EIA Legislation

Environmental Impact Assessment Notification, 2006

The Union Ministry of Environment and Forest (MoEF) notified the new EIA Notification in September 2006 after putting up the draft notification for public comment for a year.

The objective of EIA Notification 2006 is to address the limitations in the old EIA Notification (1994). Therefore, various modifications have been incorporated in the old Notification, which the ministry claims have been done after taking into account the feedback from the different stakeholders. Some of the key differences in the New Notification and the old one are listed in table 1.

Table 1: Major differences in New EIA notification 2006 and old notification (1994)

EIA Notification 1994 (including amendments) EIA Notification 2006
1. Projects in Schedule-1 have been divided into two categories, Category A and B.Category A project will require clearance from Central Government (MEF). Category B will require clearance from State Government. However, the state government will first classify if the B project falls under B1 or B2 category. B1 projects will require preparation of EIA reports while remaining projects will be termed as B2 projects and will not require EIA report.This has the potential of being a good move as decentralization of power may speed up the project clearance process. However, it may be misused and there is an urgent need to build the capacity of the state regulators to deal with their new responsibilities.  Proponent desiring to undertake any project listed in Schedule-1 had to obtain clearance from the Central Government. 
2. Well defined screening process with projects divided into two categories:Category A: All projects and activities require EIA study and clearance from central government.Category B: Application reviewed by the State Level Expert Appraisal Committee into two categories - B1 (which will require EIA study) and B2, which does not require EIA study.  In screening, the project proponent assesses if the proposed activity/project falls under the purview of environmental clearance, than the proponent conducts an EIA study either directly or through a consultant.
3. Scoping has been defined in the new Notification. However, the entire responsibility of determining the terms of reference (ToR) will depend on the Expert Appraisal Committee.  This will be done in case of Category A and Category B1 projects. However, the finalisation of ToR by the EACs will depend on the information provided by the project proponent.  There is however a provision that the EACs may visit the site and hold public consultation and meet experts to decide the ToR. However, if the EACs do not specify the ToR within 60 days, the proponent can go ahead with their own ToR.The final ToR shall be displayed on the website of the Ministry of Environment and Forests and concerned State / Union Territory Environment Impact Assessment Authority (SEIAA).  Scoping was not applicable. The terms of reference was completely decided by the proponent without any public consultation. 
4. Public Consultation- All Category A and Category B1 projects or activities have to undertake public consultation except for 6 activities for which public consultation has been exempted. Some of the projects exempted include expansion of roads and highways, modernization of irrigation projects, etc. Some of these may have potential social and environmental impact.The responsibility for conducting the public hearing still lies with the state PCBs. Member- Secretary of the concerned State Pollution Control Board or Union Territory Pollution Control Committee has to finalise the date, time and exact venue for the conduct of public hearing within 30 days of the date of receipt of the draft Environmental Impact Assessment report, and advertise the same in one major National Daily and one Regional vernacular Daily. A minimum notice period of 30 days will be given to the public for furnishing their responses.The public consultation will essentially consist of two components – a public hearing to ascertain the views of local people and obtaining written responses of interested parties.There are no clear guidelines like in earlier Notification who all can attend the public hearing. The use of “local people” for public hearing raises doubt if the hearing can be attended by interested parties like NGOs, experts, etc or is restricted to only locals. Is the role of NGOs/experts limited to the sending written letters/feedback to the PCB?The Notification makes provision that Ministry of Environment and Forest shall promptly display the Summary of the draft Environment Impact Assessment report on its website, and also make the full draft EIA available in Ministry’s Library at New Delhi for reference.No postponement of the time, venue of the public hearing shall be undertaken, unless some untoward emergence situation occurs and only on the recommendation of the concerned District Magistrate. This was not a part of the earlier Notification.

The SPCBs or Union Territory Pollution Control Committee shall arrange to video film the entire proceedings. This was also absent in the earlier notification and may be considered as a good move to ensure that public hearing is proper. Unlike the earlier notification, no quorum is required for attendance for starting the proceedings. This may be misused as the

The project proponent has to write to State Pollution Control Board to conduct public hearing.It was the responsibility of the State Boards to publish notice for environmental public hearing in at least two newspaper widely circulated in the region around the project, one of which shall be in the vernacular language of the locality concerned.

