NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

International Environmental Law

Reviewing the Environmental Impact Assessment:

From Earth Summit 92 to Rio +20 and Implications in India

Submitted to

Prof (Dr) Rajiv Kumar Khare

Submitted by

Kunal Sharma

2013 BALLB 63
 Acknowledgment
I would like to express my gratitude to all those who helped and guided me in making this
project. First of all, I am really grateful to Professor (Dr.) Rajeev Khare who gave me an
opportunity to work on the chosen topic and gave me his valuable guidance and inputs. Also, I
would like to thank my friends who supported me throughout the project.

Kunal Sharma

2013 BALLB 63
Contents
Introduction ..................................................................................................................................... 4
Objective ......................................................................................................................................... 4
Environmental Impact Assessment ................................................................................................. 5
EIA in International Environmental Law context ........................................................................... 5
Convention on Environmental Impact Assessment in a Trans-boundary Context, 1991 ........... 5
Rio Declaration (1992) ............................................................................................................... 5
UN Convention on Climate Change and Biological Diversity (1992) ....................................... 6
Doha Ministerial Declaration (2001) .......................................................................................... 6
Mapping the development of EIA: From Rio and back to Rio (1992 to 2012) .............................. 7
Rio 92 Conference: .................................................................................................................... 7
Development of environmental impact assessment 1992-2012.................................................. 9
The Rio+20 preparatory process and its outcomes: Implications for EIA................................ 11
Impact assessment in the transition to a greener economy and the way ahead in International Law
....................................................................................................................................................... 14
Evolution of EIA in India ............................................................................................................. 15
Legislative Development of EIA in India ..................................................................................... 16
Procedure of EIA in India ............................................................................................................. 18
Judicial Decisions relating to EIA ................................................................................................ 20
Criticism........................................................................................................................................ 21
Bibliography ................................................................................................................................. 23
Introduction

The United Nations Conference on Environment and Development (also known as Rio 92 or
Earth Summit) was a landmark gathering concerning the international consolidation and
acknowledgement of environmental impact assessment (EIA) as a universal approach to inform
and influence decision-making on crucial socio-environmental matters. Enforced by legislation
in 191 countries adopted by donors of international development projects, by multilateral banks
and by a growing number of private financial institutions, EIA has been accepted as a solid
decision support process.

However, the aspect of internalization and implementation of the tool which was proposed
almost 25 years ago is also a vital indicator of how far we have come from the Earth summit.
The paper starts by explaining briefly the concept of EIA in International law context and
highlighting the most significant references to EIA in the main documents resulting from the Rio
92 Conference. Then are discussed, a few key developments in the Impact Assessment field that
took place after the Earth Summit, in particular the diffusion of strategic environmental
assessment (SEA). This is followed by a section discussing the outcome of the Rio +20
conference and the way ahead.

Objective

This paper is aimed to map the development of the tool of EIA from the Rio summit of 1992 to
the recent summit in 2012 and address what we understand to be a major flaw a key gap in the
Rio+20 process and its outcome document.

The second part of this paper shall comment on the internalization of EIA in India and critically
analyse the same.
Environmental Impact Assessment
Environmental Impact Assessment (EIA) can broadly be defined as a study of the effects of a
proposed project, plan or program on the environment. The legal, methodological and procedural
foundations of EIA were established in 1970 by the enactment of the National Environmental
Policy Act (NEPA) in the USA in 1970.

It entails the assessment of the environmental consequences (positive and negative) of a plan,
policy, program, or actual projects prior to the decision to move forward with the proposed
action. In this context, the term "environmental impact assessment" (EIA) is usually used when
applied to actual projects by individuals or companies and the term "strategic environmental
assessment" (SEA) applies to policies, plans and programmes most often proposed by organs of
state.1 Environmental assessments may be governed by rules of administrative
procedure regarding public participation and documentation of decision making, and may be
subject to judicial review.

EIA in International Environmental Law context

EIA has been an inclusion in various multi-lateral treaties ranging back to 1991, the important
instruments in which EIA has been referred to are listed as under:

Convention on Environmental Impact Assessment in a Trans-boundary Context, 1991

This is the first multi-lateral EIA treaty. It looks at EIA in a trans-boundary context and entered
into force in 1997. The Espoo Convention sets out the obligations of Parties to assess the
environmental impact of certain activities at an early stage of planning. It also lays down the
general obligation of states to notify and consult each other on all major projects under
consideration that are likely to have a significant adverse environmental impact across borders.
Apart from stipulating responsibility of signatory countries with regards to proposals that have
transboundary impacts, it describes the principles, provisions, procedures to be followed and list
of activities, contents of documentation and criteria of significance that apply.

