ENVIRONMENT IMPACT ASSESSMENT

NOTIFICATION, 2020: A CRITICAL ANALYSIS

1. INTRODUCTION
On March 23, 2020, the Ministry of Environment, Forest and Climate Change released a draft
Environment Impact Assessment (EIA) Notification for public consultation and invited
comments by stakeholders on the same within 60 days. EIA is a process by which any new
infrastructural development project for example, the construction of a highway or dam etc. needs
to get Environmental Clearance (EC) from the concerned regulatory authority. The process
affords an opportunity to the authority to assess the adverse impacts that the proposed new
project would be having on our environment. EC is then either given or rejected based on doing a
cost benefit analysis and weighing the benefits of the project against the requirement for
sustainable development. This allows the State to maintain a harmonious balance between the
two. If accepted and finalized, the notification will replace the EIA framework that is currently in
place since 2006.

The current research work is an attempt at critically analyzing the features of draft EIA
notification, 2020.

2. SALIENT FEATURES OF THE NEW DRAFT NOTIFICATION

2.1. Replacement of the incumbent 4-Stage Process by a 6-Stage process

The 2006 framework provides for 4 stages in the process of EIA: (1) Screening, (2) Scoping, (3)
Public Consultation and (4) Appraisal. The draft EIA Notification, 2020 proposes a 6 stage
process: (1) Scoping, (2) Preparation of Draft EIA, (3) Public Consultation, (4) Final EIA, (5)
Appraisal and (6) Grant or Rejection of EC/EP.

However, the change is mere in the nomenclature as these steps exist even under the current
framework, the only difference being the 2006 notification does not term each step of the process
as a different stage. However, there is one significant difference, and that is the “Screening”
stage which exists under the 2006 notification is nowhere to be found under the draft
notification. This is a stage where Category B projects are scrutinized by the State Level Expert
Appraisal Committee (SEAC) to determine if the project requires further environmental studies
for preparation of its EIA report. The Category B projects are further divided into Category B1
(projects which do require EIA report) and Category B2 projects (projects which do not require
EIA report).

Lack of such a provision implies that Category B projects will no longer undergo this additional
scrutiny. The further division of category B projects into Category B1 and B2 shall therefore,
now depend on the spatial extent of potential impact on human health, natural and man-made
resources.

2.2. Effective Increase in the Number of Categories of Projects

The current framework under the 2006 Notification consists of only 3 categories of projects- A,
B1 and B2. However, the draft EIA Notification proposes an increase in the number of
categories of projects to 5:

i. A projects (require prior EC from the Ministry),

ii. B1 projects fulfilling General Conditions mentioned in Clause 3 (require prior EC
from the Ministry),
iii. B1 projects not fulfilling General Conditions mentioned in Clause 3 (require prior
EC from SEIAA or UTEIAA),before
iv. B2 projects which are required to be placed Appraisal Committee (require prior
EC from SEIAA or UTEIAA), and
v. B2 projects not required to be placed before the Appraisal Committee (require
prior EP from SEIAA or UTEIAA).

2.3. Environment Permission

Under the current framework, Category B projects which do not fulfill the general conditions, do
not require a prior Environmental Clearance. However, the new framework under the draft
notification of 2020, proposes that Category B2 projects which are not required to be placed
before the Appraisal Committee, although do not need a prior EC, however, they do need a prior
Environment Permission, a concept which is alien to the existing framework. However, the draft
notification does not further elaborate on how an EP will be different from an EC and therefore,
it is recommended that some more clarity be provided on an EP before the final notification is
released.

The other provisions with respect to scoping, public consultation, approval by appraisal
committee, validity of EC for 10 years, transfer of EC, post-approval monitoring and circulation
of information about the grant of EC etc. have more or less remained the same and any other
significant change has been dealt with in the subsequent sections.

The draft EIA Notification, 2020 has brought several changes to the existing framework. While
some of them are salutary and worthy of being retained, some might need reconsideration. The
next two sections of this work deal respectively with such changes along reasons for why they
should be kept or reconsidered or kept with some modifications.

3. WHAT IS EIA?

In India, Environment Impact Assessment is statutorily backed by the Environment Protection

Act, 1986 which contains various provisions on EIA methodology and process. United Nation
Environment Programme defines Environmental Impact Assessment (EIA) as a tool used to
identify the environmental, social and economic impacts of a project prior to decision-making.

