33 Judicial Approaches towards EIA

Tarun Arora

1. Introduction
2. EIA: Need of the Hour
3. Significance of EIA
4. References of important recognitions to EIA
5. EIA and Sustainable Development
6. EIA and Precautionary Principle
7.  Judicial Exposition of EIA Conclusion

1.  Introduction

Environment Impact Assessment (EIA) plays a significant role in decision making process within environmental governance. It is a mechanism to ascertain the consequence of various activities on the environment with a view to avoid or diminish the adverse impact. The capability to foresee the probable outcomes of the proposed project or activity is an important tool of modern decision making process.1 The notion underlying the concept of EIA is to make attempts with the participation of stakeholders to predict the quantum of effect, damages in terms of social and environmental risk posed by proposed projects and to propose the suggestive measure for mitigation.2 Primary purpose of EIA is to conceptualize the probable risk and dimensions of the proposed project. Another dimension of the EIA is referred as ‘stakes’ implying not only the probability of a future event but rather the implications of the event. ‘Probability’ and ‘stakes’ are two important aspects in decision making process which significantly influence decisions in making. The decision makers strive to strike the balance between the needs of development and considerations of ecological preservation. From the idea of establishing any project – whether industrial or development till the operation of the project, impact assessment of the project on the environment strongly influence the decision making process. Endorsing the same approach, John E. Bonine observed that EIA is a process for sustainable development and avoidance of costly mistakes, moved one step closer to international acceptance… of the norms of United Nations Environment Programme (UNEP). Referring the beginning of international movement to initiate EIA of planned activities, he highlighted that the Working Group of Experts on Environmental Law3 recommended to the Governing Council of UNEP4 to consider the introduction of EIA under the international law and policy. Due attention was paid through this meeting to draft a document, more useful for developing countries, to have a reasonable, cost effective tool for avoiding environmental problems that can set back the cause of development.5 Thus, the EIA involves ‘a study of the probable changes in the various socio-economic and biophysical characteristics of the environment which may result from a proposed …action’.6 It is done at stage where serious environmental damage may be avoided or minimized. Indeed, the process should integrate ‘environmental with economic and social understanding at the very beginning of the design process.7 Although, it is very difficult or even impossible8 to predict accurately the responses of ecological systems even to known technologies, a complete EIA should attempt to do the following:

1.      Describe and analyze the proposal;

2.      Inventory the natural and human environments and interest affected by them;

3.      Predict the environmental effects, including direct, indirect and cumulative effects both on the site and on the region, giving irreversible effects and commitments and identifying who gains and losses;

4.      Evaluate both the magnitude and importance of those effects;

5.      Describe and evaluate possible mitigative measures;

6.      Described alternatives both the project (including the do-nothing alternative) and to the proposed means of carrying it out;

7.      Present the results of the analysis in any integrated format that helps decision makers.

8.      Provide for ongoing monitoring of impacts and of the success of mitigative measures;

9.      Specify procedures for abandonment of the project at the end of its economic life.9

Hence, it is clear that EIA consists a consideration of impacts in four phases of a project-design, construction, operation and abandonment- and emphasizes ongoing mitigation and monitoring.10 The purpose of EIA is to take into account the environmental effects of the activities to be undertaken and it was recommended to promote develop national mechanism to achieve the above purpose.

Against this backdrop, the instant chapter aims to elaborate the approach of the Supreme Court of India towards EIA with the purpose to examine:

i. Has the Supreme Court responded to the challenges posed by development activities?

ii. Has the Supreme Court ever interfered in the technical domain under the veil of judicial review?

iii. Did the Supreme Court support integration of environmental considerations in development planning and endeavors?

iv.   What is the approach of the Supreme Court towards EIA?