Rio Declaration (1992)

Principle 17 of Rio Declaration on Environment and Development calls for use of EIA as a
national decision making instrument to be used in assessing whether proposed activities are
likely to have significant adverse impact on the environment. It also emphasized the role of
competent national authority in the decision making process. The other principle (15) of this
declaration that is relevant to EIA practice is the application of the precautionary principle.

1
Eccleston, Charles H. (2011). Environmental Impact Assessment: A Guide to Best Professional Practices
Agenda 21, which was also part of this summit, sets the framework within which countries can
establish their national environmental laws.

UN Convention on Climate Change and Biological Diversity (1992)

The Convention on climate change cited EIA as an implementing mechanism of these

conventions (article 4 and 14 respectively).

Doha Ministerial Declaration (2001)

These ministerial declarations of 2001 were made with the objective of encouraging countries to
share expertise and experience with members wishing to perform environmental reviews at the
national level.
Mapping the development of EIA: From Rio and back to Rio (1992 to 2012)

Rio 92 Conference:

The Rio 92 Conference stimulated national governments, international organizations, and the
business sector to acknowledge the role of impact assessment in the quest for sustainable
development. In the run-up period, a number of countries have reviewed or established their
national environmental protection legislation to include provisions for EIA. The Conference has
resulted in three documents very important for the consolidation of EIA:

(1) Principle 17 of the Rio Declaration on Environment and Development states: 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.

(2) Article 14 of the Convention on Biological Diversity, titled Impact Assessment and
Minimizing Adverse Impacts, establishes that:

Each Contracting Party, as far as possible and as appropriate, shall: (a) Introduce 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 and, where appropriate, allow for public participation in such procedures; (b)
Introduce appropriate arrangements to ensure that the environmental consequences of its
programs and policies that are likely to have significant adverse impacts on biological diversity
are duly taken into account;

(3) Agenda 21 refers to EIA in several different chapters.

A fourth document that arose from the Rio Conference, the United Nations Framework
Convention on Climate Change, does mention impact assessment, but not at the same level of
prominence as the other three documents. Under Article 4.1.f, Commitments, this Convention
calls parties to take climate change considerations into account, to the extent feasible, in their
relevant social, economic and environmental policies and actions, and employ appropriate
methods, for example impact assessments, formulated and determined nationally, with a view to
minimizing adverse effects on the economy, on public health and on the quality of the
environment, of projects or measures undertaken by them to mitigate or adapt to climate change.

Also, the Rio 92 Conference created a momentum that inspired other governmental,
intergovernmental, nongovernmental, and business initiatives. The World Bank first adopted its
policy on environmental assessment in 1989 and updated it in September 1991. The United
Nations Economic Commission on Europe and member states adopted, also in 1991, a
Convention on Environmental Impact Assessment in a Transboundary Context, known as the
Espoo Convention. This UN organization also promoted the Aarhus Convention on Access to
Information, Public Participation in Decision-Making and Access to Justice in Environmental
Matters, which came into force in 1998. The World Business Council for Sustainable
Development, which was founded on the eve of the Rio Conference "to ensure the business voice
was heard at the forum", as one of its first initiatives, publishing in 1996 the brochure
"Environmental Assessment: a Business Perspective" (WBCD, 1996).

In spite of this success story, it does have shortcomings. One flaw gap in the outcomes of the
original Rio Conference concerns the governance of global commons - the atmosphere, the
oceans and the poles. Human activities in the Antarctica are addressed by the Madrid Protocol to
the Antarctic Treaty, which entered into force in 1998, though its effectiveness remains unclear.

Another flaw is found in the Framework Convention on Climate Change, which does not
consider EIA as a tool for promoting reductions on the emissions of greenhouse gases but only as
a consideration in designing strategies of adaptation.

Foremost, no convention signed at the Rio Earth Summit or other international meeting fully
tackles the fundamental challenge put forward by the Brundtland Commission.2 The ability to
choose policy paths that are sustainable requires that the ecological dimensions of policy be
considered at the same time as the economic, trade, energy, agricultural, industrial and other
dimensions - in the same agendas and in the same national and international institutions. That is
the chief institutional challenge of the 1990s.

Unfortunately this challenge has not been met since 1992. The reasons why it happens will be
discussed below.

2
(WCED, 1987, p. 313)
Development of environmental impact assessment 1992-2012

The fact that EIA is legally required in most countries is an indicator of the concept's success and
utility (nonetheless its potential lack of effectiveness). EIA has been evolving after the Earth
Summit. New countries added legislation on the matter and others reviewed or updated their
previous legislation.

