In Conversation with Dr. Kanchi Kohli

Q. In light of the Draft EIA 2020, according to you, what is the relationship between the state and the environment, and to what extent is this relationship defined or aided by the anthropocentric nature of the environmental law and vice versa. What are the other factors that determine the relationship between the state and the environment?

The EIA 2020 is a regulatory tool that the state uses to be able to regulate the impact on the environment etc. I think that question can be answered by understanding the constitutional duty of the state, in the legal mandate of the state, and the ethical basis on which the environment needs to be protected.

Constitutionally, the state has clear articles enshrined in the constitution which require the state or the government to protect the environment. Article 48A requires the state to protect the environment or article 51A(g), which states that every citizen has the fundamental duty to protect the environment.

But, in order for the citizens to be able to do their part, the state has to play a facilitative role; has to play a supporting role, that’s the constitutional basis.

There are also a plethora of laws and policies and regulations that enable states to be able to do that. Some of it has come from international conventions, some from demands locally, etc. They are procedure-specific, they are regulatory in nature, etc.

One of the questions that the government needs to ask themselves in today’s times especially when we are repeatedly seeing, in a post-Covid era or post-climate change impacted world is the ethical duty of the government to protect the environment.

This is because everything else then follows after this. In terms of the anthropocentric influence, the very fact that the governments and individuals are engaging with the question of the environment indicates that there has always been an anthropocentric approach to the environment.The concept of sustainable development is extremely anthropocentric in nature.

Ultimately, it is how governments, nationally or internationally prioritize the question of the environment and not make it collateral, in the process of economic development.

Q. The EIA draft notification 2020 has been condemned for various issues such as lack of public consultation, post-facto approval, less stringent rules, and exemption of certain industries from environmental clearance.

The Ministry of Environment Forest and Climate Change has stated “Accepting economic growth, facilitating the ease of doing business and reducing any obstacles to development are some of the reasons behind this draft.” The question is where and why do you think that catering to the environment and indigenous communities, becomes an obstacle to the development of the country?

According to you, what are more effective alternatives to perverse the environment by checking environmentally degrading development projects.

There are two parts to what you’re saying, one is about the idea of development and how the EIA fits into the whole debate. The idea of development is a political construct, it’s about what kind of lifestyle or being are we envisioning ourselves to be in.

Is it concrete-led development, is it nature-led development or is it a balanced development? So, the idea of development is politically constructed, and it has always been that. What is the idea of the good life that one is looking at? What is the idea of what is good or what is bad? It centers around all these things and there is always a play in place. There is geopolitics, national-level politics, caste, and class angles, etc.

The social dimension of this question is big. As I mentioned earlier, development is a political construct and before answering the questioning it is important to ask whether the environment and the local communities belonging to all classes and castes, are at the center of development or are they in the margins.

With the idea of how procedures like the EIA or land acquisition etc. which are similar to such ideas, deal with the question of common lands in the country.

Common lands are often termed as wastelands, however, these lands are extremely important for their own biodiversity, there also very important for pastoral communities for grazing, all the occupations that are not considered to be productive or of high value.

From the beginning if one is politically constructing common lands as wastelands, the moment they come under the EIA procedure they will become dispensable. Both these occupations will become dispensable, that is both the lands and occupations will become dispensable.

The conclusion will be that it is not high impact. As the impacts are not much so it can be dispensed. I think the idea of development is such a political construct that how we apply it and each person applying their own value while regulating the environment becomes a big question. There are expert communities that come with their own bias.

If you look at the EIA procedures the question of alternatives is already there because EIA procedures are meant to regulate. They (the procedures) are there to help the government to make good decisions.

Building from what I’ve been saying so far, the idea alternatives really comes up in a big way because, for instance, in the EIA procedure if you ask a question whether there is any alternative for citing a particular development project here, or is there only any alternatives for this kind of image generation etc.

These are all questions that can be asked through this process. However, if one notices the kind of answers you get in India in the application forms and projects etc., for example, one document that is planning to fragment thick forests and highly important forests for tribal communities in central India, will state that there is no alternative to coal as the answer to that question about what are the alternatives to coal.

Now if you change the game and say is there any alternative for elephants, are there any alternatives for the forest products that people get from that forest, or is there any alternative for the river that flows and depends on that forest. It’s how one approaches that question and the approach to your question is a political construct.

Q. Historically, the EIA has merely had the effect of legitimizing environmentally degrading actions. There have practically been zero disapprovals of profits under the clearance mechanism since 1999. Is there a requirement to retrace and replace the EIA, or is a reconstruction of the mechanism involved sufficient?

