MODULE IV

ENVIRONMENTAL POLICIES

Environmental policy is the commitment of an organization to the laws, regulations, and

other policy mechanisms concerning environmental issues.

These issues generally include air and water pollution, waste management, maintanence of
biodiversity, the protection of natural resources, wildlife and endangered species.

Environmental policy consists of 2 major terms: Environment and Policy.

Environment refers to the physical eco system but can also take into consideration the social
dimension (quality of life, health) and an economic dimension (resource management ,
biodiversity).

Policy can be defined as a “course of action or principle adopted or proposed by a Govt.,

party, business or individual”.

Thus, environmental policy focuses on problems arising from human impact on the
environment, which acts onto human society by having a negative impact on human values
such as good health or the ‘clean and green environment’.

There is no standard format for an environmental policy. It should be realistic, achievable and
a serious commitment to reduce our environmental impact.

Environmental policy should contain a commitment to:

• Continually improve our environmental performance by monitoring progress against

targets and objectives on a regular basis

• Prevent pollution and reduce our impact on the environment

• Comply with relevant environmental legislation .

It may also want to include commitments relating to:

• Efficient use of water and energy

• Efficient use of other natural resource

• Recycling

• Minimizing waste

• Sustainable transport

• Responsible purchasing

• Minimizing noise disturbance

• Use of non-toxic products (e.g. biodegradable cleaning products and VOC-free paints)

• Working with clients and suppliers to encourage high environmental standards.

• Raising awareness and training employees on environmental issue.

PRINCIPLES FOR ENVIRONMENTAL PROTECTION POLICY

A. POLLUTER PAYS PRINCIPLE (PPP): Formal introduction of PPP is came from

Agenda 21 of Rio-Declaration. Organization for Economic Co-operation and
Development (OECD) has suggested the polluter pays principle as a general basis for
the environmental policy. It states that if measures are adopted to reduce pollution, the
costs should be borne by the polluters.

B. THE USER PAYS PRINCIPLE (UPP): It is considered as a part of the PPP . The
principle states that all resource users should pay for the full long run marginal cost of
the use of a resource and related services, including any associated treatment costs. It
is applied when resources are being used and consumed.

C. THE PRECAUTIONARY PRINCIPLE(PP) : The main objective of the

precautionary principle is to ensure that a substance or activity posing a threat to the
environment is prevented from adversely affecting the environment , even if there is
no conclusive scientific proof of linking that particular substance or activity to
environmental damage. The words ‘substance’ and ‘activity’ are the results of human
intervention.

For eg. Plastic usage can be prevented through those kind of awareness program me. So the
precaution is the beginning stage. After something happened then it is prevention.

INTERNATIONAL POLICY INSTRUMENTS

TO TACKLE GLOBAL ENVIRONMENTAL EXTERNALITIES

The use of available policy instruments will only lead to a cost-effective global outcome if
certain conditions are met.

First, unless individual countries undertake cost-effective domestic greenhouse policy

measures that are compatible with the goal of global efficiency , the policy instruments
adopted internationally will not lead to that goal.

Second, each individual country is free to choose its own instrument or combination of
instruments to meet its international obligations. But the choice of international instruments
will, to some extent , dictate the choice of policy instruments at the domestic level.

SOME OF THE INTERNATIONAL POLICY INSTRUMENTS:

 ✓ INTERNATIONAL CARBON TAX

✓ TRADABLE QUOTAS, AND

✓ TRADABLE POLLUTION PERMITS

But how far these instruments beneficial are depends on their application or monitoring.

A BRIEF ANALYSIS OF CARBON TAX IN THE WORLD

Several countries around the globe have implemented various types of carbon pricing
mechanisms (carbon pricing mechanisms are mechanisms that place a price on carbon
emission). According to the United Nations, 23 of these countries have implemented carbon
taxes, primarily at the national level. Countries began adopting carbon taxes in the early
1990s—Finland introduced a carbon tax in 1990; Norway and Sweden in 1991; and Denmark
in 1992. Over the decades, carbon taxes were introduced not just in developed economies, but
also in emerging economies (for example, Chile and South Africa have introduced carbon
taxes). Carbon taxes vary in their mechanism and rates in every country and are increasingly
being adopted by countries not only in pursuance of mitigating the effects of climate change
but also as a means to avoid being penalized by the international community.

TRADABLE QUOTAS

Tradable quotas would specify the permissible quantity of carbon emissions from all sources
within a national economy, allowing the price to adjust around it, and using information
technology to distribute the quota units through the market.

TRADABLE POLLUTION PERMITS

Tradable permits are quotas for pollution that can be exchanged to create a market in the right
to pollute, and thereby create a tax on polluting. The emission of pollution requires the
purchase of permits to pollute, and the price of these permits represents a tax on pollution.

SUSTAINABLE ENVIRONMENTAL POLICY APPROACH TO CHECK

ENVIRONMENTAL DEGRADATION:

❖ Evironmental protection is inherent in the concept sustainable development.

❖ It describes a process in which natural resource base is not allowed to deteriorate.

❖ It emphasizes the role of environmental quality and environmental inputs in the

process raising real income and the quality of life.

SUSTAINABLE DEVELOPMENT is the idea that human societies must live and meet their
needs without compromising the ability of future generations to meet their own needs.
Sustainable development is based on three fundamental pillars: social, economic and
environmental.