One significant development in impact assessment was its adoption by financial institutions. As
the World Bank pioneered the use and promotion of environmental assessment, other multilateral
development banks followed it and progressively approved their own policies and procedures
largely influenced by the experience. A refinement of this EIA approach had happened in the
World Bank Group, when the branch which specializes in financing private projects, the
International Finance Corporation (IFC) launched guidelines for the environmental and social
assessment of private sector projects in 2006 (updated in 2011). In addition, commercial banks
launched in 2003 the Equator Principles, a set of voluntary commitments by financial institutions
to systematically incorporate the results of environmental and social assessments into certain
types of credit decisions. Initially supported by ten banks, in June 2012 more than 70 private and
public banks as well as export credit agencies, supported the Equator Principles.

Another important phenomenon was the emergence and consolidation of strategic environmental
assessment (SEA). Defined as the assessment of policies, programs, and plans (PPPs), SEA has
been tuned into law in the European Union, in China and in a number of other countries and is
being applied by donors of international cooperation projects and programs. SEA has resulted in
a burgeoning literature in the last decade.

In the international arena, efforts to disseminate and provide the bases of SEA's implementation
are promoted by development agencies. A recent noteworthy initiative is supported by the
Development Assistance Committee (DAC) of the Organization for Economic Cooperation and
Development (OECD).

At the OECD DAC High Level meeting of 21 May, 2008, members adopted the Policy
Statement on Strategic Environmental Assessment (SEA). DAC recognizes that poor people
suffer more than everyone when policies, plans, or programs are poorly designed and
implemented. Such suffering is compounded by the risks posed by environmental degradation
and climate change. The inability of central government planning normally amplifies the
vulnerabilities imposed on the poor due to existing environmental conditions. The quality of
development planning will be affected significantly unless careful attention is to be given to the
relationship between policy development and the environment. The achievement of the
Millennium Development Goals (MDG) as well as the yet uncertain Sustainable Development
Goals (SDG) can also be compromised if the principles of sustainable development, through the
application of SEA, are not made part of the development policies and programs. Therefore, the
The SEA use in OECD member governments and partner countries has been growing since
development assistance is increasingly being provided at the level of policies, plans, and
programs, rather than through individual projects.

During the last ten years a growing number of developing countries have enacted policy,
legislation or regulations that dictate how SEA is to be used in development cooperation. The
publication of various OECD SEA instruments such as the SEA policy and guidance has
amplified the need for SEA in partner countries. However, it is the recent activity in the
extractive and energy sectors in development countries, which have created the need for applying
SEA. More developing countries blessed with natural resource realize that responsible and
sustainable natural resource management are capable of provide long term gains in social,
economic, and environmental issues for their respective societies through SEA's application.
SEA will also help developing countries to determine if policy and legislative gaps do exist in a
particular sector, or what kind of institutional capacity issues should be faced . SEA also builds
public support for policy making and can enable transboundary cooperation around shared
natural resources. Unique opportunities are now being created for improving policy, plan, and
program making by integrating environmental and related social considerations into the highest
levels of government decisions. This also provides new ways to reach consensus on development
priorities and mechanisms among various development stakeholder groups.

Finally, at same token important developments have occurred regarding public participation in
the IA process,. The Principle 10 of the Rio Declaration calls for enhanced public involvement in
environmental matters, including decision-making. It goes hand in hand with Principle 17, since
public participation is one of the pillars of IA and promoting access to information, one of its
goals.

According to Principle 10:

Environmental issues are best handled with the participation of all concerned citizens, at the
relevant level. At the national level, each individual shall have appropriate access to information
concerning the environment that is held by public authorities, including information on
hazardous materials and activities in their communities, and the opportunity to participate in
decision-making processes. States shall facilitate and encourage public awareness and
participation by making information widely available. Effective access to judicial and
administrative proceedings, including redress and remedy, shall be provided.

Principle 10 was applied by the UN Economic Commission for Europe in the design of the
Aarhus Convention on Access to Information, Public Participation in Decision-making and
Access to Justice in Environmental Matters, approved in 1998. Under this Convention, decision-
making ought is to be informed by environmental impact assessment which, in turn, needs to be
coupled with public consultation procedures.
The Rio+20 preparatory process and its outcomes: Implications for EIA

A first intergovernmental conference to assess progress since Rio 1992 was held by the United
Nations ten years after in Johannesburg. Although, another Conference ten years later was not
initially planned, Brazilian government advanced a proposal to the UN, to host a new Summit to
assess progress towards sustainable development. Accepted by the UN, the meeting was
named UN Conference on Sustainable Development (UNCSD). This marked an interesting shift
in terminology since the 1972 UN Conference on the Environment held in Stockholm -, which
was the first major intergovernmental gathering on environmental issues. Twenty years later, the
Rio Conference was labeled "Environment and Development". Then in 2012 the term
"environment" disappeared and instead of that the conference focus was on "sustainable
development".

