Unprecedented economic growth and climate change have created massive environmental insecurity in their wake. On one hand, countries around the world talk about combating climate change and on the other set overwhelming targets for higher GDP growth rates. India has been using its tag of a ‘developing nation’ in international fora to argue its need for economic growth amid environmental issues. But our country has to recognise the ethos of sustainable development before venturing into a path of concretization. Balance will become a possibility if our Union Ministry of Environment, Forests and Climate Change (MoEFC) takes remedial actions to prioritize environmental protection. 

Currently, many developmental projects in India need Environmental Impact Assessment (EIA) clearance, and many are operating without even obtaining this clearance. And if the construction of a developmental project begins without prior assessment and clearances, the MoEFC, as per it's latest notification, will still consider the project for clearance. Among all cases filed in the National Green Tribunal (NGT), around 41% are cases where the NGT found faults with an EIA assessment.

The present government in power emphasizes ‘minimum government, maximum governance’. It has taken the punch line so seriously that the MoEFC issued a draft notification on the 10th May (was open for public consultation) to discuss the implementation of an Environment Supplement Plan (ESP). Embarrassingly, about 70 percent of the text was plagiarized from the United States Supplemental Environmental Projects Policy.

The idea is to allow EIA violators to carry on with their projects/activities by providing an ESP to the MoEFC. What does this mean? 

ESP would allow violator companies (which constitute the 41 percent of faulty EIA cases) to continue their activities by paying a financial penalty. This would then be invested in an "environmentally beneficial project or activity" for an affected target group of stakeholders. Many experts argue that this indirectly allows pardoning of violations. Rather than building upon the “Polluters Pay Principle”, the ESP looks like an attempt to promote corporate development by using a contradictory "Pay and Pollute" principle. 

An Overview of EIA and ESP

Environmental Impact Assessment (EIA), 2006 regulates the construction, expansion and modernization of developmental projects that have a potential threat to the environment in different parts of India. This law mandates prior environmental clearance to be obtained for a listed project. It is obtained through a series of steps that includes preparation of EIA reports, engagement with project-affected communities through public hearings, and an appraisal of project documents by a group of experts:

Screening -> Scoping -> Public Consultation -> Appraisal

On the other hand, an ESP provides an escape mechanism to violators. Instead of following the path of an EIA clearance, they can get away by paying a penalty through specific investment activities. As per the guidelines defined under ESP law:

An Environmental Supplemental Plan (ESP) is an environmentally beneficial project or activity that is not required by law, but that an alleged violator of Environmental Impact Assessment Notification, 2006 agrees to undertake as part of the process of environmental clearance. “Environmentally beneficial” means an Environmental Supplemental Plan must remediate, improve, protect the environment or reduce risks to public health or the environment.

Corporate Development over Environmentalism?

The nuances of ESP lies in the principles of ‘restorative justice’ - a theory of justice that emphasizes "repairing the harm caused by [unlawful] behavior . . . best accomplished through cooperative processes that allow all willing stakeholders to meet." But environmental protection is a complex domain. Bringing in the concept of an ESP by stating that punishment should not be seen as an end but a means to achieving constructive change for both offenders and victims is unfair to the repeated environmental damages caused by violators. It also nullifies the positive work of EIA and the National Green Tribunal.

Experts have analyzed the ESP plan and come up with following irregularities:

  • ESP is a clever attempt to legalize EIA violation and gain corporate confidence, thereby allowing violator to damage the environment and circumvent the EIA process. 
  • MoEFC stated the notification has legal basis in two judgments, one by the NGT and the other by the Jharkhand High Court. But neither of the two judgments condones EIA violations to be regularized post facto nor does it prescribe a way out of these for violators. Therefore, the MoEFC have no right to bring in the concept of ESP which directly violates India's environment legislation.
  • Kanchi Kohli, Legal Research Director at the Namati Environmental Justice Programme of the Centre for Policy Research argues that ESP directly goes against the logic of EIA of assessing impacts beforehand, which reduces the preventive value of the EIA process. If the violation has already happened, does this mean that the entire process of screening, scoping, public consultation and appraisal can be done retrospectively? If so, the result of this process would be skewed in favour of the violator, encourage violations before even getting approval, and allow for the continuation of project activities unabated.
  • Valuation of environmental loss cannot be just compensated by penuciary payment by the violator. Also, a question arises about the collection and usage of penalty funds for environmental protection and restoration by the ministry. The track record of MoEFC taking any punitive actions against violators is very poor in India. Case in point: the fine of Rs. 200 crore on the Adani SEZ in Gujarat which has not be collected by the ministry till today.

Should the MoEFC implement ESP?

ESP has garnered severe criticisms not only from lawyers, policymakers and activists but even the Supreme Court. Furthermore, the NGT has already quashed two similar office memoranda from the MoEFCC stating that it would “provide benefits to the class of the project or activity owners who have started construction in violation of law, i.e. prior environment clearance.” There is no provision either in the Environment Protection Act 1986 or the EIA Notification 2006 to “regularize” violations post facto. The above case clearly points out the contrast between the NGT and MoEFC - the former is pro-environment protection and restoration while the latter is pro-economic development. 

The argument for a balance between the need for development and ecological preservation has always baffled me as an environmental economist. But growing in this millennium constantly being surrounded by debates over sustainable development, I have emerged as a firm advocate of prioritizing environmental protection over economic development through proper checks and balances. The above text, facts and figures clearly points out that the ministry should immediately withdraw the draft notification. Instead it should work to make the EIA process more effective, robust and transparent rather than kill it altogether through the introduction of an ESP.

(This article has been contributed by Akshat Mishra who is working as Senior Research Associate in CUTS International. He is also the Founding Editor of Pathways to Development – Journalism about the environment, sustainability, and policy from researchers on the ground)