usage. Therefore, such orders without any scientific solutions can only create additional issues than solve the problems. To avoid such situations, the control provisions with the design details and the scientific method of root cause analysis need to be incorporated in the EIA report to reduce the impact post the project implementation. It is possible to achieve the necessary growth by applying methodically the process and systems approach to this challenge. A systematic evaluation of the impact through a process approach as per the PDCA cycle is essential in implementing controls. The aspect-impact-assessment- controls process along with its matrix need to be part of the EIA. At the same time the Carbon foot print of the project and the stake holders to be evaluated to balance between the development and destruction. It should be given a dynamic structure to add on the latest concerns and policies of local governments or international bodies. The Sustainable Development Goals of the UN have become important in taking the country ahead. To mitigate the risk it is necessary to identify the aspect and impacts of the project implementation. As we had discussed above, the development is essential to provide the necessities for the increasing population. Therefore it is also necessary to identify the risk and control the same to live with it. These control measures are only provided by the technological solutions. The present reports emphasise more on the reliance on baseline data and sampling methodology without implementation of effective technological design to obtain the correct sample. To ensure the correct control measures, tit would be necessary to identify the right cause. For that purpose a systematic root cause analysis can be carried out. The two of the examples of the method of the root cause analysis are given below. These issues can be easily solved by using the tools provided in the ISO 14000 management system standards and the ISO 31000 Risk management system. One of the simple root cause analysis is WHY WHY analysis as shown below. 1. Why did the pollution take place? Ans: 2. Why did the pipe leak? Ans: 3. Why did the pipe leak dirty sewage? Ans: 4. Why the sewage was not treated? Ans: 5. Why was it not designed correctly? Ans: NOTE: WITH MINIMUM 5 QUESTION, EACH QUESTION MUST LEAD TO THE NEXT The EIA Notifications 2006 has been successful to the extent that it has managed to control the unscrupulous erratic growth. The EIA notifications has been a boon to the environmental friendly society but at the same time others feel it is a stumbling block..The process of evaluating the impacts for the aspects that cross the limits has been envisaged and catered in the said notifications but it has its own challenges when those in the position to evaluate the same fail to understand the intent and content of this innovative tool. The modern science, technology, and law have to join together in combatting this issue. The Notifications 2006 has the aspects of science and law to some extent but the technological solutions seem to be little overlooked. The issues of impacts can be controlled with only the technological solutions and therefore it needs to give emphasis in the notifications. The section 17(1)(f) provides for the technological evaluation by SPCB but it becomes late after the construction. Therefore along with the Pollution Boards, the SEIAA should also take up the evaluation of the proposed design of the ETP or STP or any other control arrangement before construction. This can for once easily be standardised for the quantity of discharge and composition of effluents through agencies like ISI or CPCB. If the similar requirements are placed EIA can exclude the process which will be simpler and effective. The slackness in compliance of this law, has resulted in the uncontrollable sewage pollution the cities. There is no agency which seeks the detailed design of the Sewage Treatment Plant. EIA report also adopts the method of storytelling than being technological document. None of these reports of high rise buildings have given the detailed design with accurate capacity and dimensions. It is a known fact the SPCB’s also lack the required competency in this subject. All these failures can be prevented at the initial proactive stage of Final EIA scrutiny in SEAC/SEIAA. There is no necessity to fear but approach with technological controls then the problems can be easily mitigated or else we face difficulties later on. In one of the case of Keystone Realtors Pvt Ltd vs Shri Anil V Tharthare and others, project proponent had obtained clearance for expansion of project by merely amending the prior EC granted by SEIAA. Supreme Court held that the fresh EC is must for expansion of projects beyond limits approved by prior EC. Therefore it becomes necessary to prepare and implement an effective Environment, Health, and Safety and Social Impact Assessment of every project. The identification of the aspects and the impacts of the environmentally dangerous substances and analysing the risk due to them on the people and environment is an important phase of any environmental management system. The effluent or sewage has an impact on the environment and the people, therefore, the various impacts of this activity could be identified in a matrix to evaluate and conclude the exact controls required for effective mitigation. The action could be identified and recorded under this matrix. A Control Procedure is required for each impact depending on its scoring and legal requirements. With these issues in hand, the Ministry of Environment, Forests and Climate Change has proposed a new draft EIA Notification 2020. The proposed new EIA notification 2020 has few amendments which can help polluting projects to pass through the scrutiny of this first level evaluation. It is pertinent mention here that the legal monitoring system is tougher in developed countries than those in India. But the environment impact signatures are so strong which cannot be hidden, even if it is allowed to pass through EIA by compromising. The compromising of the 2006 Notification will only result in destroying the industrial peace. We have a glaring example of the Tirupur textile industries pollution, Maradu, POSCO & Vedanta case. Likewise even though the system is compromised, the nature will not show sympathy and the subsequent pollution cannot escape the scrutiny of Judiciary and nature together resulting in the failure of the project. This will be more harmful to the industries than being helpful. Lawlessness doesn’t ensure a sustainable growth but it certainly ensure growth of unscrupulous societal weeds. The luminaries of legal theory of Jurisprudence “Making innumerable statutes, men merely confuse what God achieved in Ten”. In the law making science of Jurisprudence, make a point Montesquieu states that the “Laws are the creation of nature and should answer the needs of the time and place.’ Others also explain that the essence of law is acceptance, regulation and observance by the people and it is the national character. It has its source in the general consciousness of the people and without which it is bound to rebound. Progressive societies make law by legal fiction, equity, and legislation . Therefore, these laws be it the Act of the Parliament or the Notifications, need to have societal sanctions as a whole or else it will have an long-lasting impact on our nature and society. V. CONCLUSION AND WAY FORWARD The environment being an area of many subjects needs to be viewed in a wholesome approach to deal with it effectively. The legislations and the notifications have given some teeth to the government to ensure effective implementation. The projects planning and monitoring is stated but it remains only on paper. There is no actual follow up of the issue on ground. Once the Environment clearance is issued by the department, then it is reviewed only for renewal. There is hardly any application rejected on the basis of the conditions being tough. Therefore there is no reason why this proactive tool to be diluted to allow, potential polluting industries or projects to pass through the scrutiny. Instead it needs to be strengthened more as a facilitating tool to ensure the compliance at the initial stages to avoid the challenges of scrapping the project affecting the life of many families. It may also be noted that the legal monitoring system is tougher in developed countries than other developing or poor countries. Lawlessness doesn’t ensure a sustainable growth but it certainly ensure growth of unscrupulous unsustainable development. 1. Presently the EIA reports emphasise on explanation without numerical data and mathematical calculations. It is a known fact that anything can be measured can only be managed well. Every aspect of the impact should be depicted with numerical data to evaluate the significance of the risk. There should be a matrix method deployed to evaluate the same. The EIA notification 2006, has a detailed description of the process but the EIA reports contents should be more filled with scientific data, to make a decision than the explanation. The EIA report should consist of design and data which should be evaluated with the calculations for design of technological systems for mitigation and control of the impact. Use and application of ISO 14000 requirements in EIA evaluation can ease the situation further. 2. For evaluating a project and its situation, the EIA reports should consist of Legal register, Impact Matrix, and Root cause analysis. The persons connected should have adequate knowledge, training, and competence. These members of the SEIAA and EAC and SPCB and CPCB personnel should be trained and keep abreast of all the tools of Root Cause Analysis (RCA), Aspect Impact Identification and risk analysis as per the international standards. 3. The environment laws and the notifications were drafted mainly for the industries. The aspect and impact of the Real Estate projectsdoes not find mention in the statutes. There is no focus on the design aspect of the Sewage Treatment plants. The section 17(1)(f) which requires inspection of the control measures should be monitored to ensure its implementation. The provision of law using the the section 33A, is mainly in the point of industrial pollution where the polluter is same as the founder. But this need to be reviewed for the apartments where the project proponent is different from the residents not connected with the design and implementation and they suffer for the error of the project proponent. 4. Till date in India, except one entry in EIA Notification, the environment laws, were drafted with the industries in mind and not the residential projects. This is causing the real estate industry to go scot free polluting the lakes and the rivers. As a result the home buyers of the apartments face serious problems of legal violation threat which they have not committed. Therefore it is time that an Apartment pollution rules are drafted to ensure the construction of legally compliant buildings and mega real estate projects. 5. The provision of the Social impact assessment should find a place in the EIA procedures as in the Right to fair compensation and transparency in land acquisition, rehabilitation, and resettlement Act 2013. 6. The Environment subject remains a child of few groups and departments, when every person is a stake holder in the protection or destruction of environment. The initial attempt to club the Ministry of Environment with the Forest could be justified but now with the change in the global environment scenario, it may be necessary to have a dedicated Environment, ecology and Climate Change Ministry and department with the experts from all the field of science and technology to ensure sustainable development with the implementation of effective control measures. VIDYADHAR DURGEKAR Author is Ex Deputy Commandant, Sustainability Assessor and Auditor Environmental, Health, Safety, and Social Accountability Management System auditor and an author of two novels and poetry collections.