Although intending to attract dozens of heads of state and several thousand participants, the
Conference goals were extremely ambiguous when compared to the 1992 Earth Summit. This is
not surprising since, to a large extent as a result of Rio 92, high-level intergovernmental
meetings on environmental issues multiplied enormously. Both the climate and the biological
diversity conventions engendered periodical official meetings or Conference of Parties (CoPs).
In these meetings negotiations take place to devise strategies or to agree on rules to their
respective objectives. The Kyoto Protocol, establishing greenhouse gases emissions targets, was
signed in one of those CoPs. The proliferation of CoPs and other sorts of environmentally-
oriented intergovernmental meetings is a post-Earth Summit trend and unknown as such in
international scale pre-1992. Therefore, Rio+20 could not expect to have a similar effect on the
international environment and sustainable development agenda as did the 1992 Conference.

Notwithstanding this context, many environmental stakeholders had high dreams. A strong
political commitment to the protection of the oceans and a new and strengthened global
environmental governance structure, including a higher status for the UN Environment Program
(UNEP), were among such expectations. Impact assessment scholars and practitioners also had
expectations that, in the final and official outcome document, the importance of EIA could be
reinforced and especially that SEA could be recognized as a tool for achieving sustainable
development or for supporting the transition to a green economy.

The International Association for Impact Assessment (IAIA), a nongovernmental organization

registered with the UN Economic and Social Council (Ecosoc) compounded by a network of
professionals and researches, submitted a short document stressing the role of impact assessment
as a contribution to the "compilation document" - an initial aggregation of submissions intended
to contribute to the Conference's outcome document. Some key considerations advanced by
IAIA about the role of impact assessment in general and strategic environmental assessment in
particular are:
 it helps to ensure that high level policies, programs, and projects are designed and implemented
with more sustainable outcomes while also reducing poverty and advancing green economy
objectives;

it helps to ensure that development activities of individual sectors complement each other
rather than undermine themselves by providing a systematic means for minimizing potential
adverse outcomes and maximizing benefits early in policy, program, and project design;

it can alert decision makers to risks, improve community engagement, incorporate traditional
knowledge, and facilitate cooperation across sectors and boundaries before strategic decisions
had been taken.

Governments and international organizations also supported impact assessment, including

Canada, Ghana, and the World Bank. However, by no means has SEA or IA in general been
recognized as such in the outcome document.

From an initial document, which gathered and assembled contributions from governments,
international organizations, and major civil groups, a draft document has evolved thought several
discussions. . In the Rio Convention Centre, more than 20,000 people - government delegations,
UN staff, major groups' representatives and journalists - met from the 15th to the 22nd of June,
2012. A special pavilion hosted side events promoted by governments and major groups, while
open and closed meetings took place in other rooms. Hundreds of side events were also
promoted by businesses, academia and civil society, including a "People's Summit for Social and
Environmental Justice" held at the very same place of the "Global Forum" in 1992, the civil
society meeting.

To many observers, especially from civil society organizations, the outcome of the Rio+20 was
disappointingly modest. The final declaration entitled "The Future We Want" - a 53 page long
document containing 283 paragraphs3 was considered by many a weak and uninspiring
document. Indeed, NGOs dubbed it as "The Future We Don't Want".4

Disagreement is found regarding many key issues, including "green economy" - a central
concept at this Conference. Not only is its meaning not widely agreed, but is its rationale not
shared by a number of CSOs5 and even among UN bodies, as exemplified by contrasting the
relatively optimistic view and proposals of UNEP (2011) with those advanced in UNRISD
(2012), which calls upon careful consideration of its social dimensions.

3
http://www.uncsd2012.org/thefuturewewant.html
4
http://rio20.net/en/documentos/the-future-we-don%E2%80%99t-want-some-thoughts-after-rio20
5
Bosselmann, Brown and Mackey, 2012
The Rio+20 outcome document repeats previous commitments, as in the example of paragraph
99: We encourage action at the regional, national, subnational and local levels to promote
access to information, public participation and access to justice in environmental matters, as
appropriate. This is a short version of Principle 10 of Rio Declaration. Other paragraphs sound
quite cynical, e.g. We reaffirm that climate change is one of the greatest challenges of our time,
and we express profound alarm that emissions of greenhouse gases continue to rise
globally (190), in face of the several decades of sustained unsuccessful attempts to reach an
agreement to curb greenhouse gases emissions

The outcome document has only one direct mention to impact assessment, under the "Oceans
and Seas" subsection (part of V. A. Thematic areas and cross-sectoral issues): We also commit to
enhance actions to protect vulnerable marine ecosystems from significant adverse impacts,
including through the effective use of impact assessments (paragraph 168). A related topic is the
recognition of the importance of technology assessment, under the "Means of Implementation"
section: We recognize the importance of strengthening international, regional and national
capacities in research and technology assessment, especially in view of the rapid development
and possible deployment of new technologies that may also have unintended negative impacts, in
particular on biodiversity and health, or other unforeseen consequences. (paragraph 275).