The two examples of sustainable development are:

1. Solar energy: Harnessing the solar energy to reduce pollution in the environment.

2. Crop Rotation: Planting different types of crops on the same land on a rotational basis
for improving soil fertility.

Sustainable development includes the various policy measures to check the environmental
degradation and reduce the costs of economic growth such as:

1. Reducing Poverty:

Such development projects should be stated which provide greater employment

opportunities to the poor. The Govt. should expand health and family planning services and
education, good supply of civic amenities, drinking water facilities, sanitation facilities,
alternative habitats in place of slums etc.

2. Removing subsidies:

To reduce environmental degradation at no net financial cost to the government, subsidies for
resource use by the private and public sectors should be removed. Subsidies on the use of
electricity, pesticides, fertilizers, diesel, petrol, gas, irrigation water etc. lead to their wasteful
use and environmental problems.

3. Clarifying and Extending Property rights:

Lack of property rights over excessive use of resources leads to degradation of environment.
This leads to overgrazing on common or public lands, deforestation , and over exploitation of
minerals, fish etc. Clarifying and assigning ownership titles and tenure rights to private
owners will solve the environmental problems.

4. Market Based Approaches:

Besides regulatory measures, aim at pointing to consumers and industries about the costs of
using natural resources on environment. These costs are reflected in the prices paid for goods
and services so that industries and ultimately the consumers are guided by them to reduce air
and water pollution.

5. Regulatory policies:

Regulatory policies also help in reducing environmental degradation. Regulators have to take
decisions regarding price, quantity and technology . In making decisions they have to choose
the quantity or the price of pollution resources use or technologies.

6. Economic Incentives:
Like regulatory policies economic incentives relate to price, quantity and technology.
Incentives are usually in the form of variable fees to resources users for the quantity of
pollutants in air, water and land use. They are given rebates if less waste or pollution is
generated than the emission standards laid down.

7. Trade Policy:

Trade policy in relation to environment has two implications : first, concerning domestic
policy reforms and second , relating to International trade policy.

Domestic trade policy emphasis on the establishment of less polluting industries away from
the cities and the use of environmental friendly processes for polluting industries by adopting
cleaner technologies.

8. Public Participation:

Public awareness and participation are highly effective to improve environmental conditions.
For instance, the scheme of eco-labelling of products helps consumers to identify products
that are environment friendly.

9. Participation in Global Environmental Efforts:

Basel Convention which relates to the control of the trans-boundary movement and disposal
of hazardous wastes.

Among others, there is the Rio Declaration on Environment and Development and the
Agenda 21 which is the operational programme for sustainable development.

Not all countries are signatories to the various agreements and conventions.

ENVIRONMENTAL POLICY IN INDIA

NATIONAL ENVIRONMENT POLICY (2006)

A document that emphasizes on conservation, prevention of degradation and equity of natural

resources.

The National Environment Policy (NEP) by the Ministry of Environment and Forests
(MoEF) aims at mainstreaming environmental concerns into all developmental activities. It
emphasises conservation of resources, and points that the best way to aid conservation is to
ensure that people dependent on resources obtain better livelihoods from conservation, than
from degradation of the resources. It argues that environmental degradation often leads to
poverty and poor health outcomes among populations.

The document goes on to highlight the principles underlying the policy that emphasize the:

• Important role of human beings in the sustainable development processes

• The non-negotiability and incomparable value of environmental resources

 • Right to development for all

• Equity in the use of environmental resources and

• The need for the decentralised and multisectoral approach in dealing with
environmental issues.

The following are the objectives of the National Policy:

1. Conservation of critical environmental resources

2. Inter-generational Equity

3. Efficiency in Environmental Resources Use

4. Environmental Governance in the Management of Resources

5. Enhancement of Resources

6. Livelihood Security for the poor

7. Integration of Environmental concerns for socio-economic development; to integrate

environmental concerns into policies , plans, programmes and projects for socio-economic
development.

LEGAL FRAMEWORK

There are many laws to deal with the environmental pollution in India.

These are Environment Protection Act 1986, Water (prevention and control of pollution) Act
1974, Water Cess Act 1977, Air (prevention and control of pollution) Act 1981. The Law
related to management and conservation of forests and biodiversity are the Indian Forest
Act,1927, the Forest Conservation Act 1980, Wild life (protection) Act 1972 and the
Biodiversity Act 2003. These are the various legal frame works under which we look into
various environmental issues like environmental degradation/pollution and so many aspects
on these matters.

CONSTITUTIONAL PROVISIONS FOR ENVIRONMENTAL PROTECTION

To fulfill the promise made in Stockholm Declaration, the Parliament of India had passed
42nd Amendment Act to the Constitution in 1976 and incorporated two articles i.e. Articles
48A and 51A (g) for environment protection.

Article 48-A of the Constitution imposes duties on State to protect and improve the
environment and also preserving and safeguarding the forests and wildlife. This Articles
enshrined under the Directive Principles of State Policies (DPSPs).

Article 51-A (g) of the Indian Constitution imposes a duty on every citizen of India to protect
and improve the natural environment including forests, lakes, rivers, and wildlife.
Apart from these two articles, some of the fundamental rights (such as Articles 14, 19, 21,
and 32) incorporated in Part III of the Constitution act as a savior for the environment.

The preamble of the Constitution and Environment Protection:

The Preamble of the Constitution starts with the statement “We the People of India
solemnly resolve to constitute India into a [Sovereign Socialist Secular Democratic
Republic] and secure all its citizens.” It implies Indian Constitution follows the socialist
pattern of society, where the primary concern is to first deal with social problems rather than
the individual. Here, the welfare of public interest is the utmost important aspect for the
country.

