September 2016 marked a decade of the Environmental Impact Assessment (EIA) notification, a short, ‘subordinate’ legislation whose powers far outweigh its text. Promulgated first in 1994 under the Environment (Protection Act), 1986, and then ‘re-engineered’ in 2006, this legal tool is ostensibly our mechanism to arrive at a balance of environmental priorities and developmental needs. The law provides for an informed process for site selection and grant of approval for an industry or project in any area. It involves the drafting of an EIA report with a statement of how impacts could be mitigated or offset and under what conditions the project should be approved, if at all. Like most environmental matters, this would have been an extremely technical process, but for one reason: the process of public hearings and consultations.
The first phase of socialisation
One of the first environmental public hearings was held for the Enron project in Karnataka in the early 1990s under police protection. At that time, the government imagined it as a forum for seeking consent from the people who would live in the neighbourhood of these projects. The public hearing process was made a part of the 1994 EIA notification only in 1997. This space is the legacy of a generation of activists within and outside the government — those who had a healthy criticism of the state and what it could do in the name of “public interest” as well as those who felt that better decisions came from dialogue. Despite legal amendments to restrict this forum and cynicism on the part of the participants that they are being co-opted into an inherently unjust project approval process, the public hearing process till date gets enormous numbers of people to debate thorny questions of development.
Public hearings have been successful in drawing attention to the large-scale impacts that projects have on communities and the environment. When projects have gained approvals despite severe public opposition, these hearings have been excellent open classrooms to learn about the political economy of development and the passing on of risk to the poor and vulnerable. In several recent cases, these fora have been used to negotiate the mandatory conditions under which projects should be given approvals.
The compliance gap
What happens after public hearings and a project is granted environmental approval? This phase deserves urgent attention if we are to make any dent on the issues of air quality, shortage of freshwater, and degradation of productive farms and fishing areas. Every project granted approval from the Environment Ministry, the State departments, or specialised bodies such as the Pollution Control Boards or Central Ground Water Authority come with conditions that have to be followed. The regulatory regimes for project approval pay scant attention to the compliance of these conditions. Environmental compliance has been left to the vague and closed-door practices between two parties — the government and the project developer. With no third party to oversee the process or the results of compliance, it remains a facile, bureaucratic exercise.
What this means is that in Janjgir in Chhattisgarh, coal-fired power plants dump noxious fly ash on roadsides and farms routinely; in Odisha’s Keonjhar district, slurry from iron ore mines have denuded paddy fields and freshwater streams for over 15 years; and on the Saurashtra coast of Gujarat, bauxite or limestone dust saturate the air. Over 12,000 projects all over the country have been given EIA approvals with conditions that are meant to reduce harm to the environment and those who live around them. The number is greater if pollution consents are added to the list. There are only a few independent studies by researchers and the Comptroller and Auditor General’s office to show the poor levels of compliance.
Environmental institutions collect some data on a regular basis through their monitoring mechanism but these data are not accessible to citizens in any meaningful way. While regulators complain that they have no organisational resources to do this well, it is also true that there has never been enough reason for them to pay attention to the compliance of projects that they once approved. After all the biggest-ever government programme on clean-ups, the Swachh Bharat Abhiyan, has preferred to focus on how citizens create filth rather than the environmental mess that state practice has produced systematically since the 1950s.
A renewed engagement
As we close in on a decade of the new EIA notification, it is imperative to expand the process of socialising environmental governance to the arena of compliance. Rather than an empty legal or regulatory category, compliance needs to be seen as the minimum acceptable standards of development through a social contract between projects, governments and communities. It could tie the expectations of communities to be protected against risk with their aspirations for development through production. In each one of the scores of projects that are operational today, it is impossible to know if the safeguards in their approval letters are adequate and what their upper limits are. These issues can be addressed meaningfully only when communities that are forced to live near these projects are allowed to engage with environmental regulators. The priority or value setting that takes place at the time of public hearings has to be sustained through the life of the project through the process of compliance. In addition, systematic data collection and developing of public archives on the compliance of projects over time, sectors and regions can go a long way in reframing the knowledge and regulatory structures for environmental governance.
Manju Menon and Kanchi Kohli are with the Centre for Policy Research-Namati Environmental Justice Programme.