Although these paragraphs are a welcome reaffirmation of the importance and role of IA, they
are extremely timid both in scope and reach. In addition, the generic wording of these and other
paragraphs of the outcome document allows for multiple (though possibly contradictory)
interpretations that will have to be explored and debated.

The Rio+20 outcome document lacks the desirable connections with the decision making
processes. Governments and private agents take daily decisions that impact our collective future.
There are tools and procedures for assessing to which extent those decisions advance sustainable
development objectives. Impact assessment provides such linkages in a structured and
accountable way.

Hence, one outcome of the Rio +20 Conference that has potential implications to IA in general
and SEA in particular is the agreement to start a process of establishing Sustainable
Development Objectives (SDO). Although not a part of the initial set of goals of the Conference,
SDO were incorporated in the agenda after a proposal has been made by Colombia. At a certain
point during the pre-Conference period, there was some hope that a set of core objectives could
be adopted at the Conference, but the challenges of reaching an agreement on the objectives that
should have been pursued rapidly became clear. Since the deadline to attain the Millenium
Development Goals (MDG) is 2015, there was time to agree on new sustainable development
objectives.6

A key difference between the SDO and MDG process - and a reason why agreement on the SDO
is and will remain difficult - is that the former are intended to apply to every country, while the
latter are goals for the developing countries only. SDO are potentially important to SEA because
policies, plans, and programs (or PPPs, the subject of strategic assessment) could be assessed in
terms of how do they converge to or deviate from reaching the SDO.

Impact assessment in the transition to a greener economy and the way ahead
in International Law
That the Rio+20 Conference has not acknowledged the role and potential contribution of SEA to
policy choices is something regrettable. Notwithstanding, work is now being done in
development agencies and developing countries to show how SEA can increase green growth
initiatives.

In addition, there is a growing business case for both project EIA and SEA. Many companies, all
over the world, both in developed and developing countries, are struggling against obstacles in
obtaining approval for new projects, especially in the natural resources sector. The emerging
concept of "social license" conveys the idea that in some cases a government approval is not
enough and that the consent of host communities is needed to establish long-term and strong
relationships that enables continuous operation.

But the biggest challenge of all remains what the Brundtland Commission has expressed:
mainstreaming sustainability into policy making.

Conflict at all levels can no longer be accepted as part of the development and decision-making
process. The continuing global economic crisis and the fast deterioration of ecosystem's goods
and services, call for all actors in the decision-making and development process to use impact
assessment and strategic environmental assessment more aggressively. The use of IA or SEA is
no longer about protection of the environment; rather it represents a shift in the way business and
policy making that respect global realities are made. SEA and IA should show that profits can be
made, jobs created, and, at same time, that a balance can be achieved among societal needs and
the planet's ability to provide them.

6
Munashinghe, M.; Millenium Consumption Goals (MCGs) for Rio+20 and beyond: A practical step towards
global sustainability. Natural Resources Forum, v. 36, p. 201-212. 2012.
Evolution of EIA in India
The term environmental impact assessment is derived from Section 102 sub clause 2 of the
National Environmental Policy Act, 19697 of the United States of America. Possibly the main
reason for the propulsion of environmental awareness in India was the United Nations
Conference in Stockholm on Human environment in the year 1972.8 That same year, the
National Council for Environmental Policy and Planning was created. In 1985, this body later
evolved into the Ministry of Environment and Forests (hereinafter MoEF) after a committee
which had been formed to review the administrative and legislative measures called the Tiwari
Committee recommended in 1980, in its report that a department on the environment be created.
This was to make sure that environmental protection along with studies on the environmental
impact of projects on developments which were proposed were carried out and that the state have
a semblance of responsibility when it came to the control and monitoring of pollution.9 The
department would be formed under the ministry of science and technology. Thus, the seeds of
environmental impact assessment were slowly beginning to take root in India. The Ministry of
Environment and Forests is currently in charge of issuing guidelines with regard to EIA for
varied projects.10 Another momentous change that would take place would be the amendment of
the constitution of India to cement the constitutional mandate to protect the environment and the
passing of the Environmental Protection Act, 198611 which would later follow and which would
lay down the groundwork for EIA as a direct result of the Stockholm Conference.

One of the postulated reasons for this slow awareness with regard to the environment when it
came to developing nations is that due to the unique circumstances of the developing nations,
economic gains have been prioritized over environmental protection. Even now, when projects
are being considered, it is the economic feasibility and the cheapness of the endeavour which is
first thought of. Only then does the impact on the environment factor in, followed by possible
ways in which regulations can be circumvented.12 Due to the delayed effects of environmental
devastation, economic benefits almost always take precedence. Eventually, EIA evolved as a
means to tackle this. As seen in the earlier chapters, EIA was first evolved and utilised in the
developed nations in the early 1970s.

