Environmental Justice

Environmental Justice Basics

Checklist Wildlife Trust of India http://www.thehindu.com/opinion/columns/Pawns-in-the-great-forest-game/article14547716.ece

Environmental Impact Assesment The EIA Notification 2006 lays out a detailed process for obtaining Prior Environment Clearance for any new projects or activities, or the expansion or modernisation of existing projects and projects seeking capacity addition with change in process or technology. Projects or activities are categorised as A and B, depending upon the extent of their capacity and size

Introduction Approval process: Category A projects acquire their clearance from the MoEFCC while category B projects apply for clearances to the State Environment Impact Assessment Authority (SEIAA). The environment clearance process consists of four steps of screening, scoping, public consultation and appraisal Expert Appraisal Committees (EACs) are constituted at the Central Government and the State Government or Union Territory level (called the State Expert Appraisal Committee), which screen, scope and appraise applications for Category A and Category B projects respectively

Environment Impact Assessment Process Screening : At this First Stage it is determined whether a project is category A or B.More Detailed Screening is done for category B . Only those projects , Which require an impact assessment , are Considered B1. In recent Years there have been guidelines issueds for determining projects Such as B1 and B2 . There are also special references to Building and Constructing projects and Mining of Minor Minerals upto 5 hectares as B2

Process 2 Scoping : Detailed and Comprehensive Terms of reference TOR) are generated by the EACs or SEACs , as the case may be , according to which the EIAs are prepared Public Consultation - Appraisal - The applications are then Scrutinised by the EACs and SEACs and recommendation are made to the COncerned regulatory authority - the Moefcc or SEIAA . Environmental Clearance

EIA Notification Diagram - It is only after this that an environmental clearance is issued with a Specific Validity depending on the Kind of Project EIA Notification Diagram -

Basic Definition What do you mean by State Level Environment Impact Assessment Authority (SEIAA)? • State Level Environment Impact Assessment Authority:- A State Level Environment Impact Assessment Authority (SEIAA) shall be constituted by the Central Government under sub-section (3) of section 3 of the Environment (Protection) Act, 1986 comprising of three Members including a Chairman and a Member – Secretary to be nominated by the State Government or the Union territory Administration concerned.

State level Expert Appraisal Committee The SEAC at the State or the Union territory level shall be constituted by the Central Government in consultation with the concerned State Government or the Union territory Administration with identical composition; The Central Government may, with the prior concurrence of the concerned State Governments or the Union territory Administrations, constitutes one SEAC for more than one State or Union territory for reasons of administrative convenience and cost; The EAC and SEAC shall be reconstituted after every three years;

Recent Draft Notifications Recent Draft Notification : The Draft Notification has been issued by the Central Government while exercising its powers under Section 3(1) and 3(2)(v) of the EP Act read with Rule 5(3)(d) of the Enviroment (Protection) Rules, 1986

Environment Supplement Plan The aim of the Draft Notification is to deter non-compliance and ensure that the ‘unfair economic advantage’ accrued to the violator is recouped. It proposes that projects which have commenced without the mandatory environment clearance, though treated as cases of violations, will still be appraised for grant of clearance.Simultaneously, such projects ‘may implement the Environmental Supplemental Plan to remediate the damage caused or likely to be caused, and take out the undue economic gain due to non-compliance and violation

Against the Rule of Law If the clearance is sought ex post facto, the main objective of the EIA Notification – to impose restrictions and prohibitions on certain projects and activities because of their potential impacts – is defeated.

Critique An Expert Group will be constituted and it will be responsible for preparing the ESP and monitoring its implementation The main objective of the Draft Notification appears to be to ensure projects and activities that have commenced without an environmental clearance are still considered for approval, without necessarily initiating any penal action against the offender.In effect, the Draft Notification condones the illegal (and criminal) act of commencing work without obtaining an environmental clearance based on the assumption that an ESP would be prepared and implemented

its successful implementation is not a pre-condition to the grant of environmental clearance. In fact, according to the Draft Notification, the appraisal process under the EIA Notification is supposed to move simultaneously with the ESP preparation process. • This means the project proponent can obtain a clearance under the EIA Notification, complete the project and start operation, but is not required to successfully and effectively implement the ESP.