It is an important process for evaluating the likely environmental impact of a proposed project. It
is a process whereby people’s views are taken into consideration for granting final approval to
any developmental project or activity. It is basically, a decision-making tool to decide whether
the project should be approved or not.

In the case of Samarth Trust Through its General Secretary Manish Manjul and Another vs.
Union of India, Ministry of Environment and Forests Through its Secretary and Others, the
Delhi high court had considered EIAs- a part of participatory justice in which the voice is given
to the voiceless and it is like a Jan Sunwai, where the community is the jury.
Also, the EIA process is an outcome of the 1992 Rio Declaration, which says that environmental
issues are best handled through the participation of all concerned citizens and that states must
provide an opportunity to citizens to participate in decision-making processes.

3.1. THE EIA PROCESS INVOLVES:

i. Screening: The project plan is screened for scale of investment, location and type of
development and if the project needs statutory clearance.
ii. Scoping: this stage decides which impacts are necessary to be assessed. This is done
based on legal requirements, international conventions, expert knowledge and public
engagement. This stage also finds out alternate solutions.
According to Clause 2(49) of Environment Impact Assessment Notification, 2020,
Scoping means the process of determining the Terms of Reference by the Regulatory
Authority for the preparation of EIA Report, for the project, seeking prior-EC .
iii. Collection of baseline data: Baseline data is the environmental status of study area.
iv. Impact prediction: Positive and negative, reversible and irreversible and temporary and
permanent impacts need to be predicted which presupposes a good understanding of the
project by the assessment agency.
v. Mitigation measures and EIA report : The EIA report should include the actions and
steps for preventing, minimizing or by passing the impacts or else the level of
compensation for probable environmental damage or loss.
According to Clause 2(23) of Environment Impact Assessment Notification, 2020, EIA
Report is the document prepared by the Project Proponent through an ACO for the
proposed project based on the Terms of Reference prescribed by the Regulatory
Authority and as per the generic structure given in the Appendix-X of this notification;
a. “Draft EIA Report” is the EIA Report prepared for the purpose of Public
Consultation or in accordance with the directions of the Regulatory Authority;
b. “Final EIA Report” is the EIA Report prepared, after public consultation,
including mitigation measures duly addressing the concerns raised by the public,
time bound action plan, budgetary provision for the commitments made therein
by the project proponent, for the purpose of appraisal;
 vi. Public hearing: On completion of the EIA report, public and environmental groups
living close to project site may be informed and consulted.
vii. Decision making: Impact Assessment Authority along with the experts consult the
project-in-charge along with consultant to take the final decision, keeping in mind EIA
and EMP (Environment Management Plan).
viii. Monitoring and implementation of environmental management plan: The various
phases of implementation of the project are monitored.
ix. Assessment of Alternatives, Delineation of Mitigation Measures and Environmental
Impact Assessment Report: For every project, possible alternatives should be identified,
and environmental attributes compared. Alternatives should cover both project location
and process technologies.
x. Once alternatives have been reviewed, a mitigation plan should be drawn up for the
selected option and is supplemented with an Environmental Management Plan (EMP) to
guide the proponent towards environmental improvements.
xi. Risk assessment: Inventory analysis and hazard probability and index also form part of
EIA procedures.

4. ISSUES PERTAINING TO DRAFT EIA NOTIFICATION 2020

4.1. WHAT ALL ACTIVITIES ARE REMOVED FROM THE LIST OF PUBLIC CONSULTATIONS,
AND INCLUDED IN THE CATEGORY B2.

Among the major departures from existing regulations is the removal of several activities from
the purview of public consultation. A list of projects has been included under Category B2,
expressly exempted from the requirement of an EIA.

The projects under this category include offshore and onshore oil, gas and shale exploration,
hydroelectric projects up to 25 MW, irrigation projects between 2,000 and 10,000 hectares of
command area, small and medium mineral beneficiation units, small foundries involving furnace
units, some categories of re-rolling mills, small and medium cement plants, small clinker
grinding units, acids other than phosphoric or ammonia, sulphuric acid, micro, small and
medium enterprises (MSMEs) in dye and dye intermediates, bulk drugs, synthetic rubbers,
medium-sized paint units, all inland waterway projects, expansion or widening of highways
between 25 km and 100 km with defined parameters, aerial ropeways in ecologically sensitive
areas, and specified building construction and area development projects.