7
National Environmental Policy Act, 1969.
8
Declaration of the United Nations Conference on the Human Environment, Stockholm, 1972.
9
Z.M. Momani, ENVIRONMENT IMPACT ASSESSMENT LAWS, 2 (2010).
10
B.K. Dutta et al, Environmental Impact Assessment and Social Impact Assessment - Decision Making Tools for
Project Appraisal in India, WORLD ACADEMY OF SCIENCE, ENGINEERING AND TECHNOLOGY 39, 1117 (2010).
11
Environmental Protection Act, 1986.
12
Dutta, supra note 6, at 1119.
Legislative Development of EIA in India
There has been substantial development in the field of environmental legislation over the past
few decades. The Indian Constitution being one of the first in the world to incorporate
environmental concerns13, it is not surprising that there were numerous laws developed which
looked into the question of pollution and conservation of the environment. However, the most
significant pieces of legislation which deal with the outcomes of developmental projects (with
which EIA is mostly concerned) are, in chronological order, the Wildlife (Protection) Act 1972,
Water (Prevention and Control of Pollution) Act 1974, Water (Prevention and Control of
Pollution) Cess Act 1977, Forest (Conservation) Act 1980, Air (Prevention and Control of
Pollution) Act 1981, Environment (Protection) Act 1986 and the Public Liability Insurance Act,
1991. It is pertinent to remember here that the issue of environmental management falls within
the purview of the concurrent list14, and therefore, individual states, while obliged to incorporate
these legislations, also had the flexibility to impose more stringent restrictions, alongside their
own Land Use Planning and Zoning regulations.

However, all these laws existed mainly on paper, and with respect to granting approval for
development projects at the very least, little was done to make environmental concerns a major
part of the decision making process until the setting up of the Department of Environment in
1980 and the creation of the Ministry of Environment and Forests (hereinafter MOEF) in
1985.15

EIAs had so far been carried out in India solely due to compulsory requirements by foreign
donor agencies, whereby the Department of Science and Technology took up the appraisal of
river valley projects in 1977-78.16 However, it was not a legislatively mandated action. The
framework law based on which the EIA became an inherent part of developmental project
proposals was the Environment (Protection) Act, 1986. Prior 1994, EIA in India used to be
carried out under administrative guidelines which applied only to certain kinds of projects, and

13
Article 48A, THE CONSTITUTION OF INDIA, 1950. The State shall endeavour to protect and improve the
environment and to safeguard the forests and wild life of the country
14
List III, Seventh Schedule, THE CONSTITUTION OF INDIA, 1950.
15
Sinclair, supra note 2.
16
Cyriac and Sanjanwala, Environmental Impact Assessment in India: An Appraisal, 10 MANUPATRA 74, (1998).
required the submission of information by the proponent to the ministry, after which
environmental appraisal committees would carry out the appraisal.17 At the central level, EIA
legislation was enacted in 1994 by a notification passed under the above mentioned legislation,
titled the Notification on Environmental Impact Assessment of Developmental Projects,
1994.18

Individual states must comply and adopt this legislation, but they are also given the freedom to
make their own legislations stricter. The MOEF was accorded the responsibility for introducing
the EIA Notification.19 At the time when this notification was issued, it did not directly require
an EIA, but did call upon some kinds of projects to be assessed so as to be able to ascertain
whether environmental clearance ought to be obtained from the government. 20 The 1986
regulations prescribed that all public sector or centrally funded projects and mega-projects from
the private sector had to necessarily obtain environmental clearances.21
There were 11 categories of such projects which could require such a clearance, and the decision
on the same was in the hands of the MOEF, who relied on different criteria (size, capital cost,
etc.).22 An Environmental Impact Report, Environment Management Plan, and Disaster
Management Plan were required to obtain clearances along with a detailed project report. 23 The
first, namely the EIR, may be considered the first instance of the law calling for an EIA, albeit
not statutorily mandatory.