2.        EIA: Need of the Hour

Realizing EIA as a mechanism to respond to the calls for development and protection of environment simultaneously, the Supreme Court in S. Jagannath v. Union of India and Ors11 directed the Central Government to constitute a high powered authority under Section 3 (3) of Environment (Protection) Act, 1986 to conduct a strict environmental test. Before the grant of establishment of any commercial shrimp farm, shrimp industry or shrimp pond, each case has to be scrutinized by the said authority and there must be environmental impact assessment. It was cautioned by the court that the conceptual framework of the assessment must be broad based primarily concerning environmental degradation linked with shrimp farming. Not only the environment impact assessment but social impact on different population strata in the area should also be assessed. The Court gave more emphatically pressed on the need to carry out analytical assessment with the use of super technology and take care of inter-generation equity and the compensation for those who are affected and prejudiced.

3. Significance of EIA

The importance of EIA and its relation with the sustainable development was elaborated comprehensively by the Supreme Court in K.M.Chinnappa and T.N. Godavaraman Thirumalpad v. Union of India and Ors12. The question involved in the present matter was, to continue or not, the permission of mining activities in Kudremukh National Park declared as a national park under Section 35 (1) of the Act. In fact, the petitioner challenged the continuing removal of certain trees by Kudremukh Iron Ore Co. Ltd. (KIOCL) despite of the order dated 14.2.2000 issuing injunction to stop cutting trees from national parks, games sanctuaries and forests. The reliefs sought were:

(a)    Issue direction to withdraw the illegal ‘temporary working permission’ issued by it and stop mining activities;

(b)   Direct KIOCL to stop polluting the Bhadra river due to open cast mining;

(c)    Take action against KIOCL for illegal encroachment in the forests and for destruction of forests in the Kudremukh National Park; and

(d)   To stop KIOCL from laying new slurry pipe line in the forests of the National Park.

The respondent contended that there was no violation of any law relating to forests and environment. It further submitted that land in question was outside the purview of the operations of the Act- Conservation Act and Environment Act. The company has been taking all possible steps to preserve and conserve nature in its pristine glory. Its eco-friendly activities are visible and reflect that a vast sum of money has been spent for preservation of nature and environment in addition to efforts to prevent pollution. The company received several awards for its tremendous achievements in the field of environmental protection. At the time of incorporation of the company, EIA was conducted and detailed guidelines were formulated to ensure least degradation of the environment.t In view of foregoing, the Company prayed to grant the permission for mining for 20 years.

The matter was referred to the Central Empowered Committee (CEC) constituted under Section 3 of the Environment (Protection) Act, 1986. The Committee recommended to permit mining operations for a period of five years or on the exhaustion of the oxidized weather secondary ore, whichever is earlier, in the already dig area. It further recommended to treat this period of five years as winding period and the operation of the activities shall be subject to the conditions of rehabilitation and reclamation, a proper eco-restoration plan prepared and to be executed at the cost to be borne by KIOCOL, a monetary compensation of Rs. 25 crores@   5 crores per year. The Committee recommended that this fund shall be utilized for the purpose of research, monitoring and strengthening protection of the Kudremukh National Park and other protected areas in the State of Karnataka. It was also submitted that monitoring committee shall monitor the implementation of the rehabilitation plan and after the completion of winding up operations, the KIOCL will transfer all the buildings and other infrastructure to the Forest Department of the State of Karnataka on book value. However, one of the Members of the Committee gave a dissenting note to above recommendation and made separate recommendation advocating immediately stoppage of mining operations and the five years period should be treated as ‘Restoration and Winding up Period’ wherein the company should be directed to restore all mined lands, plan indigenous species and protect the region and give back to one of the world’s finest forests what has been taken from it, on the cost to be borne by the company.

While examining the documents presented before the Court, it came across a recommendation of the Government of Karnatka to go for EIA and conduct the study on impact of mining on flora and fauna by Environmental Research Institute, Nehruagar (Maharashtra) and Wild Life Institute, Dehradun (Uttar Pradesh). The recommendation of the State Government to allow the mining was subject to the findings of these studies.

Irony of the matter is that the recommendations of the government were not considered properly while granting the permission to continue mining operation and suggested EIA were not carried out.