According to clause 5 of Draft EIA notification 2020, Category ‘B2’ based on the potential
social and environmental impacts and spatial extent of these impacts.

All projects under Category ‘B2’ that are required to be placed before Appraisal Committee as
specified in the Schedule, shall require prior-EC from the SEIAA or UTEIAA, as the case may
be and according to sub clause 6 of All other projects under Category ‘B2’ (other than those
projects specified as specified above), shall require prior-EP from the SEIAA or UTEIAA, as the
case maybe. These projects shall not be placed before Appraisal Committee.

4.1.1. Stages in the Prior Environment Clearance or Prior Environment Permission Process
for Category B2:-

According to Clause10(2) The Prior Environment Clearance process for Category ‘B2’ that are
required to be placed before Appraisal Committee as specified in the Schedule, will comprise of
a maximum of three stages. The three stages, in sequential order, are:

Stage (1): Preparation of EMP Report;

Stage (2): Appraisal;

Stage (3): Grant or Rejection of Prior Environment Clearance.

And according to Sub Clause (3) The Prior Environment Permission process for Category ‘B2’
that are not required to be placed before Appraisal Committee as specified in the Schedule, will
comprise of a maximum of two stages. The two stages, in sequential order, are:

Stage (1): Preparation of EMP Report;

Stage (2): Verification of completeness of the application by the Regulatory Authority;

and

Stage (2): Grant or Rejection of Prior Environment Permission.

Provided that the ACO preparing the EMP and the Project Proponent, shall be responsible for the
adequacy of the EMP. Provided further that the EMP Report is kept on record and the
Regulatory Authority reserves the right to prescribe additional measures for the project.

There is apprehension that the exemption from EIA and public consultation for listed B2
category activity and expansion and modernization projects will seriously affect the
environment, since these will be carried out without oversight.

4.2. WHAT IS THE CONCEPT OF POST FACTO ENVIRONMENTAL CLEARANCE INCULCATED

IN THE SAID NOTIFICATION
The draft of the Environment Impact Assessment (EIA) notification 2020 is going to replace the
EIA notification 2006 that regulates the environment clearance given by the national government
for projects such as dams, mining, thermal power plants, infrastructure projects like highways,
ports, airport and big construction projects.

The new draft allows for post-facto approval for projects. It means that the clearances for
projects can be awarded even if they have started construction or have been running phase
without securing environmental clearances. This also means that any environmental damage
caused by the project is likely to be waived off as the violations get legitimised. As the only
remedy would be to impose a fine or punishment; but that would not reverse the detrimental
consequences on the environment. Post facto approval is the derogation of the fundamental
principles of environmental jurisprudence and violation of the “precautionary principle,” which
is a principle of environmental sustainability.

In it, it seeks to legitimise projects that have violated environment clearance norms by giving
them a chance for post-facto approvals as long as that project is permissible in the area. Cases of
violation of the norms would include those where projects either start the construction or
excavation or undertake expansion without prior environment clearance.

The union environment ministry has previously too pushed the concept of post-facto clearance
for industries. In March 2017, it came out with a notification that provided industries with a
chance to regularize projects that started construction or undertook expansion and modernisation
without prior environment clearance. A similar circular was issued by the environment ministry
in May 2002 as well, giving a “last and final opportunity” to errant projects.
Though the 2017 notification was supposed to be a one-time chance it has become a fait
accompli situation as, since 2017, the expert committee of the environment ministry has held at
least 31 meetings for clearing hundreds of such projects that violated the environment clearance
norms.

Now, the draft EIA 2020, which seems to be creating a permanent set up for such projects to
seek post-facto approval, has come under criticism from environmentalists and activists.