There is no denying that Environment Impact Assessment procedures across the world require a review. They were introduced in the late 1980s and early 1990s across the globe as package laws through international financial institutions such as the World Bank were involved.

They have introduced package laws to say that there is going to be a high-level investment in economic growth or financial investment in priority sectors such as infrastructure growth, mining, etc. in these countries.

So, there is a need for a process by which Environment Impact Assessments have to be carried out and a good decision has to be taken by the government.

That was a few decades back. So when EIA procedures were introduced across, in different parts of the country including India, there was a huge legacy of projects that have gone through the regulatory net, were not there; we did not have that pool of projects which included 1500 plus projects that had just gone through the environment ministry’s regulatory claim or this doesn’t include all those which have not gone through them.

So, with all those projects, there is a whole legacy. The idea of retrospective EIA was never spoken about. For instance, you’ve done an EIA in 1994, 1996 or 1998, there is a limit to the human ability and scientific ability to predict impacts or design mitigation methods.

That is why repeatedly the idea was that one needs to go back and see whether what you predicted came true or not. That can inform good decisions in the future. There is a need to bring that into the EIA procedures.

This has been said by several people. We did not have the kind of conversation regarding the issues of climate change or public health. These are very critical components that the EIA procedure don’t talk about. Finally, when it comes to questioning public participation, right now EIA procedures, however, are compromised, they universally apply to anybody who wants to participate, even from the local community point of view.

However, it doesn’t recognize that communities are not a monolith, there are huge social hierarchies in play. So, the EIA procedures have to respond to and be able to hear the voices of everybody who is going to be impacted by these projects. EIA’s are extremely caste blind, class blind, or gender blind.

These are all issues that one needs to bring in as a progressive way to take EIA procedures forward, other than many other things such as delinking EIA consultants to project proponents, all the financial arrangements, etc. EIA procedure requires changes, but it needs to be scaling up the review rather than reading it down

Q. What are some of the changes made in the clearance process through the EIA 2020 notification, which has had the effect of whittling down the regulatory mechanisms enshrined within the EIA. What are the implications of these changes? To what extent have the amendments caused the clearance process to stray from the precautionary principle on which the EIA is based?

One of the things that the government has spoken about, and we all know about, and many have studied it as well, the EIA 2020 was a compilation of all the changes that had been happening for a very long time and more.

So all the exemptions and exceptions, that were already in place through office memorandum, circulars, piecemeal amendments, etc. were condensed into the EIA 2020 and so forth.

There were projects that were exempted either from the entire procedure or from parts of the procedure. Exemptions and exceptions are definitely part of the EIA 2020 that came up.

The EIA 2020 hugely read down as a part of the exceptions and how it related to the idea of public participation. It completely saw it as a bureaucratic process that needs to be completed, rather than a democratic process that needs to be undertaken by the state to a certain good position or to arrive at a good position. It was like a bureaucratic tick-off; you need to go through it, get it quickly done in this kind of format.

It was how files would move rather than how people have to be involved in decision-making. That was the second thing that happened, which had begun to happen for a while, but it was kind of embraced in a big way in the EIA 2020.

The Ministry of Environment has introduced a standard operating protocol related to how they will deal with violation-related projects. That was embedded in the draft EIA 2020 in a big way. This became hugely problematic because this was not a one-time amnesty scheme that there introduced earlier, but it was going to be a standard operating protocol consistently at any given point of time in the EIA process.

There was absolutely no deterrence against non-compliance except for the fact that they would not pay for damages or that you will have to deal with the state of power shut up for a while, if at all your operations.

The way the government’s approach to violations was not of deterrence but it was of trying to bring recognition that one needs to bring a whole bunch of projects in the regulatory net, but there is a way to regularise.

One of my colleagues spoke about it in one of the newspapers, she said that this is going to be one of the biggest regularisations drives for development projects in the country.

Finally, it did nothing still on how the government is going to deal with the issues of non-compliance of environmental safeguards in condition, which is the biggest legacy of the EIA process right now in the country, which has to be addressed.

All the polluting landscapes, degradation, forest encroachment, etc. which can be addressed through the non-compliance of conditions, labor conditions, etc. is still very weak. The implication is that decisions under the EIA process or from the environmental approval process are not mere legal decisions.

It has huge impacts on ecology, it has impacts on society, it has impacts on health, and a whole bunch of factors. One has to see it in those terms and recognize the ethical importance of EIA processes, rather than a procedural tick-off thing.

What it does to precaution all these four factors, that I spoke about do not uphold the precautionary principle. It is largely based on the polluter. Precaution has gradually moved away from the EIA process.

It is still structurally part of it, but it’s gradually moved away and all the exemptions and exceptions how the government is treating violations, seriously undermine the idea of precaution when the world requires it even more today.