How India’s Draft Environmental Impact Assessment Notification impacts Environmental Rights
The Indian Ministry of Environment, Forest and Climate Change released a draft Environmental Impact Assessment Notification, 2020 (hereinafter ‘the 2020 notification’) in March 2020. This will succeed the previous 2006 Notification, which constituted the regulatory framework for environmental impact assessments (EIA) in India. Far from being a step forward from its predecessor, the 2020 notification adopts a regressive approach towards human rights considerations within environmental decision-making. Not only does the notification detract from the environmental rights of India’s citizens, but also potentially fails to fulfil India’s extra-territorial human rights obligations under international law.
The public consultation stage in the EIA enables concerned persons to voice their grievances and opinions. It serves as a pre-emptive protection for the rights of those most likely to be affected by a project. The indispensability of this procedural protection in safeguarding substantive human rights has been acknowledged by the Office of the UN High Commissioner for Human Rights, which has highlighted ‘the virtuous circle between human rights, the environment and access rights.’ The 2020 notification detracts from these procedural rights by reducing the minimum period given to the public for furnishing their responses to 20 days from the previous 30 day period. This comes despite a 2016 Audit Report by the Comptroller and Auditor General of India highlighting serious deficiencies in the public consultations within previous EIAs.
Additionally, the 2020 notification exempts an apparently large number of industries from the requirement of public consultation, including coal mining, cement plants, chemical fertilisers, manufacturing of acids and pesticides (see Schedule I). This is a significant dilution from the statutory requirements in the 2006 Notification. Moreover, clause 14(2)(e) provides discretion to the Central Government, with virtually no oversight, to identify a project as ‘concerning national defence and security or other strategic considerations’. These projects are exempt from public consultation. Wide discretion to the Government, increased exemptions, a reduced notice period, and the requirement of holding public participation only once throughout the entire EIA process, essentially set the stage for violation of the environmental rights of local populations.
The need to respect environmental human rights of populations beyond national borders has been recognized by the Aarhus Convention (Art. 3(9)). Although India is not a party to the Convention, the mandate to respect human rights extraterritorially in environmental matters can also be traced to the principle of non-discrimination within international law, as endorsed by UNEP,OECD, ILC. This principle must be considered in light of the ruling in Portillo Cáceres v. Paraguay, which extends Art. 6 of ICCPR to include States’ duty to protect individuals from environmental degradation. As views supporting extraterritoriality of human rights obligations have gained traction, one can fairly argue that India’s EIA framework must cater to the concerns of foreign populations, whose environmental rights could be impacted by the potential transboundary effects of projects within India.
The 2020 Notification makes no such provision. Although it does refer to ‘border areas’ in its definitions clause, it does so only to exempt certain types of projects within border areas from any requirement of public consultation (Clause 11). For other projects in border areas, which require prior public consultation, no provision is made for the representation of concerns of foreign persons (See Appendix I).
The 2020 Notification, therefore, effectively allows a concentration of highly-polluting industries in border areas, to divert most of their ecological impact towards populations in bordering states, without allowing such populations to voice their concerns at any stage of the EIA. Arguably, there exists a protection for neighboring states against transboundary environmental harm under international law, as captured in Art. 21 of the Stockholm Declaration, to which India is a signatory. However, there has long existed a consensus that interstate remedies are a relatively onerous mechanism for redressal of environmental grievances, and that lower-level solutions, through national bodies, are much more preferable and effective (Bilder , p. 224).
Recourse must be had to domestic institutional and policy frameworks that can integrate environmental concerns of affected foreign populations within environmental decisions. Seen in this light, the 2020 notification appears to be far out of tune with the required standard of state obligations vis-à-vis environmental and human rights of domestic and foreign populations.