“It has become a regular feature with the environment ministry. It had brought an order for one
time chance for such projects that started without EC. It was later quashed by the National
Green Tribunal. The ministry has failed to have a clear stand on this issue. Simply put, a project
that starts without an EC is a violation of the Environment Protection Act 1986 but if you ask the
ministry about the action taken against such violators they will have nothing to show,”

“This practice of the ministry to allow projects violating the law is against the ‘polluter pays
principle’. Instead, it is propagating a pollute and pay principle that you come, damage and then
get away by paying fine,”

In the case of Alembic Pharmaceuticals Ltd. Vs. Respondent: Rohit Prajapati and Ors
(2020)1.The Supreme Court of India upholds the principles of environmental law which conflict
with the direction that the Indian government’s Ministry of Environment, Forest and Climate
Change (MoEFCC) seeks to take.

“The concept of an ex post facto EC is in derogation of the fundamental principles of

environmental jurisprudence and is an anathema to the EIA notification dated 27 January 1994.
It is, as the judgment in Common Cause holds, detrimental to the environment and could lead to
irreparable degradation,”

The court held that while some of the environmental damage caused by the operation of the
industrial units would be irreversible, however, to the extent possible, some of the damage can be
corrected by undertaking measures to protect and conserve the environment.

The bench observed a retrospective or an ex post facto environment clearance is “alien to

environmental jurisprudence” because, before the issuance of an EC, the statutory notification
1
Civil Appeal Nos. 1526, 3175, 6604-6605 of 2016 and 1555 of 2017
(EIA notification 2006) warrants careful application of mind and a study into the likely
consequences of a proposed activity on the environment.

“An EC can be issued only after various stages of the decision-making process have been
completed. Requirements such as conducting a public hearing, screening, scoping and appraisal
are components of the decision-making process which ensure that the likely impacts of the
industrial activity or the expansion of an existing industrial activity are considered in the
decision-making calculus,” the Supreme court bench held, adding that allowing for “an ex post
facto clearance would essentially condone the operation of industrial activities without the grant
of an EC.”

“In the absence of an EC, there would be no conditions that would safeguard the environment.
Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to
the environment. In either view of the matter, environment law cannot countenance the notion of
an ex post facto clearance. This would be contrary to both the precautionary principle as well as
the need for sustainable development,” the bench noted.

Even The principle of sustainable development and precautionary principle became part of
India’s domestic legal framework when in Vellore Citizens Welfare Forum v. Union of India,
the Supreme Court of India declared those principles part of the law of the land. With the
enactment of the National Green Tribunal Act in 2010, the principle of sustainable development,
precautionary principle, and polluter pays principle became an explicit part of India’s legislative
framework.

Thus Allowing post facto clearances could be detrimental to the environment and would weaken
the protection.

4.3. EXCLUSION OF GENERAL PUBLIC FROM REPORTING OF VIOLATIONS. 

The EIA Notification 2020 excludes reporting by the public of violations and non-compliance.
Instead, the government will take cognizance of reports only from the violator-promoter,
government authority, Appraisal Committee or Regulatory Authority. Such projects can then be
approved with conditions, including remediation of ecological damage, which, again, will be
assessed and reported by the violator (and not an unconnected agency), although Central
Pollution Control Board guidelines must be used.
4.4. PUBLIC CONSULTATION:

The Delhi High court has clarified that the last day to send in objections to this draft notification
is August 11th 2020. These objections will then be considered by the Union Government before
passing the notification.

Public Consultation empowers the local affected persons and others who have a plausible stake
in the environmental impact of the proposed project, to raise their concerns for or against the
project. This social audit process is based on the principle of natural justice that further enhances
transparency in the EIA. It should be fair and involve the maximum participation of the affected
people. In Debadityo Sinha v Union of India and Save Mon Region Federation v Union of
India, the National Green Tribunal had set aside the EC granted to the projects based on the
inappropriate public consultation process. The Draft EIA Notification seeks to reduce and
discourage public participation in the Environmental Impact Assessment.

The EIA Notification exempts massive buildings and construction projects from the public
consultation process that were required in the previous EIA Notification. It provides a long list of
exemptions and lesser scrutiny. Under the Draft Notification, the availability period of the EIA
Report before the public hearing has been reduced from 30 to 20 days without any justification.
Delhi High Court in Utkarsh Mandal v Union of India emphasized the need to provide
information 30 days before the public hearing process. The court highlighted that the affected
persons should be fully informed about the proposed project that may cause environmental
damage. The Gujarat High Court has noted in the Centre for Social Justice v. Union of India
that even 30 days is insufficient for this purpose and should be extended. It is no wonder that
such a reduction of duration will hamper the whole public hearing process.