17
Rosencranz and Divan, ENVIRONMENTAL LAW AND POLICY IN INDIA, (2nd ed., 2001).

18
Brew and Banham, A review of the development of environmental impact assessment in India, 11(3) PROJECT
APPRAISAL 195, (September 1996).
19
Id.
20
Brew, supra note 8.
21
Brew, supra note 8.
22
Brew, supra note 8.
23
Brew, supra note 8.
Procedure of EIA in India
The EIA Process in India has numerous different phases:
Screening, which is done to understand whether or not an EIA is required for the project in
the first place or not, based on scales of investment, type and location of the development.
Scoping and consideration of alternatives which involves the detailing of the terms of
reference of the EIA. Quantifiable impacts need to be assessed on the basis of magnitude,
prevalence, frequency and duration and non-quantifiable impacts are determined from the
socio economic criteria. This is to be done by the consultant in consultation with the project
proponent, guided by the Impact Assessment Agency if necessary. 24
Baseline data collection, which describes the existing environmental situation of the area of
study. 25
Impact prediction, which involves discussing the possible effects of different aspects of the
developmental project on the environment in general, and the identification of possible
alternatives to each of these aspects, followed by a ranking of these alternatives on the basis
of how best the environmental consequences appear. Impacts such as effects of emissions on
soil, vegetation and human health, noise pollution affecting fauna and human health, changes
in the quality of the water, sediment transport, change in drainage patterns and land use,
effect of waste disposal on land quality, effect on animal habitat, especially on rare and
endangered species, breeding and nesting grounds and so on, impact on economic status of
local communities etc are to be considered. 26
Assessment of alternatives, delineation of mitigation measures and environmental impact
statement, which involves choosing the best alternative, drawing up a mitigation plan
supplemented by an Environment Management Plan (EMP). An EIA report is to be created,
reflecting all possible environmental scenarios of the project. 27
Public hearing, which is mandated by law after the preparation of the EIA report. Affected
persons are to have a right to access the Executive Summary of the EIA report. These
include bonafide local residents, local associations, environmental groups active in the area
or any other person located at the project site / sites of displacement.

24
http://www.moef.nic.in/sites/default/files/Introducation.pdf (Last visited on December 24, 2015)
25
http://www.moef.nic.in/sites/default/files/Introducation.pdf (Last visited on December 24, 2015)
26
http://www.moef.nic.in/sites/default/files/Introducation.pdf (Last visited on December 24, 2015)
27
http://www.moef.nic.in/sites/default/files/Introducation.pdf
 Decision making, which is carried out through consultation between the project proponent
and the impact assessment authority. Monitoring the clearance conditions, which is done
during both construction and operation phases of a project, to ensure that the commitments
made are complied with as well as to observe whether the EIA report made correct
predictions. Corrective action is to be taken wherever there is lack of compliance, and it
allows the regulatory agency to keep track of the implementation of the EMP.28

To begin this process, an application is to be submitted by the project proponent to the Impact
Assessment Agency of the MOEF, including a preformat, an EIA report, a risk analysis report,
and an executive summary containing details and findings of the environmental assessment
studies that were conducted.29 An initial project description must include information such as
land use, project cost, key elements of the project during different stages of its development, and
so on.30 Per the 1994 law, the IAA had absolute discretion over whether to hold public hearings,
and such hearings were mostly called only for projects which involved displacement of a large
number of people.31 This was amended in 1997, and public hearings are now a must. This
decision to hold hearings has to be made within 30 days of receiving the proposal, and notice of
at least 30 days prior to the hearing has to be provided.32

Upon receiving the project application, the IAA evaluates the reports, sometimes in consultation
with a Committee of Experts, and it has to prepare recommendations on the approval of the
project based on an assessment of the documents and data submitted to it or collected by it in
consultation with concerned parties.33 For the purposes of monitoring the implementation of
these recommendations, there must be a submission of a half-yearly report outlining compliance
before the IAA.34

28
http://envfor.nic.in/divisions/iass/eia/Chapter2.htm
29
id.
30
Sinclair, supra.
31
Sinclair, supra
32
Schedule IV, Environment Impact Assessment Notification S.O.60(E), 27/01/1994.
33
Schedule IV, Environment Impact Assessment Notification S.O.60(E), 27/01/1994.
34
Schedule IV, Environment Impact Assessment Notification S.O.60(E), 27/01/1994.
Judicial Decisions relating to EIA

EIA law has come under judicial scrutiny directly as well as indirectly. In the Silent valley 35case,
the High Court of Kerala refused to scrutinize the state governments stance on the
environmental impact of a river valley hydel project, and did not interfere with the decision of
the legislature on the matter. In Sterlite Industries (India) Ltd. v. Union of India36 the Supreme
Court looked into the bases on which the administrative grant of approval for developmental
projects could be challenged. These included illegality, irrationality and procedural
impropriety. Thus if environmental approval were to be granted by the concerned authority
outside the powers conferred upon it by law, it would imply grounds for illegality. If the
decision were to suffer from Wednesbury unreasonableness, the Court could interfere on grounds
of irrationality. Last, an approval can be challenged if it is found to be in breach of proper
procedure. In Gram Panchayat Navlakh Umbre v. Union of India and Ors37 the Court held that
the decision making process of those authorities besides being transparent must result in a
reasoned conclusion which is reflective of a due application of mind to the diverse concerns
arising from a project such as the present. The mere fact that a body is comprised of experts is
not sufficient a safeguard to ensure that the conclusion of its deliberations is just and proper.
Similarly, in Samata and Forum of Sustainable Development v. Union of India & Ors38 the NGT
held that In order to demonstrate [the] threadbare nature of discussions while considering a
project for giving its recommendation, it is essential that the views, opinions, comments and
suggestions made by each and every member of the committee are recorded in a structured
manifest/ format.