While rejecting the prayer of the Company to grant permission for mining for 20 years, it declined and accorded approval to continue the activity for the period of 5 years as recommended by Forest Advisory Committee. Stating the reasons for grant of permission for 5 years, it highlighted that the Forest Advisory Committee was a committee constituted under the Conservation Act. Therefore, the court permitted that area already broken should be exhausted subject to the fulfillment of the recommendations made by the Committee on ecological and other aspects. However, the Court put on the record the inconsistent approach of the State and the Central Government in context of the period for permission to carry on the activities. But it does not mention about the failure of the State Government to adhere to its own recommendation of conducting EIA. The Court should have taken the failure of the State to conduct EIA seriously and fix the responsibility of failure.

However, there were some important observations made by the Court worth referring here for underlining the approach of the Supreme Court towards EIA, its significance, sustainable development and environment protection.

4. References of important recognitions to EIA

1. The directive of Council on European Economic Committee highlighting the objective of EIA as, ‘the effect of a project on the environment must be assessed in order to take actions of the concerns to protect human health, to contribute by means of a better environment to the quality of life, to ensure maintenance of the diversity of species and to maintain the reproductive capacity of the eco system as a basic resource of life’.

2.  The Preamble to the Convention on Biological Diversity, 1992 underscoring the importance of EIA and its relation to bio-diversity. To quote:

Concerned that biological diversity is being significantly reduced by certain human activities. Aware of the general lack of information and knowledge regarding biological diversity and of the urgent need to develop scientific, technical and institutional capacities to provide the basic understanding upon which to plan and implement appropriate measures. Noting that it is vital to anticipate, prevent and attack the causes of significant reduction or loss of biological diversity at source. Noting further that the fundamental requirement for the conservation of biological diversity is the in-situ conservation of ecosystems and natural habitats and the maintenance and recovery of viable populations of species in their natural surroundings.

3.      Reference of Article 1 – urging the State parties to take into account all rights over the resources and technologies, Article 6- obliging the contracting parties to devise national strategies, plans or programmes for the conservation and sustainable use of biological diversity; and integrate the conservation and sustainable use of biological diversity into relevant sectoral or cross sectoral plants, programmes and policies, Article 7- identify components of biological diversity important for its conservation and sustainable use, monitoring through sampling and other techniques, identify processes and categories of activities having adverse impacts on the conservation and sustainable use of biodiversity and monitor their effects through sampling and other techniques and Article 14

(a)- introducing appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects was made by the Court to elaborate the relevance of EIA in modern times.

5.        EIA and Sustainable Development

Sustainable development was viewed, by the court, as a policy and strategy for continued economic and social development without detriment to the environment and natural resources on the quality of which continued activity and further development depends. The Court opined that there is need to look at the ability of the future to meet is own needs and requirements, in addition to the needs of present while determining the issues concerning development. Requirements of future cannot be ignored under the garb of present. To quote:

We owe a duty to future generations and for a bright today, bleak tomorrow cannot be countenanced. We must learn from our experiences of past to make both the present and the future brighter. We learn from our experiences, mistakes from the past, so that they can be rectified for a better present and the future. It cannot be lost sight of that while today is yesterday’ tomorrow, it is tomorrow’s yesterday.

6.        EIA and Precautionary Principle

Highlighting the significance of the concept of sustainable development and the precautionary principle, the court observed that it is duty of the Government under Article 21 of the Constitution to protect the environment. Besides, the Court reminded that protection and improvement of environment is a constitutional mandate. It is a commitment for a country wedded to the ideas of a welfare state. The world is under an impenetrable cloud. Every individual in the society has a duty to protect the nature. Referring further the World Charter for Nature adopted by UN General Assembly, Kautilya Arthshashtra, Manu VIII- the Court expressed its concern over the exploitation of natural resources. To quote:

The tragedy of predicament of the civilized man is that ‘every source from which man has increased his power on earth has been used to diminish the prospects of his successors. All his progress is being made at the expense of damage to the environment which he cannot repair and cannot foresee’.