The presence of pollution in the atmosphere which exceeds the environment’s capacity to
clean it is harmful to the public and thus, it is a social issue. Pollution in the environment not
only deteriorates the health of living beings but also, degrading the quality of the
environment.

The basic aim of the preamble is to secure all its citizens the State must provide a pollution-
free environment without compromising the development of the nation.

Concurrent list (known as List III), it is dealt by both Central and State government. The
matters comprise under List III are forest and wildlife protection, conserving mines, and
control pollution, etc. The Seventh Schedule of List III dealt with environment protection:

17-A: Forests;

17-B: Protection of wild animals and birds

The states are taken up various development projects but sometimes it possesses a great threat
to the environment. To settle the conflict between development and the environment,
the Environment Impact Assessment (EIA) came into existence and it was recognized by
Planning Commission. EIA enables the decision-makers to analyze the impact of a
development project on the environment. The EIA evaluates the predictable consequences of
the project to the environment before giving his assent. EIA aims to ensure the environment
safe and there should be sustainable development.

Fundamental Rights and Environment Protection:

Article 14 of the Indian Constitution guarantees the “right to equality” means equality before
the law and equal protection of the law has been granted to every citizen without any
discrimination. This implies, any action taken by the state for environmental protection and
thus, cannot infringe the right to equality enshrined under Article 14 of the Indian
Constitution.

The principle of equality in environmental management was also recognized in the

Stockholm declaration and it called up the entire world nation should abide by this principle.
In Ajay Hasia v. Khalid Mujib Sehravardi, The Supreme Court of India struck down the
arbitrary official sanction on environmental matters on the basis that, it was a violation of
Article 14 of the Indian Constitution.

In Kisan Bhagwan Gawali v. the State of Maharashtra, The Court held that the exclusion of
a particular class of grazers and inclusion of some classes on the ground that the excluded
class was indulging in illegal grazing is the violation of Article 14 and it was invalid. Such a
policy framing is against the right of equality enshrined under Article 14 of the Indian
Constitution.

Freedom of Trade and Commerce and Environment Protection

Article 19 (1) (g) of the Indian Constitution gives freedom to all its citizens to continue any
trade, business, and profession at any part within the territorial boundary of India. This right
is not an absolute one and it has limitations under Article 19 (6) to avoid environmental
hazards. This limitation was set because trade and business are the sources of hazardous
effluents released from industries; tanneries; acid factories; tie and die factories; distilleries
and nowadays, hotel industries are also contributing to environmental pollution. Some of
these industries, business or trades are carried on in such a manner which endangers
vegetation, animals, aquatic life and human health. Thus, it has been clear that freedom of
Trade and Commerce is not an absolute right and it has a limitation when it is offensive to
flora and fauna or human beings. To restrict such violation, trade and business cannot be
permitted to be carried on in the name of the Fundamental right.

In Abhilash Textile v. Rajkot Municipal Corporation, The petitioner was engaged in the
business of dying and printing works in the Rajkot area, where untreated water from the
factory was released on the public road and public drains which causes public health issues.
The petitioner claimed that they were carried out their business for the last 20- 25 years and
providing employment to 20000- 30000 peoples and also, it is their fundamental right to
carry on any trade, business, or occupation.

The Gujarat High Court held that the petitioner has no absolute fundamental right to carry out
any business, trade, or occupation under Article 19 (1) (g). Thus, the order for closing down
the factory was not a violation of fundamental rights under Article 19 (1) (g) and the also
court stated that the petitioner cannot be allowed to make a profit at the cost of public health.

In M.C. Mehta v. Union of India, The Supreme Court, in this case, held that, if any
residential building is converted for commercial purposes, it amounts to the violation of
municipal laws and environmental laws. Mostly commercial activities are not permitted to
operate in residential areas because it would cause environmental pollution. Further Supreme
Court ordered for sealing such residential premises and it also held that restrictions on using
residential buildings for the commercial purpose were not a violation of freedom of trade and
business under Article 19 (1) (g) of the Indian Constitution.

In M.C. Mehta v. Kamal Nath, The Supreme Court held that hotel industries discharging
their untreated effluents into river bodies which disturbing aquatic flora and fauna and
causing water pollution, therefore it cannot be permitted to work. Any disturbance causes to
environmental elements such as air, water, and soil which are considered as necessary
elements of life, can be termed as environmental pollution.

Thus, the court by exercising its jurisdiction not only restricts their trade and business but
also levied “fine”- exemplary damages to the hotel industry under Article 32 for causing
environmental pollution.

Right to Life and Environment Protection

Article 21 of the Indian Constitution guarantees the Right to life and personal liberty. This
article does not directly confer the right to clean water and a healthy environment. But by
various judicial pronouncements on various occasions have expanded the jurisdiction of the
right to life and personal liberty and includes various unarticulated liberties as recognized
implicitly by Article 21 of Indian Constitution.

In L.K. Koolwal v. State of Rajasthan and Others, The Rajasthan High Court held that
maintaining the quality of water, environment, sanitation, and wellbeing come under the
jurisdiction of Article 21 of the Indian Constitution. In this case, the municipality of Jaipur
was negligent and non-compliance with basic duty adversely affect the lives of numerous
people, which means people may suffer from numerous diseases, causing decreasing the life
of the citizens.

In M.C. Mehta v. Union of India, This case is popularly known as Ganga Pollution Case. In
this case, Singh J. stated that the closure of tanneries may create unemployment and also
there is loss of revenue, but life, health, and ecology have greater importance for the people
because no person shall be deprived of his life under Article 21 of the Constitution.