Recently the Karnataka High Court on 5th August, 2020 restrained the Union Ministry of
Environment, Forests and Climate Change from publishing the Final Notification based on the
Draft Environment Impact Assessment (EIA) notification 2020, till September 7.

The Court also took into account the fact that the draft the notification has been published on
March 23, two days before the national lockdown was announced by the Central government and
that during the lockdown and pandemic there were several constraints on individuals for ling
objections to draft notification.

The Court held that "Prima facie it appears to us that the Right of Citizens to file objection has
been taken away." The extended last date to file suggestions/objections to the draft notification is
August 11. The court in its order has clarified that it will be open for respondents to take all
permissible steps on the basis of impugned draft notification. In the event the respondent is
willing to grant reasonable time for filing objection from the date on which wide publicity is
given in the state, the respondent can apply for vacating of interim relief.

The Court deprecated the stand taken by the Central government that the notification published
in the Official Gazette is to be published only in Hindi and English languages.

4.5. OTHER PROBLEMATIC CONSIDERATIONS OF DRAFT EIA NOTIFICATION:

4.5.1. Compliance Report Issue

 The 2006 notification required that the project proponent submit a report every six
months, showing that they are carrying out their activities as per the terms on which
permission has been given.
 However, the new draft requires the promoter to submit a report only once every year.
 During this period, certain irreversible environmental, social or health consequences
of the project could go unnoticed because of the extended reporting time.

4.5.2. Bypassing EIA Process

 Through the draft notification, the central government gets the power to categorise
projects as “strategic.”
 Once a project is considered as strategic, the draft notification states that no
information related to such projects shall be placed in the public domain.
 Violations can only be reported suo motu by the project proponent, or by a
government authority, appraisal committee, or regulatory authority. This is against
the principles of natural justice.
 Further, the draft notification states that the new construction projects up to 1,50,000
square metres (instead of the existing 20,000 square metres) do not need “detailed
 scrutiny” by the Expert Committee, nor do they need EIA studies and public
consultation.

Apart from the above stated problems, The Draft Notification also excluded the role of affected
parties, civil societies, and others from reporting the violation of the conditions of EC. Those
cases reported by anyone other than project proponent or government authority will not be
entertained. Also, earlier, the project proponent was required to submit a bi-annual compliance
report, which has now been made annually in the present Draft.

5. HOW DOES IT DIFFER FROM EIA 2006 AND EIA, 1994

A comparison between this 2020 notification and previous notifications are as follows:

S.No
Particulars EIA, 1994 EIA, 2006 EIA, 2020
.
Period for
1. Public 30 days 45 days 40 days
Consultation
The Project
Authorities to Authorities to
monitor Projects for monitor projects for The monitoring
Monitoring
2. compliance with compliance with Frequency has been
Period
environmental environmental norms relaxed to once a year
norms every 6 every 6 months
months
3. Environmental (i) Onus of (i) Power was (i) The Onus of
Clearance providing decentralized providing
environmental wherein under the environmental
clearance for new notification the clearance for projects
projects lay entirely onus of providing was divided between
on the Central environmental the Central and State
Government clearance for projects Government as before.
was shared between
(ii) There was no the Central and the (ii) Projects are
 State Government.

(ii) Projects in
Schedule 1 were
divided into two divided into three
categories, i.e., categories - 'A', 'B1',
division of category
Category A projects 'B2', based on the
for projects
(national level potential social and
mentioned in
appraisal). National environmental impacts
Schedule 1
and State level and the spatial extent
Environment Impact of these impacts
Assessment
Authority were
responsible for it
respectively.
4. Environmental i) Screening i) Screening For Category A and
Clearance ii) Public Hearing ii) Scoping B1 projects:
Process iii) Obtaining No iii) Public Hearing i) Scoping
Objection iv) Appraisal ii) Preparing the draft
Certificate ("NOC") for Environmental
from State Pollution Category A Projects Impact Assessment
Control Board would have to ("EIA") report.
iv) Evaluation of mandatorily undergo Iii) Public
Application environmental Consultation
v) clearance and there is iv) Preparation of
Recommendations no screeening Final EIA Report
process for it. v) Appraisal
This Process has to
be completed within Category B projects Category B2 Projects
90 days. would have to which require
undergo screening, to appraisal have to be
 placed before the
appraisal committee
which are
i) Preparation and
appraisal o
determine whether Environment
they belong to Management Plan
category B1 or ii) Verification of its
Category B2. completeness by the
Authority appointed.
Category B2 is iii) Grant/Rejection of
exempted from EIA Clearance.