Taking note of the fact that nature hates monopolies, and knows no exception, the Court reiterated that in developing countries, most of the problems are caused by underdevelopments. Therefore, the environmental deterioration is an outcome industrialization, urbanization, explosion of population, over-exploitation of resources, depletion of traditional sources of energy and raw materials, and the search for new sources of energy and raw materials, the disruption of natural ecological balances, the destruction of multitude of animal and plant species for economic reasons. To deal with these challenges, environmental law have been enacted, remodeled and reshaped.

7. Judicial Exposition of EIA

Following the same footprints laid down in K.M.Chinnappa’s case, the Supreme Court in N.D. Jayal and Anr. v. Union of India13 observed that concept of sustainable development implies taking care of adverse impacts of the proposed project by applying precautionary principle and mitigating steps to preserve the ecological balance. Sustainable development is a guarantee to the present and bequeath to the future.14

The right to development cannot be treated as a mere right to economic better or cannot be limited to as a misnomer to simple construction activities. It encompasses much more than economic well-being, includes within its definition the guarantee of fundamental human rights. Therefore, the concept of sustainable development is a sine qua non for the maintenance of the symbiotic balance between the rights to environment and development. Right to environment is a fundamental right. On the other hand, right to development is also one. The Court held that execution of river valley projects is an important element of growth and development strategy. The dams have become symbol of national development. The dams too have potentials of solving many economic problems. Control of floods, famines, food shortages, unemployment, urban water shortages and the power shortages are all possible with the help of execution of such dams. The projects do have benefits but they have adverse environmental implications. Nonetheless, there are few negative aspects also which has to be counter balanced or compensated by anticipating the probable adverse consequences such as dislocation, rehabilitation of the natives, devastate and loss to the properties of the people downstream, and so on. Besides, it was also argued that the structure of the dam is not safe and its existence increases the seismic vulnerability of the entire Himalayan region. In this regard, the government of India submitted that government started the work only after satisfying itself on the safety of dam. It also referred the report of the EIA Committee recommending that the construction of dam is safe.

On the issue of safety aspects, the Court followed its approach of judicial restraint as laid down in Tehri Bandh Virodhi Sangarsh Samiti v. State of U.P.15 wherein the government testified the security of the dam. The Court restricted itself in this matter by holding that the government cannot be advised to go for 3D Non-Linear Test or Dam Break Analysis unless the decision of the government appears malafide, arbitrariness, or irrational. Of the government desires, it is at liberty to abandon the project. Relying on the approach of the government being accountable to the people, the Court decided not to question the safety aspect without a reasonable cause when EIA Committee has already gave green signal. In scientific matters of complex nature resulting in uncertainty, reference has to be made to a specialized technical or expert body and not merely decide the matter on well-known principle.16

The underlying approach of the Court behind declining the prayer of the petitioner to question the legitimacy of its decision to permit construction of dam, it observed that the court cannot sit in judgment over the cutting edge of scientific analysis relating to the safety of any project. Experts in science may themselves differ in their opinions while taking decisions on matters related to safety and allied aspects. Where the Government has taken a decisions after due consideration of all viewpoints and full application of mind, then it is not appropriate for the court to interfere such matters must be left to the mature wisdom of the government or the implementing agency.17

To evaluate the impact of mining on environment, ground water, residential areas, minor mineral, the Supreme Court in M.C.Mehta v. Union of India and Ors18. directed Haryana Pollution Control Board (HPCB) to inspect and ascertain the impact of mining operation on Badkal Lake and Surajkund within the State of Haryana. The Court in this case relying upon the report of NEERI, FCPCA and CEC held that mining in the area to be stopped in interest of environmental protection, pollution control and tourism development as continuation of mining may cast serious impact on local ecology. Thus, it directed the HPCB to enforce all recommendations of NEERI to stop mining operations within 2 kms. It further directed the State Government not to renew the mining leases without prior no objection certificate. Besides, the Court issued directions to the State Government to appoint a Monitoring Committee to evaluate the effect of mining of mines in question and submit its report in 3 months. Subsequently in other M.C. Mehta v. Union of India and Ors19 the court held that risk of harm to the environment or to human health is to be decided in public interest, according to ‘reasonable person’s test’. It has been further observed that for carrying on any mining activity close to the township which has tendency to degrade environment and is likely to affect air, water and soil and impair the quality of life of inhabitants of the area, there would be greater responsibility on the part of the entrepreneur. In such cases, the duty to act with utmost care in ensuring compliance of safeguards, norms and standards lies with the regulatory authorities. The activities degrading the environment or minimizing the adverse effects thereupon should be permitted subject to the compliance with requisite safeguards. To investigate the gravity of the problem, the Supreme Court directed the monitoring committee constituted in previous case to inspect the mining activity in Faridabad district and report impact of mining activity on environment and suggestions related to minimize the impact on environment within 3 months. 