Right to Constitutional Remedies and Environment Protection

Most of the cases related to environmental pollution and ecological imbalances were filed
under Articles 32 and 226 of the Constitution of India. Article 32 is a well-known
fundamental right where the aggrieved party can file a writ petition or any non-related party,
either individual or an organization can file a PIL (Public Interest Litigation) to the Supreme
Court of India regarding the matter of any activity endangering humans and damaging the
environment. The Supreme Court has judicial power to make any decision or pass any order
for granting relief from such activities.

In various judicial pronouncements regarding environment protection, Supreme Court

mention certain doctrines helps to slowdown such harmful activities which endanger the
environment and create eco- imbalance.

The Doctrines for Environmental Protection under the Constitution of India are:

Public Trust Doctrine

As per Roman law, the common properties (such as rivers, well, seashore, water, sea, and air)
are held by the government, and these properties must freely be enjoyed and unimpeded by
the members of the planet. These properties are “res communious”, which means properties
are owned by everyone in common. This is known as Public Trust Doctrine.

In M.C Mehta v. Kamalnath, The Supreme Court, in this case, introduced the Public Trust
Doctrine and stated that certain natural resources like water, air, sea, and forest are very
important for living which cannot be owned by anyone in person. The honorable court held
that certain natural resources are public property and not private property and are to be
managed in trust by the state for the benefit of the public at large.

In Fomento Resorts and hotels Ltd. v Minguel Martins, The Court has reiterated the
Doctrine and observed that the natural resources including forests, water bodies, rivers, etc.
are held by the State as a trustee on behalf of the public and especially for future generations.

Polluter Pays principle

The polluter pays principle was adopted in the year 1972 by the Organization of Economic
Cooperation and Development (OECD). This principle states “whoever produces pollution
should bear the cost of managing it to prevent damage to human health and environment”. In
other words, the producer of goods or other items should be responsible for the cost of
dealing with pollution.

Also, this principle affects Principle 13 of the Rio Declaration, 1992.

In Vellore Citizens’ welfare Forum v. Union of India, A pollution fine of ₹10000 on each of
all erring tanneries was imposed in this case, which was to be deposited in the “Environment
Protection Fund” which was utilized for compensating the affected persons and for restoring
the damaged environment.

Precautionary Principle

This principle is a kind of rule of evidence because the burden of proof in environmental
cases is shifting on polluters (industrialist, individual, and entrepreneur). They all have to
prove that their activity has to be environmentally friendly. The industries and government
must ascertain, prevent and abet environmental pollution by using this principle. Reference of
this principle can be seen in Principle 15 of Rio Declaration, 1992.

Directive Principles of State Policy and Environment Protection:

In the Constitutional (42nd Amendment) Act, 1976, two new articles i.e. Articles 48-A and
51-A (g) were enshrined in the constitution for environmental protection. These articles are
incorporated in the Indian Constitution as a result of the Stockholm declaration and contain
its principles. These principles are:

1. Natural resources must be safeguarded;

2. Wildlife must be safeguarded;

 3. Non-renewable resources must be maintained;

4. Pollution must not exceed the environment’s capacity to clean it;

5. Oceanic pollution must be prevented;

6. Sustainable development is needed to improve the environment;

7. Government should plan their appropriate pollution policies;

8. National institutions must plan the development of states’ natural resources; etc.

Article 48-A of the Indian Constitution imposes duties on State to protect and improve the
environment and also preserving and safeguarding the forests and wildlife.

Article 51-A (g) of the Indian Constitution imposes a duty on every citizen of India to protect
and improve the natural environment including forests, lakes, rivers, and wildlife.

In Kinkeri Devi v. State, The Himachal High Court held that under Articles 48-A and 51-A
(g), both State and citizens have constitutional duty to not only protect the environment but
also, improve, preserve, and safeguard the natural environment including forests, lakes,
rivers, flora, and fauna, etc. of the country.

In T.N. Godavarman Thirumulpad v. Union of India, The Chhattisgarh government plead

that the State did not have enough money to save Wild Buffalo- an endangered species. The
Court rejected the plea of and directed that because it is the duty of the State under Article
48-A of the Constitution to take immediate steps to ensure the protection of the endangered
species from extinction.

Conclusion

Due to rapid industrialization and urbanization in India, environmental pollution increases

day by day. Increasing population level, deforestation, global warming also adversely affects
the environment and leads to ecological imbalances. To tackle the situation, UNO organizes
various international conventions and declarations for creating awareness regarding
environmental pollution and to implement such strategies which help the global nation for
decreasing pollution level.

While giving protection to the environment, we protect and preserve human life. If a man
lives in harmony with nature, then nature nourishes him and provides all the necessities of
human life. But if humans deteriorate the environment for development then there will be an
eco- imbalance in the environment. Human life and nature are correlated and complementary
exists. Thus, to maintain the equilibrium between human development and the environment,
then, it is the moral and fundamental duty of human beings to preserve and protect the
environment including, air, water (including water reservoirs, sea, lakes, etc.), sky, forests,
flora, and fauna.
By 42nd Amendment in Indian Constitution, it is the fundamental duty and obligation of the
State and every citizen to protect the environment.

ENVIRONMENTAL IMPACT ASSESSMENT

DEFINITION OF IMPACT

An Impact can be defined as any change in physical, chemical, biological, cultural or socio-
economic environmental system as a result of activities: relating to a project (or) adverse
effects caused by industrial, infrastructural projects OR by the release of a substance into the
environment.