Nature of this Penalty Action The Draft Notification notes that ‘action will be initiated accordingly’ in case the ESP is not satisfactorily implemented, but the nature of this penalty action has not been defined. There appears to be no mechanism to enforce the implementation of the ESP

Project proponent’s consent defeats the purpose The consent of the project proponent has to be obtained for implementing the ESP. Assuming the ESP has been prepared in a professional and independent manner by the Expert Group and it could indeed recoup the economic advantage illegally accrued to the project proponent, and ameliorate the environmental harm, giving the choice to the project proponent to then not implement the ESP appears to go against the very objective of the Draft Notification.

Sand Mining (Current Affairs ) ‘Decentralization of Environmental Clearance for Sustainable sand Mining and Mining of Minor Minerals Introduced’: Javadekar The Government has announced that the process of granting Environmental Clearance for sustainable sand mining and mining of minor minerals has been decentralized. The Ministry has created District Environment Impact Assessment Authority (DEIAA) for proper monitoring of sand mining. In consultation with the State governments, the Ministry has also prepared guidelines for sustainable sand mining.

Amendments in EIA Notifiacation added that amendments in Environment Impact Assessment (EIA) Notification, 2006, have been notified in the Gazette of India, vide SO No. 141 (E) on 15.01.2016 For the first time the procedure for handling cases of cluster defined and also for one cluster one EIA/EMP and one public hearing to be conduct Four-member District Level Environment Impact Assessment Authority (DEIAA) is responsible for grant of environmental clearance for Category ‘B2’ Projects for mining of minor minerals, for all the districts in the country..

Cont…. The Chairperson of DEIAA will be District Magistrate or District Collector and the Member Secretary will be Sub-Divisional Magistrate or Sub-Divisional Officer. The other two members are DFO and Expert to be nominated by Divisional Commissioner For the purposes of assisting the Authority for the districts, the Ministry has also constituted an eleven Member District Level Expert Appraisal Committee (DEAC) for all the districts of the country. The Chairperson of the DEAC will be Executive Engineer, Irrigation Department and Member Secretary will be Assistant Director, or Deputy Director or District Mines Officer or Geologist in the district

District Survey Report for Sand and river bed Mining Preparation of District Survey Report for sand and river bed mining and mining of other minor minerals are envisaged. http://pib.nic.in/newsite/PrintRelease.aspx?relid=134689

Coastal Regulation Zone Rule CRZ - History The 500 m from the HTL mentioned in Indira Gandhi’s letter became legally categorised as the ‘Coastal Regulation Zone’ and this space was to be governed by a complex set of prohibitions, procedures and plans. Since then, the CRZ Notification has been applicable to India’s coastline that extends over 7,500 km and hosts a quarter of the country’s population, including fishermen and other communities, who engage in a whole range of livelihoods and occupations such as fisheries, salt production, horticulture and shrimp farming

Implications of Coastal Reguations It is estimated that about 3,200 fishing villages are situated along the Indian coastline and harvest 75 per cent of the total national fisheries resources.4 Each village uses up to a distance of 3 km beyond its village boundary for net repairs, boat parking, fish drying and other fisheries related activities. infrastructure projects, such as ports and oil pipelines that can be undertaken only at this cusp of land and sea. The seafood industry, export processing zones, shipping, ports, security infrastructure and manufacturing units that require large amounts of water would also prefer coastal locations. New Renewable Energy

CRZ notification The CRZ Notification is meant to regulate the use of coastal space among competing uses such as competing housing, industry, and public use while also maintaining the ecological viability of these niche spaces. The main aspects of the CRZ Notification are the following: ZOnation Regulation Conservation

CRZ Notification 1991 – EP Act Clause 4 of the CRZ Notification, 1991, under the sub heading “Procedure for monitoring and enforcement”, stated: “The Ministry of Environment & Forests and the Government of State or Union Territory and such other authorities at the State or Union Territory levels, as maybe designated for this purpose, shall be responsible for monitoring and enforcement of the provisions of this notification within their respective Jurisdictions State Pollution Control board - Supreme Court judgement