Subsequently in the case of Lafarge Umiam Mining Private Ltd. v. Union of India20 the Central Government was directed by the Court appoint a National Regulator for appraising projects, enforcing environmental conditions for approval and to impose penalty on polluters. Issuing order for demolition of constructed restaurant, the Supreme Court that the sanction granted by Department of Tourism in Association for Environment Protection v. State of Kerala and Ors.21 as it violated the order of the Government regarding evaluation of a project by the Environmental Planning and Co-ordination Committee for review and assessment of environmental implications. Taking the note of mushroom growth of hydroelectric project in Uttarakhand and their impact on Alannanda and Bhagirathi river basins, the Court in Alaknanda Hydro Power Company Ltd. v. Anuj Joshi and Ors.22 found that Cumulative Impact Assessment of Hydropower Projects has not been properly carried out. Therefore, it directed the Ministry of Environment and Forests and the State of Uttarakhand not to grant any further environmental clearance or forest clearance for any hydroelectric power project in the State till further orders. Further it directed the MoEF to constitute an Expert Body consisting of the representatives of State Government, Central Electricity Authority, Central Water Commission and other expert bodies to conduct a detailed study as to whether Hydroelectric Power Projects existing and under construction have contributed to the environmental degradation, if so, to what extent and also whether it has laid any impact on biodiversity of river basins.

In 2017, (just two days ahead of Diwali) the Full Bench of the Supreme Court in Arjun Gopal and Ors. v. Union of India and Ors.23 ordered to suspend the licenses for sale of crackers to avoid adverse effect of burning of crackers during Diwali. It took note of the fact that due to crackers burned every year, the air quality deteriorates abysmally and alarmingly and the city chokes thereby. It further results into closing the schools and the authorities were compelled in previous years to take various measures on emergent basis, when faced with health emergency situation. In view of the impact of burning crackers on environment and its socio-economic burden, the Supreme Court suspended the licenses issued by the police for the sale of crackers and directed that further order for the permission would be given only after impact assessment.

The Secretary, Kerala State Coastal Management Authority v. DLF Universal Limited and Ors.24 the Supreme Court affirmed the penalty of Rs. 1 crore for violation of the norms and constructing the building without the environmental clearance by the State Environment Impact Assessment Authority and also directed for strict adherence to the norms in future and avoidance of such contradictions by the authorities. Signifying the importance of EIA, the Supreme Court in The Goa Foundation v. Sesa Sterlite Ltd. and Ors.25 expressed its concern over the rapacious and rampant exploitation of natural resources The mining sector has shown its lack of concern for environment, health and well-being of the denizens in the vicinity of the mines. Leaseholders of mines have their attitude of making profit and placing rule of law on backburner. Condemning the approach of the State government in failing to act against violation of law and other illegalities with the purpose of maximizing revenue, the Court expressed its anguish on poor and ineffective implementation of mining and environmental laws. Directing for the strict vigilance, proper implementation of laws to avoid being moot spectators to the plundering of natural resources, the Supreme Court observed as under:

We must emphasize that issues impacting society are required to be looked at holistically and not in a disaggregated manner. An overall perspective is necessary on such issues including issues that impact on the environment and the people of a community or a region or the state.