DEFINITION OF IMPACT ASSESSMENT:

Impact assessment is the process of identifying the future consequences (bad results) of a
proposed project.

Impact Assessment ensures that projects, programmes and policies are economically viable
(PRACTICAL); socially equitable and environmentally sustainable.

DEFINITION OF ENVIRONMENTAL IMPACT ASSESSMENT:

The United Nations of Environmental Programme (UNEP) defined that EIA is a tool used
to identify the environmental and economic impacts of a project prior to decision making
regarding the project planning, design, adverse impacts, etc..

For all proposed and development projects, whether Government or Private, the Ministry of
Environment and Forests (MoEF) requires an Environmental impact assessment report
related to the following parameters:The report must define what impact it would have on
water; soil and air including flora and fauna. Affect on the lives of local people. To ensure
that no way harm the environment on a short term or long term basis.

By identifying potential (STRONG) alternatives and adverse (CONTRARY) impacts,

Nations can better achieve goals for sustainable development; avoid adverse
environmental; social and cultural impacts; reduces cost, provides better plan for
infrastructure etc.

What is Environmental Impact Assessments?

It is a process of evaluating the likely environmental impacts of a proposed project or

development, taking into account inter-related socio-economic, cultural, and human-health
impacts, both beneficial and adverse. EIA is a tool used to assess the positive and negative
environmental, economic, and social impacts of a project. This is used to predict the
environmental impacts of a project in the pre-planning stage itself so that decisions can
be taken to reduce the adverse impacts.
While the aim of conducting such assessments remains uniform globally, the methods and
practices might differ due to different environmental legislations prevailing in other parts of
the world.

Importance of Environmental Impact Assessment

1. EIA is a good tool for prudent environment management.

2. It is government-policy that any industrial project in India has to secure EIA clearance
from the Environment Ministry before approval for the project itself.

EVOLUTION & HISTORY OF EIA (ENVIRONMENT IMPACT ASSESSMENT)

1. The birth of EIA is dated back to the 1970s. In 1969, The USA had brought its
first National Environment Policy Act (NEPA) 1969.

2. The EIA was initially practiced by developed nations but slowly it was also
introduced in developing nations including India.

3. Columbia and the Philippines are the earliest examples of developing nations who
introduced EIA in their policies. Columbia brought it in 1974 while the Philippines in
1978.

4. Worldwide, EIA is now practiced in more than 100 countries. By the mid-1990s,
some 110 countries applied EIA as a major environmental policy.

5. In 1989, EIA was adopted as the major development project by the World Bank.

Objectives of Environmental Impact Assessment

1. Identifying, predicting, and evaluating economic, environmental, and social impacts

of development activities.

2. Providing information on the environmental consequences for decision making.

3. Promoting environmentally sound and suitable development by identifying

appropriate alternatives and mitigation measures (REDUCING SERIOUSNESS).

The EIA Process

EIA involves the steps mentioned below.

▪ Screening: The project plan is screened for scale of investment, location and type of
development and if the project needs statutory clearance.

▪ Scoping: The project’s potential impacts, zone of impacts, mitigation possibilities and
need for monitoring.

▪ Collection of baseline data: Baseline data is the environmental status of study area.
 ▪ 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.

▪ 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.

▪ Public hearing: On completion of the EIA report, public and environmental groups
living close to project site may be informed and consulted.

▪ 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).

▪ Monitoring and implementation of environmental management plan: The various

phases of implementation of the project are monitored.

▪ 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.

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.

▪ Risk assessment: Inventory analysis and hazard probability and index also form part
of EIA procedures.

The table below will mention the EIA Process in brief:

Environmental Impact Assessment (EIA) Process

Process Details in Brief

Screening Which projects need a full or partial assessment study is decided

in this stage

Scoping • Which impacts are necessary to be assessed is decided in

this stage. While doing so, legal requirements,
 international conventions, expert knowledge, and public
engagement are also considered.

• Alternative solutions that avoid or at least reduce the

adverse impacts of the project are also studied in this
stage

• Investigation of alternate designs or sites that avoid or

mitigate impact takes place

Assessment & Evaluation Environmental impacts of the proposed project are analyzed and
of Impacts and light is thrown upon the alternatives present to such projects
Development of
Alternatives

EIA Report also called An environmental management plan (EMP) and also a non-
Environmental Impact technical summary of the project’s impact is prepared for the
Statement (EIS) general public in this stage

Decision Making The fate of the project is decided. Whether the project is to be
given approval or not and if it is to be given, under what
conditions

Monitoring, compliance, Monitoring whether the predicted impacts and the mitigation
enforcement and efforts happen as per the EMP
environmental auditing

Applicability in India

EIA was first introduced in 1978 with regard to the various river valley projects all over the
country and later expanded to include various other developmental procedures in its scope.
EIA is now mandatory for over 30 classes of projects.

The Environmental Protection Rules, 1986 warrant for the imposition of certain restrictions
on the construction/ expansion/ modernization of specific projects without prior approval
from the Central, State, or Union Territory level Environmental Impact Assessment Authority
(EIAA) constituted under the Environment Protection Act, 1986.

Categorization of projects

The rules categorize the projects into two categories- A and B on the basis of the magnitude
of their scale and impact on the natural and artificial resources.
The projects belonging to Category A require approval from the Ministry of Environment and
Forests on behalf of the Central Government, on the advice of an Expert Appraisal
Committee (EAC), constituted by the Central Government for this specific purpose; eg.
Construction or Expansion of Ports, harbours, airports, nuclear power, and related projects,
Primary metallurgical industries (iron, steel, copper, etc), individual projects, etc. Projects
and Activities falling under

Category B requires the approval of a State EIAA, based on the advice of a State Expert
Appraisal Committee (SEAC), constituted under the said notification.