Category B2 which
don't require appraisal
would only have to
follow last two steps.

6. CONCLUSION AND SUGGESTIONS

As is evident from the seven point critique done above, the draft EIA Notification, 2020 needs a
complete overhaul before it can be implemented with finality. Some of the provisions are
evidently a step in the backward direction, for example, reducing the time given to the public to
submit their response, increasing the area threshold for construction projects so that more
projects fall outside the purview of the notification, reducing the number of compliance reports.
These measures are clearly in favour of the profit-minded multinational corporations who are
only interested in the scale of their project and have little to do with environmental concerns.
Secondly, the draft EIA Notification, 2020, the author believes is an excessive delegation insofar
as it empowers the Central Government to declare certain projects as “strategic” without having
to give any reasons with the result that certain projects shall fall outside the purview of the
notification. Additionally, the public shall not have access to any information on such projects.
This gives mammoth powers to the Central Government to abuse its discretion. It is an
established principle of administrative law that all executive decisions must be reasoned and
especially so if they adversely affect the fundamental rights of citizens. Right to a clean and
healthy environment is clearly a fundamental right under Article 21. Resultantly, the provision
for empowering the Central Government with such excessive powers is unconstitutional and the
author believes will not stand the test of judicial scrutiny if challenged before the court. 
Lastly, and most importantly, the notification is in direct contradiction to environmental law
principles well established by judicial precedents, for example, the principle that post facto
environmental clearances do not resonate with the scheme of EIA as they defeat the basic
purpose of the same.
It seems that the intention of the authorities to have circulated this framework for public
comments during the time of lockdown is a silly attempt at getting a heads up from the public for
this notification with such objectionable provisions, considering that there’s not much resistance
that could have come from the public in these unprecedented times of uncertainty.
Though the above is true, there are indeed some provisions in the suggested provisions worthy of
being retained. These include the detailed definition of every term, introduction of the Technical
Expert Committees, introduction of Accredited EIA Consultant Organisation (ACO),
introduction of online mode of submissions, reducing the time-period for grant or rejection
of EC, introduction for provision for appeal etc.
In addition to these provisions, some additional provisions which are currently lacking under the
draft EIA Notification 2020 and may be considered to be added before final imposition are as
under:

 Strict Timelines for Getting EC and Penalty provisions in case of delay- Delay in
getting EC unnecessarily stalls projects and more often than not, there is a delay in
granting the approval. Therefore, the legislature may consider incorporating a
provision for deemed approval, in that the applicant may consider the approval to
have been given in case the authorities delay the same beyond a certain time limit.
Such deemed approvals were part of the very first EIA framework in 1994, but were
done away with later. Alternatively, penalty provisions could be incorporated which
mandate that the authority pay compensation to the applicant for every day that the
 delay is caused beyond a pre-fixed reasonable time period. Bureaucratic delay in
granting environmental clearance must be brought down. This would ensure timely
disposal on applications for environmental clearance.
 Mandate on States for wider circulation of the Notification- Currently, the draft
EIA lacks any provision which obliges the State governments to publicize the same
within their territories. This is a blatant violation of Principle 10 of the Rio
Declaration which stresses on the need for as wide public circulation as possible. In
order to achieve, the final notification, could include a provision mandating the States
that they must circulate the notification in their territories within a week from the date
the Central Government publishes it in the official gazette.
 More Clarity on New Concepts- The draft EIA Notification proposes to introduce
several new concepts which are alien to the current framework, for example, an
Environment Permission, community resource augmentation plan, Accredited EIA
Consultant Organisation etc. It is therefore suggested that before the final notification,
the Ministry provide some further clarity.

*****