35
Society for Protection of Silent Valley v. Union of India and others, 1980 Kerala HC

36
Sterlite Industries (India) Ltd. v. Union of India, (2013) 4 SCC 575, Supreme Court of India.
37
Gram Panchayat Navlakh Umbre v. Union of India and Ors, Public Interest Litigation No. 115 of 2010. Judgment
of Bombay High Court on June 28, 2012.
38
Samata and Forum of Sustainable Development v. Union of India & Ors , Appeal No. 9 of 2011. Judgment of
NGT (Southern Zone, Chennai) on December 13, 2013.
Criticism

There is a lack of clear methodology for the EIA despite the statutory clarification, as well as a
shortage of trained personnel who would be able to carry out their tasks under the EIA
efficiently. This limits the effectivity of the Environment (Protection) Act, 1986. For the longest
time, there was a lack of a legal requirement for an EIA, which meant that records were not kept
properly and there was a gap in the information made available to the public.39 Here, one may
also discuss the EIA report pertaining to the Pulichintala project in Andhra Pradesh. The locals
were heavily against it due to the submergence of about 50 villlages that it threatened to cause;
further, it was discovered that the environmental clearance to this was granted without an EIA
report and public hearing. The Andhra Pradesh High Court issued an injunction to prevent the
resuming of work unless proper clearances were granted.40 Similarly, in Uttaranchal, the EIA
report of the Pala Maneri hydel electric project was also found to be irregular, but the authorities
went on to grant the conditional clearance to the project, despite it being in a seismically active
zone. However, the project finally ended up getting called off.41 In such scams, the onus may be
said to lie upon those who are responsible for regulating the EIA law.42

The problem of following up after the EIA procedure is initiated is one of the major weaknesses
of this law as it stands today. The EIA scams, as highlighted, are seen as the result of non-
compliance, which points towards a systemic failure of EIA law. It is seen that over the last two
decades, EIA law has been amended numerous times, mostly in favour of the proponents of the
project. It is important that the law not be further diluted by way of amendments which may end
up rendering this toothless. It has been proposed that strict liability be imposed on the defaulters

39
K.G. Balakrishnan, The role of the judiciary in environmental protection, (March 20, 2010), D.P. Shrivastava
Memorial Lecture, Bilaspur. available at
http://supremecourtofindia.nic.in/speeches/speeches_2010/dp_shrivastava_memorial_lecture_20-3-10.pdf (Last
visited on December 24, 2015)
40
Parna Mukherjee, EIA Scams: Decaying the EIA Legal Regime in India, 6(3) JOURNAL OF ENVIRONMENTAL
RESEARCH AND DEVELOPMENT 507, (2012)

41
Id
42
Mukherjee supra
whether they be proponents or regulators or consultants. This could go a long way in
discouraging failures to implement the existing laws.43
In analyzing the law related to EIA in India, we find that on paper, there is procedural
comprehensiveness with respect to the way in which the law is enacted as a whole. The 1994
notification provides for what seems to be a fair, equitable and reasonably transparent
mechanism for assessing the potential impact of any developmental project on the environment.
However, as with most other well-drafted legislations in the country, the problem lies again in
proper implementation. It is not uncommon to find that mere lip-service is paid to the procedural
requirements mandated by the law in most of these cases. As highlighted above, there are
numerous cases of shoddy procedure with respect to EIA provisions. The regulatory authorities
tend to overlook failures of procedure on the part of the proponents. In many cases, the requisite
documents are not available to the public, and this takes away from the intention that the
legislators had when they originally came up with the need for public participation.

Thus the challenges that are exposed with respect to EIA imply that a strong checks and balances
mechanism is required to ensure that the law is effectively implemented. There needs to be a
stronger pressure on the proponent to make sure that the initial executive summary as well as the
EIA report in general is made available to the public easily. Furthermore, there is also a need to
introduce the role of the public earlier, and to ensure that they are given a say at each stage of the
project. Utopian as this ideal may seem in this era in Indias economic development structure
where the role of private corporations and enhancing industrial growth seem to be the call of the
day, it is nonetheless in the interest of greater sustainability as well as social development that
the EIA process be taken seriously in the country. As a mechanism that originally evolved to
ensure that the socio-ecological disturbance that developmental projects can cause would
subside, it is essential that the rationale behind the legislative introduction of the 1994
notification be upheld.

43
Mukherjee supra
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