In this way, the Supreme Court gave weight to carrying out proper impact analysis of the activities proposed by the proponents. Adopting philanthropic approach, it shared that it is indispensable to conduct thorough impact assessment. Failure in doing so may turn everyone as loser, no one will be a real beneficiary. Pointing out the relation between Mineral Policy, Mining Lease Policy, other Regulations and Constitutional law, the Court observed as under:

…..the Mineral Policy, the Grant of Mining Leases Policy, the amendment to MMDR Act, the report of the EAC and the report of the Expert Committee must be considered in the larger context of constitutionalism, the Rule of law, environmental jurisprudence as well as the fundamental right of the people of Goa to have clean air and protection of the fragile ecology. Governance cannot and should not be carried out de hors the interests of the people and some uncomfortable decisions may be inevitable for balancing the equities.

Conclusion

In the view of foregoing discussion, it can be submitted that the Supreme Court has responded adequately to the need of the hour by construing EIA as a part of sustainable development and constitutionalism. Replying to the seminal questions arose before it – ‘dollar friendly or eco- friendly?’, it construed EIA as a means of ensuring and guaranteeing the right to life covering right to clean and healthy environment. It censured the failure in proper implementation of EIA, the award of penalty of Rs. One Crore in DLF’s case, banning the sale of crackers in Arjun Gopal’s case reflect the approach of the Supreme Court to promote Rule of Law and Good Environmental Governance. Whereas in K.M.Chinappa’s case, the Court referred, a warning given by great German materialist philosopher:

Let us not, however, flatter ourselves over much on account of our human victories over nature. For each such victory nature takes its revenge on us. Each victory, it is true, in the first place brings about the results we expected, but in the second and third places it has quite different, unforeseen effects which only too often cancel the first.

Following dictum of Ayn Rand (a novelist and philosopher) referred by the Supreme Court in recent Goa Foundation’s matter can be underlined to sensitize the present as well as future generations:

We can evade reality, but we cannot evade the consequences of evading reality.

References

• Farouk Muslim, ‘Environmental Impact Assessment’, 69-77 Environment Policy and the Law (11) 1983.
• P.S.Elder, ‘Environmental Impact Assessment in Alberta’, 286-309, Alberta Law Review, (XXIII) 2, 1985.
• Working Group of Experts on Environment Law Meeting, 12-16 January, 1987, Geneva. UNEP/WG-152/4.
• John E. Bonine, ‘Environment Impact Assessment- Principles Developed’, 5 Environmental Policy and Law, (17/1) 1987.
• R.K. Jain et. al, Environment Impact Analysis 3 (1977).
• C.S.Holling (ed.), Adaptive Environmental Assessment and Management 3-4 (1980).
• W.E.Rees, ‘Environmental Assessment and the Planning Process in Canada’, Environmental Assessment in Australia and Canada, 3 (1982).
• P.S.Elder, Environmental Impact Assessment in Alberta, 23 Alta L. Rev. 286 (1985).
• I. Mckay, Environmental Information in the Energy Resource Industry Calgary, Faculty of Environmental Design, University of Calgary (unpublished) 12-14 (1983).
• AIR 1997 SC 811.
• AIR 2003 SC 724.
• 2003 (7) SCALE 54.
• Vellore Citizens Welfare Forum v. Union of India Manu/SC/0686/1996.
• Manu/SC/0540/1992; see also State of M.P. and Another v. Medha Patkar and Ors AIR 2011 SC 3827.
• A.P. Pollution Control Board v. Prof. M.V. Nayudu (Retd.) and Ors. Manu/SC/0032/1999.see also G.Sundarrajan v. Union of India and Ors. (2013) 6 SCC 620; Electrotherm (India) Ltd. v. Patel Vipul Kumar Ramji Bhai and Ors. AIR 2016 SC 3563.
• AIR 2004 SC 4016.
• (2006)1 SCC 582.
• AIR 2011 SC 2781.
• AIR 2013 SC 2500.
• (2014) 1 SCC 769.
• 2017 (9) SCJ 164.
• Manu/SC/0011/2018.
• Manu/SC/0087/2018.