Institutions Which are the institutions responsible for the implementation of the Coastal Regulation Zone (CRZ) Notification? The three institutions responsible for the implementation of the CRZ Notification are: i) The National Coastal Zone Management Authority (NCZMA) ii) State/Union Territory Coastal Zone Management Authorities (SCZMAs/UTCZMAs) in every coastal state and Union Territory iii) District Level Coastal Committees (DLCCs) in every district that has a coastal stretch and where the CRZ Notification is applicable

CRZ 1991 - 2011 2. How were these institutions constituted? Did the CRZ Notification provide for them? The CRZ Notification, 1991, did not provide for the constitution of these institutions. The CRZ Notification, 2011 mentions these institutions. In clause 6 (a), power was delegated to the National and State/Union Territory Coastal Zone Management Authorities under the Environment (Protection) Act, 1986, for the implementation of the Notification.

District Level Coastal Committees Further, clause 6 (c) of the Notification provides for the constitution of District Level Coastal Committees (DLCCs) in all coastal districts. It makes the State/Union Territory CZMA responsible for constituting them.

Desired Composition Is there a desired composition and tenure for the NCZMA? The CRZ Notification, 2011, states in clause 6 (b) that composition and tenure of the NCZMA has been fixed by the MoEF in terms of orders of the SC. 5. What are the responsibilities and powers of the NCZMA? NCZMA has the power to take actions necessary “for protecting and improving the quality of the coastal environment and preventing, abating and controlling environmental pollution in coastal areas.” It is responsible for the coordination of actions of SCZMAs and for providing technical support and assistance to them when necessary.

Cont….. It has also been authorised by the MoEF to examine proposals received from the SCZMAs and UTCZMAs for: • Changes and modifications in the classification of Coastal Regulation Zone (CRZ) areas and in the Coastal Zone Management Plans (CZMPs). • The area specific management plans, Integrated Coastal Zone Management (ICZM) Plans (World Bank Projects ) and modifications of the same.

Advise the Central Government Further, it may advise the Central Government on policy, planning and research and development in relation to the Coastal Regulation Zone management. The NCZMA was also expected to put in place General Planning Guidelines, against which the SCZMAs and UTCZMAs could examine project proposals to be located in the CRZ.

NCZMA • In the NCZMA’s meetings, which are the matters concerning coastal regulation that have been discussed the most? • On examination of the minutes of the meetings of the NCZMA, it has been observed that during the NCZMA meetings, the cases referred to it by the SCZMAs have been discussed most frequently

Project approval ? Do matters concerning project approvals reach the NCZMA? If yes, how? As per the CRZ Notification, 2011, matters pertaining to project approvals do not reach the NCZMA. However, in practice, the NCZMA discusses individual project proposals on rare occasions

Fund Who is responsible for arranging finances and other resources for the NCZMA? Neither the CRZ Notification, nor the constitution orders issued by the MoEF say anything about the availability of funds, staff, infrastructure or any other resources for the NCZMA. In an interview response,5 V. Vivekanandan, Ex-Member, NCZMA, highlighted that the NCZMA has always faced resource crunch in terms of staff, infrastructure and funds, especially due to its part-time nature. He said, “It (NCZMA) is not really an independent body... It is an authority, but it is functioning like a committee. There is nobody fully responsible for it.”

SCZMA Is there a desired composition of the SCZMAs? If yes, who sets it? Yes, there is a desired composition of the SCZMAs. Details procured through a Right to Information (RTI) application, as part of this study, highlight that the composition of the SCZMAs was decided in a meeting of the NCZMA held on December 15, 2004. As per the decision, “The composition of SCZMAs should include 1 NGO (by name), 4 experts (by name) and 5-6 ex-officio members from the various Departments

How are the members of the SCZMAs selected? The composition, as decided in the NCZMA meeting held on December 15, 2004, was communicated by the MoEF to all the SCZMAs in its correspondence of March 31, 2005. Based on this, the state governments shortlist the members and forward the list to the MoEF. This was corroborated by the SCZMA members who were interviewed in 2012

Functions of SCZMA SCZMAs are to ensure the implementation of the provisions of the CRZ Notification.