Appraisal committees

The Appraisal Committees at the Central and the State levels are in charge of screening and
determining the scope of the projects and work on the principle of ‘Collective Responsibility.
While the EAC comprises professionals from varied disciplines along with experts in fields
of Environment Quality, Project Management, Risk Assessment, Forestry, and Wildlife,
among other fields, the SEAC is constituted by the Central Government on similar lines, in
consultation with the State Government.

The Central Government is empowered to constitute a common SEAC for more than one
state and Union Territories, with the prior concurrence of the concerned state/UTs to save
administrative costs.

The EAC and SEACs are constituted for a term of three years each and are supposed to meet
once every year.

EIA Notification, 2006

Objectives:

• To formulate a transparent, decentralized and efficient regulatory mechanism to

integrate environmental concerns into the developmental process with a view to
facilitating sustainable development.

• To ensure incorporation of necessary environmental safeguards at planning stage in

the project cycle, so as to ensure minimal impact on different components of the
environment.

• To ensure involvement of stakeholders in the public consultation process through

public hearing and to ascertain the views of the public on the proposed project or
activity.

Stakeholders in the EIA Process

• Those who propose the project

 • The environmental consultant who prepare EIA (ENVIRONMENT IMPACT
ASSESSMENT) on behalf of project proponent

• Pollution Control Board (State or National)

• Public has the right to express their opinion

• The Impact Assessment Agency

• Regional centre of the MoEFCC (Ministry of Environment , Forests and Climate

change)

The salient features of EIA Notification, 2006

• The EIA Notification, 2006 has categorized the projects into two categories namely;
Category ‘A’ and Category ‘B’ based on their impact potential͘.

• Category A projects requires mandatory environmental clearance and thus they

do not undergo the screening process.

• Category B projects undergoes screening process and they are classified into two
types.

o Category B1 projects (Mandatorily requires EIA).

o Category B2 projects (Do not require EIA).

• Thus, Category A projects and Category B1 projects undergo the complete EIA
process whereas Category B2 projects are excluded from complete EIA process.

• The stage of scoping for prescribing terms of reference by the Regulatory Agency for
the EIA studies has been incorporated in accordance with the International practice. It
is expected to improve the quality of EIA thereby improving the quality of decision
making and minimizing the delays.

• The public consultation process has been made more structured. It has two
components i.e. comments through correspondence and by public hearing at site.
Provision to videograph the proceedings of the public hearing has been made.

• NOCs ( No-Objection Certificates) from other regulatory agencies such as SPCB

(STATE POLLUTION CONTROL BOARD) etc. are not a prerequisite for
considering application for environmental clearance.

Stages of obtaining the environmental clearance

The EIA Notification, 2006 provides for a 4-stage procedure for obtaining environmental
clearances.

(EAC -EXPERT APPRAISAL COMMITTEE

SEAC -STATE EXPERT APPRAISAL COMMITTEE))

1. SCREENING: Applicable for those classes of projects falling into Category B,

the stage of Screening involves proper and methodological screening by the
SEAC for determining whether a project requires further detailed study into
the environmental factors, depending on its nature, location coupled with other
aspects, before furnishing an EIA Report necessary for obtaining a clearance.
Based on whether such an EIA Report is required for projects, they are further
classified into two categories- B1 and B2, where the former mandatorily
requires an EIA report, and the latter does not.

2. Projects included in the B2 Category include offshore and onshore oil, gas and
shale exploration, inland waterway projects, aerial ropeways in ecologically
sensitive areas, small and medium mineral beneficiation units, specified
building construction, and area development projects, to name a few.

3. SCOPING(evaluating): The EAC and SEACs with regard to projects falling

under categories A and B1 respectively, devise detailed Terms of Reference,
addressing the environmental concerns for the formation of a detailed EIA
Report; which are formulated after conducting site inspections and taking into
account the details furnished by the applicants and shall be conveyed to the
applicants within 60 days from the date of submitting the application. These
Terms of Reference are to be displayed on the website of the Ministry of
Environment and Forests (MoEF) and the concerned SEAC (STATE EXPERT
APPRAISAL COMMITTEE).

4. PUBLIC CONSULTATION: As the name suggests, it involves addressing the

concerns of those affected locally or who have a considerable stake in the
environmental impact of the project or activity in question by conducting a
public hearing (organized by the Pollution Control Boards of different states
and Union Territories) and taking written responses from the concerned
stakeholders. However, no such public consultation is required for the class of
projects belonging to Category B2, and certain exceptions expressly provided
under Clause 7(i) of the Notification, like the expansion of Roads and
Highways, which do not involve any further acquisition of land.

5. APPRAISAL: It refers to the detailed scrutiny by the EAC and SEACs of the
application, EIA Report, Outcome of public consultations, and the public
hearing proceedings within sixty days of the submission of the final EIA
Report. After due deliberation, the concerned Appraisal Committee can either
make recommendations to the regulatory authority for the grant or rejection of
the environmental clearance sought, with reasons for the same.

In case of projects not involving obtaining EAI reports, Scoping, and Public Consultations,
the appraisal is carried out on reports based on findings during the site visits, and the same
shall be placed before the competent authority within 15 days for its perusal.
For projects seeking clearances for their expansion and modernization shall be considered by
the concerned appraisal committee for granting/ rejection of the environmental clearance, in
accordance with the same procedure mentioned above, within 60 days from the date of
application.