Source: Industry & Environment Unit, Centre for Science & Environment, 2006  

Though, there have been some improvements in the new notification over the previous one, it has certainly failed to meet the expectations of the various stakeholders, especially members of the civil society, NGOs and local community.

The New Notification has tried bringing in more number of projects within the purview of the environmental clearance process. As a result, a revised list of projects and activities has been redrawn that requires prior environmental clearance (see annexure 1). Most importantly, there is no cateogrisation of projects requiring EIA based on investment, rather size or capacity of the project determines whether it is cleared by the central or state government.

The major difference in the New EIA Notification 2006 from the earlier one (1994) is its attempt to decentralise power to the State Government. Earlier all the projects under schedule 1 went to the Central Government for environmental clearance. However, as per the new notification, significant number of projects will go to the state for clearance depending on its size/capacity/area. For this, the notification has made a provision to form an expert panel, the Environment Appraisal Committees (SEAC) at the State level. Though this is a good attempt to reduce the burden on the central government, however, this provision can be misused as in many cases state government is actively pursuing industrialisation for their respective state. The new notification has also failed to mention if there would be some sort of monitoring of state level projects by the central government.

The proposed notification also talks about ‘Scoping’, which was completely missing earlier. The terms of reference (ToR) of the project will now be decided by the SEAC at the state-level and by Environment Appraisal Committees (EAC) at the Central level. The will be decided on the basis of the information provided by the proponent. If needed the SEACs and EACs would visit the site, hold public consultation and meet experts to decide the ToR. The final ToR has to be posted in the website for public viewing. Though this seems good on paper, however, the proponent itself is providing the information for finalisation of ToR and moreover there is no compulsory provision for public consultation. Further, if the EAC does not decide the ToR within the stipulated time, the project proponents can go ahead with their own ToR.

Though there is clear mention of appraisal in the EIA process, there is no mention of post monitoring, a very important part of the entire EIA process.

The area where there could have been major improvements in environment clearance process, i.e. public consultation, the new EIA notification is a major disappointment. The public consultation as was earlier done will still be conducted at the end of the environment clearance process where there is very little scope for the public to play any active role. 

Moreover, the new Notification has made few changes that weaken the public consultation process. There is a provision in the new notification where a public consultation can totally be foregone if the authorities feel the situation is not conducive for holding public hearing. This can limit the involvement of people. Further, the consultation process has been divided into public hearing for local people and submission in writing from other interested parties. If this is the case, then NGOs/civil society organisation will not be able to take part in the public hearing process, which will significantly affect the efficiency of the consultation process.

The focus of the New Notification has been to reduce the time required for the entire environment clearance process. The earlier process took around 14-19 months for Rapid EIA and 21 to 28 months for comprehensive EIA. As per the new notification, the category A project will be completed only in 10.5 to 12 months. There seems to be no justification for this and may result in compromising on the efficiency and transparency of the clearance process, which was quite evident from the earlier notification even though the process had more time. 

EIA Notification, 1994

The environment impact process was integrated into the Indian legal system in 1994 when Environment Impact Assessment (EIA) Notification came into existence. The objective of the Notification was to push for more sustainable industrialisation process in the country after giving due consideration to environmental and social impacts. For doing so, the notification imposed restrictions on setting up, modernising or expanding any new project or proposal without getting an environmental clearance from the government. 

The notification specified the type of project/proposal that needed environmental clearance and thus would have to conduct the EIA. The Act made it mandatory for all projects listed in schedule 1 to get an environmental clearance from the Central government, be it, for setting or expanding any plant anywhere in the country. It also listed a number of projects/proposals, which have been exempted from the environment clearance process or public hearing. 

The notification also made provisions for formation of an Impact Assessment Agency (IAA), which essentially consisted of experts for review of the documents submitted to the MEF for clearance. It defined the roles and responsibilities of the IAA and has fixed time frame for various stages of the environmental clearance process. The notification also made the provision for the proponent to reapply in case it was rejected due to lack of data. It, however, placed a penalty of automatic rejection in case of misrepresentation and concealing of factual data. 