ICZMP and strengthening of the SCZMAs The Integrated Coastal Zone Management Project (ICZMP) has been designed and implemented in three states (Gujarat, Odisha and West Bengal) as a pilot by the MoEF in collaboration with and financial support from the World Bank. The ICZMP has been proposed as an integrated approach to coordinate the activities of various government agencies and departments for the sustainable management and use of coastal resources while conserving the natural environment.

One of the goals of the project has been to strengthen the state level institutions i.e., to ensure functional and effective SCZMAs in the three states

District Level Coastal Committee What does the CRZ Notification say on the constitution of DLCCs? Clause 6 (c) of the CRZ Notification, 2011, states that the State and Union Territory CZMAs can constitute DLCCs, to ‘assist’ them in the task of ‘enforcing and monitoring’ the Notification. The clause also states that the DLCCs should be chaired by the concerned District Magistrate, and have at least three representatives from the local traditional coastal communities. The CRZ Notification, 1991, did not have the provision for the constitution of such committees

Role of DLCC Role of DLCCs- to assist or to take decisions? The role of the DLCCs in the CRZ implementation is not completely defined under the CRZ Notification, 2011. This lends opportunity for the SCZMAs to utilise the space and to expand their role in decision-making. This can help remove numerous tasks off the SCZMAs’ plate as well as help them take better informed decisions

National Green Tribunal Basics

Objective Discuss the main principles on which National Green Tribunal functions including the principle of sustainable development, the precautionary principle and polluter pays principle

National Green Tribunal Background : United Nations Conference on the Human Environment which met at Stockholm from 6 to 16 June, 1972 United Nations Conference on Environment and Development conducted at Rio de Janeiro from 3 to th 14 June, 1992

From the Above Conference The principles enunciated and accepted by the participating States in the International Conferences include the sustainable development and higher quality of human life and directions to the States of the world to make suitable environment legislation with effective access to the peoples to judicial and administrative proceedings including redressal of remedies.

International treaty and Internal Law • Entry 17 under List II of Seventh Schedule provides that "Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List I". • apart from maintenance of public health and sanitation which is again incorporated as item no. 6 of the same list with the result, under Constitutional concept of separation of powers, it is the eminent domain of the State Legislature

56 of List I (Union List) of Schedule VII of the Constitution of India • regulation and development of interstate rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest”, • That Means • This means that if Parliament considers it “expedient in the public interest” that the “regulation and development” of an inter-State river, say the Ganga or Yamuna or Narmada, should be “under the control of the Union”, it can enact a law to that effect, and that law will give the Union legislative (and therefore executive) powers over that river.

Cont.….. • That enabling provision has not been used by Parliament. • No law has been passed bringing any river under the control of the Union. • Check – River Board Act 1956 – River Board for Inter-state River Basins

Article 252 - rescue • AND WHEREAS in pursuance of clause (1) of article 252 of the Constitution resolutions have been passed by all the Houses of the Legislatures of the States of Assam, Bihar, Gujrat, Haryana, Himachal Pradesh, Jammu and Kashmir, Karnataka, Kerala, Madhya Pradesh, Rajasthan, Tripura and West Bengal to the effect that the matters aforesaid should be regulated in those States by Parliament by law; • BE it enacted by Parliament in the Twenty-fifth Year of the Republic of India as follows:-

Central law namely, Water (Prevention and Control of Pollution) Act, 1974 to provide for the prevention and control of water pollution and maintaining or restoring of wholesomeness of water, to establish Boards (Central Pollution Control Board and State Pollution Control Board ) for prevention and control of water pollution and for conferring on such Boards various powers and function 1977 Amendment – Water (prevention and Control of Pollution) Cess Act – Financial Augument

Against the orders of the Board, the Act provides for an appeal to the Appellate Authority to be constituted by the State or revision to State Government.

Environmental Justice