Monitoring of environmental clearances

The MoEF and State level Impact Assessment Authorities are obligated to place the granted
environmental clearances in the public domain on their respective government portals, and
copies of the same need to be submitted to the heads of the concerned local bodies
panchayats or municipal authorities.

It is mandatory for the proponents of the project to submit the compliance reports to the
concerned regulatory authorities, after every six months, on 1st June and 1st December, every
year.

EIA AMENDMENT, 2020

The draft of EIA 2020 (Amendment) was put up for public discussion and consideration by
the government last year. The government proposed certain changes to the 2006 Notification
in order to make the entire process transparent and applicant friendly, which were described
to be ‘diluting’ the existing environmental regulations and shrink the scope of EIA, by
environmentalists in and around the country.

The new draft provides for the definition of many terms related to EIA, reducing ambiguity in
the existing law to a certain extent.

The new rules provide for an ‘ex post facto clearance’ route under which certain projects can
go ahead with the construction without obtaining the necessary clearance, subject to the
payment of fines in cases of violations, subsequently. Such clearances in past have been
termed to be illegal by the courts in various decisions, most recently in April 2020, in the
case of Alembic Pharmaceuticals Ltd v Rohit Prajapati, the Apex Court while condemning
and striking down an ex post facto clearance, observed that it is in derogation of
environmental jurisprudence and an ‘anathema’ to the EIA Notification, 1994. Referring to
the judgment of Common Cause v Union of India, the court opined that such clearances
could lead to irreparable degradation of the environment.

The period of time given to the public to file its concerns regarding the project has been
reduced to 20 days, as against the 20 days provided by the 2006 notification. A new category
of projects has been instituted under the head of ‘Projects Involving Strategic
Considerations,’ which have been kept outside the purview of public consultations. Once a
project is labeled to be strategic, no information regarding it shall be made public as a matter
of right. Any violations taking place can only be reported suo moto by the appraisal/
regulatory authority, the government, or the proponents themselves.

Monitoring requirements of environmental clearances have been relaxed by allowing the

submission of annual compliance reports instead of the previously mandated half-yearly ones,
increasing the risk of any hazardous implication- health-wise, environmentally or socially,
going unnoticed.

Understanding the application

Illustration:

1. An industrialist wants to set up a factory dealing with leather and its processing. What
steps should he take to obtain the mandatory Environmental Clearance before starting
with the construction of this factory?

Answer: As per Schedule 1 of the EIA Notification, industries involved in Skin/hide

processing, including the tanning industry, mandatorily require an Impact Assessment in
order to obtain a clearance. Based on whether the factory is to be built in an industrialized
area, the said project of establishing a leather factory will be categorized into A or B.

When the factory is to be built outside the limits of an industrialized area.

In this case, the said project will fall into Category A and would require approval from the
Ministry of Environment and Forests on behalf of the Central Government, on the advice of
an Expert Appraisal Committee (EAC), constituted by the Central Government.

In this scenario, since the approval is mandatory, there shall be no screening involved, and
the project would be sent for immediate scoping.

When the factory is to be built in an industrial area.

In this case, the said project will fall into Category B and require the approval of a State
EIAA, based on a State Expert Appraisal Committee (SEAC).

In this case, the project would be subject to the process of screening first to determine
whether the project falls into Categories B1 or B2- depending on various ecological and
environmental factors.

For the sake of understanding this illustration, let us assume that the project falls in the B1
Category, hence mandating approval from the SEAC to obtain a clearance.

With this, the project moves on to the subsequent stage of scoping.

Now, the subsequent stages shall remain the same for both- i) and ii).

The stage of scoping involves the concerned Assessment Authority forming a detailed EIA
report based on the devised terms of reference, formulated based on on-site inspections and
visits, consideration of the land in question, and the neighbouring surroundings.

The application for the environmental clearance shall be then subject to a public hearing
organized by the local Pollution Control Board, wherein all the stakeholders- Affected
people, Social or Environment activist groups, Interested public, etc. are given a platform to
voice their concerns regarding the construction and operation of such a factory i.e., living
conditions once after the factory starts running, discharge of the said effluents into the local
water body and the impact on the area in general.

Taking into account all the details of this hearing, coupled with the observations of the
Assessment Authority, the concerned Appraisal Committee makes the final call whether to
grant or refuse the Environment Clearance sought by the industrialist. The Committee may or
may not suggest changes in the proposed plan in order to grant the same.

In case the clearance is granted, the same shall be uploaded on the MoEF’s website, and the
clearance along with other project-related documents shall be forwarded to the concerned
Municipal Authority/ Local Body, and the industrialist is compulsorily obligated to submit
compliance reports to the authorities annually, in furtherance of the conditions on which the
clearance was granted.

Now, let us assume that in the same example, where the project built in an industrial area was
categorized in Category B, after the stage of screening was put into Category B2 and as the
Notification mandates, does not require an Assessment Report. Here, the stages of Scoping
and Public Consultation do not come into the picture. The appraisal will be carried out on
reports based on findings during the site visits, which will be placed before the competent
authority within 15 days. The Appraisal Authority may or may not suggest changes while
refusing or granting the said clearance.

As discussed earlier, in case the clearance is granted, the same shall be uploaded on the
MoEF’s website, and the clearance along with other project-related documents shall be
forwarded to the concerned Municipal Authority/ Local Body, and the industrialist is
compulsorily obligated to submit compliance reports to the authorities annually, in
furtherance of the conditions on which the clearance was granted.