Several changes were made to the original notification. The first amendment came within a few months of the notification on July 4, 2005. Many more were to follow. The EIA notification 1994 was amended 12 times in 11 years. While most of the amendments diluted the process of environmental clearance process, there were some, which also strengthened the process. Some of the key amendments are discussed as follows:

  • Amendment on April 10, 1997: The process of environmental public hearing (EPH) was introduced in the environmental clearance process. The SPCBs were entrusted to conduct public hearing to get the views and concerns of the affected community and interested parties for the proposed project. It was also entrusted with forming an EPH committee to ensure fair representation in the public hearing process. This amendment also made some changes with reference to the environmental clearance required for power plants. 
  • Amendment on June 13, 2002: This amendment diluted the purpose of the notification exempting many industries from the EIA process or from the entire environment clearance process on the basis of level of investment.
    • It exempted pipeline and highway projects from preparing the EIA report, but these projects would have to conduct public hearings in all the districts through which the pipeline or highway passes.
    • A number of projects were totally exempted from the Notification if the investment was less than Rs 100 crore for new projects and less than Rs. 50 crore for expansion/modernisation projects.
    • Most of the industries exempted from the clearance process had a very high social and environmental impact even if the investment was less than Rs 100 crore. For example, in case of hydel power projects, irrespective of the investment, there will be social impacts due to displacement.
    • No EIA was required for modernisation projects in irrigation sector if additional command area was less than 10,000 hectares or project cost was less than Rs. 100 crore. 
  • Amendment on 28th February, 2003: This amendment added a little tooth to the notification. It took into consideration location-sensitivity into the environment clearance process. This amendment prohibited certain processes and operations in specified areas of the Aravalli range.
  • Amendment on 7th May 2003: The notification was amended to expand the lists of activities involving risk or hazard. In this list, river valley projects including hydel power projects, major irrigation projects and their combination including flood control project except projects relating to improvement work including widening and strengthening of existing canals with land acquisition up to a maximum of 20 metres, (both sides put together) along the existing alignments, provided such canals does not pass through ecologically sensitive areas such as national parks, sanctuaries, tiger reserves and reserve forests.
  • Amendment on August 4th 2003: This amendment was similar to the one in February 2003 that tried bringing in location-sensitivity in the entire environmental clearance process. Any project located in a critically polluted area, within a radius of 15 kilometres of the boundary of reserved forests, ecologically sensitive areas, which include national parks, sanctuaries, biosphere reserves; and any State, had to obtain environmental clearance from the Central Government.
  • Amendment on September 2003: Site clearance was made mandatory for green field airport, petrochemical complexes and refineries. Moreover, the amendment added that no public hearing was required for offshore exploration activities, beyond 10 km from the nearest habitation, village boundary, goothans and ecologically sensitive areas such as, mangroves (with a minimum area of 1,000 sq.m), corals, coral reefs, national parks, marine parks, sanctuaries, reserve forests and breeding and spawning grounds of fish and other marine life.
  • Amendment on July 7th, 2004: It made EIA mandatory for construction and industrial estate.
  • 13th Amendment on 4th July 2005: The amendment provided that projects related to expansion or modernisation of nuclear power and related project, river valley project, ports, harbours and airports, thermal power plants and mining projects with a lease area of more than 5 hectares could be taken up without prior environmental clearance. The Central Government in the Ministry of Environment and Forests may, on case to case basis, in public interest, relax the requirement of obtaining prior environmental clearance and may, after satisfying itself, grant temporary working permission on receipt of application in the prescribed format for a period not exceeding two years, during which the proponent shall obtain the requisite environmental clearance as per the procedure laid down in the notification. The grant of temporary working permission would not necessarily imply that the environmental clearance would be granted for the said project.

    There was a wide spread opinion that the EIA notification was not able to address all the concerns and had several weaknesses which was making the entire clearance process weak. This was the reason why Union Ministry of Environment and Forest (MoEF) initiated the process of bringing in some significant modifications in the environment clearance process. A draft notification was published on September 15, 2005. This was put up for public comment for a year and has recently been notified in September 2006. 
  • The Union Ministry of Environment and Forest proposes to once again modify the EIA notification 2006. It came up with draft notification on January 19, 2009which has now been put up for public comment. The draft notification is a major disappointment for civil society as it proposes to further dilute the environmental clearance process, which could pose a major risk to environment security of the country. For more information read CSE’s comment on draft notification, which has been sent to the ministry for consideration.