Environmental Impact Assessment
Chapter Fifty-Three
Syllabus topic 2, "Development"
Pages 217 to 220 of 595
In one line
Environmental impact assessment requires the environmental consequences of a project to be identified, published and considered before permission is given, so that the decision is taken with them in view rather than after them.
In the wording a student can write in an exam: environmental impact assessment is the process by which the likely environmental effects of a proposed project are predicted, evaluated and reported before a decision is taken to permit it. Rio Principle 17 requires it as a national instrument for proposed activities likely to have a significant adverse impact on the environment and subject to a decision of a competent national authority. In India it is required by notifications made under section 3 of the Environment (Protection) Act 1986.
What it is for
Four purposes, and stating them is what distinguishes an answer from a description of the procedure.
To make the consequences known before the decision. The point at which an environmental cost can be avoided cheaply is before construction. Afterwards the choice is between tolerating the harm and destroying an investment.
To force integration. Rio Principle 4 requires environmental protection to be an integral part of the development process. Assessment is the procedure that makes integration happen, because it puts the environmental material in front of the same authority that decides on the project.
To create a record. A decision taken on a disclosed assessment can be reviewed; a decision taken on nothing cannot. Almost all Indian clearance litigation is about what the assessment did or did not disclose.
To let the affected be heard. The public consultation stage is where Rio Principle 10 enters the process, and it is what makes the assessment a piece of environmental justice as well as of environmental science.
What it is not
It is not a permission to proceed if the report is favourable. The assessment informs a decision; it does not make it.
It is not a scientific finding. It is a prediction, made by consultants paid by the promoter, about a system that is not fully understood. Treating it as fact is the commonest error in this area, and the Indian case law is largely about what happens when it turns out to be wrong.
It is not a substitute for a standard. A project may pass an assessment and still have to meet emission standards, obtain consents and comply with the waste rules.
The stages of an assessment
Every system has broadly the same five stages, and knowing them makes the Indian notification in the next chapter easy to follow.
Screening. Deciding whether an assessment is needed at all, usually by reference to a list of project types and thresholds.
Scoping. Deciding what the assessment must cover, which is where the terms of reference are settled. A defective scoping produces a defective assessment, and this is where several Indian clearances have failed.
Environmental Impact Assessment
The study and the report. Baseline data on the existing environment, prediction of impacts, assessment of their significance, identification of alternatives, and a management plan setting out mitigation and monitoring.
Public consultation. A public hearing at the site and written representations, so that the people affected can put material before the decision-maker.
Appraisal and decision. An expert body examines the report and the objections and recommends, and the competent authority grants or refuses clearance, usually with conditions.
And a sixth that is often forgotten: monitoring. A clearance carries conditions, and a condition nobody checks is not a condition.
What has to be in the report
Baseline. What is there now: air quality, water, soil, flora, fauna, land use, settlements, livelihoods, and any protected or ecologically sensitive feature.
Prediction. What the project will do to each of those, during construction and during operation.
Alternatives. Other sites, other technologies, other scales, and the option of not proceeding. This is the element most often treated as a formality and it is the one that carries most of the analytical value.
Mitigation. What will be done to reduce each significant impact, at what cost, and by whom.
The environment management plan. The mitigation and the monitoring turned into commitments with a schedule and a budget.
Risk assessment and disaster management, where the project handles hazardous substances.
Worked example
A port is proposed on a stretch of coast. The promoter's assessment reports on air quality, water quality, noise and traffic. It does not mention that the intertidal area supports a fishery worked by four villages, and it does not mention a small patch of mangrove within the project boundary.
Is the clearance vulnerable? Yes, and on the Indian authorities squarely so.
Facts. Hanuman Laxman Aroskar v. Union of India, AIRONLINE 2019 SC 318, concerned the environmental clearance granted in 2015 for a greenfield airport at Mopa in North Goa, on an assessment which did not disclose ecologically sensitive features of the plateau on which the airport was to be built.
Held. The Court suspended the clearance. An environmental impact assessment which does not disclose material facts vitiates the clearance built on it. The expert appraisal committee must apply its mind to the actual ecological character of the site, and the process is a form of due diligence which the law requires before a development decision is made rather than a formality to be completed.
The point for the worked example. The fishery and the mangrove are material facts about the environment of the site. An assessment that omits them deprives the appraisal committee of the material it exists to consider, and the clearance falls with the assessment. The remedy is usually to redo the process rather than to cancel the project.
Environmental Impact Assessment
The criticisms
The promoter pays for the report. The consultant is engaged and paid by the person seeking the clearance, which is a structural conflict that accreditation reduces and does not remove.
Baseline data is thin. Studies are often conducted over a single season and generalised.
Alternatives are treated as a formality. The alternative of not proceeding is rarely analysed seriously.
Cumulative impact is ignored. Each project is assessed alone, so twenty projects each with an insignificant impact can destroy a river between them.
Consultation is weak. Hearings held far from the affected settlement, at short notice, with documents in a language the affected do not read, satisfy the form and not the purpose.
Post-clearance monitoring is the weakest link. Conditions are imposed and compliance is self-reported.
Quick revision
- Rio Principle 17: assessment as a national instrument, for activities likely to have a significant adverse impact and subject to a decision of a competent national authority.
- Four purposes: know the consequences before the decision; integrate, as Rio Principle 4 requires; create a record that can be reviewed; and let the affected be heard, which is Rio Principle 10.
- Five stages plus one: screening, scoping, the study and report, public consultation, appraisal and decision, and then monitoring.
- The report carries baseline, prediction, alternatives, mitigation, an environment management plan, and risk assessment where hazardous substances are handled.
- Aroskar: an assessment that does not disclose material facts vitiates the clearance, and the process is due diligence, not a formality.
- Criticisms: the promoter pays, thin baseline, alternatives as formality, no cumulative assessment, weak consultation, and unmonitored conditions.
Test yourself
1. State Rio Principle 17 and identify what it leaves to each State.
That environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority. It leaves the design of the instrument entirely to the State: which projects, what the study must cover, who appraises it and what weight the result carries.
2. Name the stages of an assessment and identify the one at which most Indian clearances fail.
Screening, scoping, the study and report, public consultation, appraisal and decision, and then monitoring. Most failures are at scoping and in the report, because an assessment whose terms of reference omit a feature of the site produces a report that omits it, and the appraisal committee then decides without the material it exists to consider.
Environmental Impact Assessment
3. What did the Supreme Court hold in the Mopa airport case, and what does it mean for a defective report?
That an environmental impact assessment which does not disclose material facts vitiates the clearance built on it, that the expert appraisal committee must apply its mind to the actual ecological character of the site, and that the process is a form of due diligence the law requires before a development decision. A defective report therefore takes the clearance with it, and the usual remedy is that the process is redone.
4. Give three structural criticisms of the process.
That the consultant preparing the report is engaged and paid by the person seeking the clearance, which accreditation reduces but does not remove. That each project is assessed alone, so cumulative impact goes unmeasured and twenty individually insignificant projects can destroy a river between them. And that post-clearance monitoring is largely self-reported, so a condition imposed is not necessarily a condition observed.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.