PUBLIC PARTICIPATION

Public participation in environmental decision-making has become an indelible feature of

many environmental regulatory systems world-wide over the past few decades. Individuals
and organisations affected by development approvals, pollution licences, land use plans and
other types of regulatory processes have increasingly demanded greater consultation, and
more transparent and accountable decisions. Parliamentary democracy ratified through
periodic electoral contests is widely viewed as insufficient to provide meaningful public input
into day-to-day environmental decision-making. Governing elites’ hostility to independent
protest and community self-expression has encouraged the creation of ‘surrogate political
processes’,1 wherein citizens’ view are channelled into and considered in alternate
administrative and judicial structures

Public participation is particularly significant in the context of sustainable development.

Sustainability depends largely on the way economic, social and environmental considerations
have been integrated in decision-making. The principles of inter- and intra-generational
equity in sustainable development discourse reflect the centrality of public involvement and
social justice.9 Implementation of the precautionary principle, another part of sustainability
discourse, also depends on public input into the assessment of acceptable risks.
Environmental threats, such as climate change or genetically modified organisms, are often
characterised by scientific and technical uncertainties and risks for which people often hold
very different and competing preferences.10 Public participation can help assess these
uncertainties and risks, and weigh them against perceived benefits.

Historical Perspectives on Participation

Public participation provisions began to appear in the planning and environmental regulations
of some states during the late 1960s and 1970s,23 coinciding with the political upheavals of
these times when publics agitated for more democratic governance and stronger
environmental protection.24 During the 1970s and early 1980s, commentators increasingly
emphasised the value of a ‘bottom-up’, people centred approach to economic development.

Economists such as Schumacher stressed the value of grass-roots, small-scale decision-

making to promote social welfare.

By the 1990s, consultation and participation became the buzzwords of successful

environmental decision-making, feeding into broader discourses on ‘good governance’,
‘environmental justice’ and ‘environmental citizenship

Numerous societal conflicts over development choices in the 1970s and 1980s fuelled
popular demands for more participation in decision-making. For example, in Australia, a
series of protracted and often violent conflicts over logging in World Heritage forests caused
governments to look for more peaceful means by which citizens could be involved in
resource management policy.35 In the urban areas of many countries, community groups
mobilised for more say in decisions about brownfield redevelopment and urban amenity
planning.36 Public participation reforms in Canada, New Zealand, the US and other countries
with indigenous minorities were also influenced by the Aboriginal self-determination
movement.37 The emergence of Aboriginal land claims and demands for self-governance
provided another lever for legal reforms to enhance community involvement in environment
and development decision-making

The Aarhus Convention and its Implementation

Public Participation Provisions of the Aarhus Convention

One of the unique developments in the public participation arena is the 1998 Aarhus
Convention.71 While there are other international environmental treaties that contain public
participation clauses,72 only the Aarhus Convention is dedicated exclusively to participation.
Although the Convention is a product of the United Nations (UN) Economic Commission for
Europe, it is open to accession by any UN member state (with the approval of the parties).
The Convention is a globally significant example of the legal consolidation of measures to
enhance public participation in relation to administrative decision-making, freedom of
information and access to justice.
The Aarhus Convention imposes participation standards for decision-making by public
authorities. They relate to activities that may significantly affect the environment (eg,
construction of a power plant), or policies, programmes and plans relating to the
environment.73 The procedural rights are to be applied without discrimination as to
citizenship, nationality or domicile.74 The first pillar of the Convention is participation in
administrative decision making. Article 6 requires public notice of environmental decision-
making to be given when ‘all options are open’, to allow public comment and input into the
process.75 Public authorities76 must also take public feedback into account in their final
decisions.

Secondly, governments must make relevant information available to the public when
requested, and the Convention stipulates time-frames for responding to these requests.77
Article 4 creates a presumption in favour of information disclosure and public authorities
may deny a request for information only on the basis of the list of specific grounds for
refusal.78 Further, public authorities may refuse to disclose information that would impair the
ability of a person to receive a fair trial, or would adversely affect national defence or public
security.

Environmental courts and ADR processes

Environmental courts and alternative dispute resolution (ADR) mechanisms provide a means
for facilitating public access to justice. They are institutions that have significant public
participation implications. The rationale for special environment courts is that, because many
environmental issues are assumed to be highly complex and technical problems, they require
specialised institutions for evaluation of the claims and evidence.171 It would also enhance
the role of specialist judges in developing a consistent environmental jurisprudence.172
However, the appropriate jurisdiction and structure of a separate environmental forum has
been the subject of much debate.173 Arguments for environmental courts based on the need
for specialist judicial and technical expertise sit uncomfortably with some theories of public
participation that are critical of expert, elite decision making bodies that work to exclude lay
people. Therefore, environmental courts may be more congruent with the rational elitist
models of participation rather than those championing active, community involvement in
decision-making.

At present, only a few countries have successfully established environmental courts with a
liberal approach to standing.

An alternative to the formality of environmental courts are informal ADR175 measures,

including negotiation, arbitration and mediation. All of these measures potentially offer less
costly and less adversarial means of dispute resolution, and in theory create a decision-
making milieu more accommodating of policy, ethical and other non-legal arguments.
Negotiation is a process by which the parties voluntarily seek a mutually acceptable
agreement to resolve their common dispute. Arbitration is an adjudicative process in which
one or more arbitrators issue a judgment on the merits (which may be binding or non-
binding) after an expedited, adversarial hearing in which each party has the opportunity to
present evidence and arguments.