Systemic Weaknesses and the Need for Reform
Despite having a robust legal regime and procedures in place, the Environmental Impact Assessment (EIA) process of Indian mining activities is bedeviled by systemic and operational shortcomings that considerably reduce its overall effectiveness. These shortcomings undermine the credibility of the EIA system and aggravate concerns of uncontrolled environmental degradation, social unrest, and legal disputes. This chapter presents an elaborate examination of the most significant gaps and weaknesses that undermine the integrity of EIAs for the mining sector.
The most evident of India’s EIA regime’s limitation is the simplistic and formulaic character of impact assessments. Majority of the EIA reports are drafted by consultancy firms on tight deadlines and low budgets, leading to sub-standard assessments on outdated or incomplete information. Instead of conducting sophisticated field studies, most reports are drafted based on secondary data or even duplicated reports, the selfsame paragraphs and findings being duplicated in dissimilar unrelated projects. This dilutes the scientific character of the overall assessment process and makes decision-making by regulators difficult on the basis of site-specific information.[i]
A big gap also arises in the scoping and Terms of Reference (ToR) stages, which are sometimes treated as a formality. The ToR report is meant to provide a basis for the construction of the Environmental Impact Assessment (EIA) report by identifying the specific environmental and social issues that need to be comprehensively assessed. In practice, however, these ToRs are generic and do not take into consideration local sensitivities like forest cover, hydrology, biodiversity, or proximity to indigenous communities. As a result, significant impacts can be left out entirely or poorly analyzed, leading to improper conclusions and ineffective mitigation strategies.[ii]
The public hearing mechanism, in the name of further democratizing environmental decision-making, is afflicted with a range of problems unleashed by procedural shortcomings and willful avoidance of transparency. Even though public hearings are required under the EIA Notification of 2006, these are generally conducted at inaccessible locations, with inadequate advance notice, and without sufficient dissemination of the EIA report in local language. Public hearings have been poorly attended or avoided altogether by invoking legal exemptions. Additionally, when local communities raise genuine issues, these are seldom considered while making the final decision. Consequently, there is pervasive perception of alienation and mistrust on the part of affected communities, which normally manifests itself in the form of protests, litigations, and unjustified delays in project implementation.[iii]
There are significant challenges to monitoring and enforcement of conditions accompanying environmental clearances. Once clearance is obtained for mining projects, there is minimal monitoring to see whether the project proponent adheres to the specified mitigation and environmental protection measures. Post-clearance monitoring is the responsibility of the poorly funded State Pollution Control Boards (SPCBs), which do not possess the necessary technical personnel and political autonomy needed for effective enforcement. Even if compliance reports are submitted annually, they are primarily drafted by the developers themselves and may or may not be subject to proper independent review. This absence of effective monitoring results in violations going unnoticed until the environmental harm has progressed to a stage of irreversibility.[iv]
The second most significant issue is related to the in-built conflict of interest inherent in the consultant-client relationship. The EIA consultants are remunerated and employed by the proponents and hence create the possibility of the assessors having a vested interest in minimizing the negative impacts for the sake of obtaining approval of the project. Even if there are mechanisms of accreditation, such as by the Quality Council of India (QCI), the efficacy to prevent this built-in institutional bias remains low. The system essentially is flawed that it generates the EIA report, which, in practice, translates into vindications of the project rather than an honest appraisal of impacts to the environment.[v]
In addition, the Indian EIA process gives very little attention to cumulative and indirect effects. Most EIAs for mining plans consider the proposed plan in isolation, without attention to the cumulative effect of many existing and proposed plans in the same region. For example, in mining areas like Goa or Chhattisgarh, where scores of mines are located in close proximity to one another, the cumulative effect on water tables, forests, air quality, and local health is staggering. But there is no legislative provision for conducting regional or cumulative impact assessments. This piecemeal approach grossly underestimates the magnitude and gravity of environmental degradation.[vi]
More disturbing is the exclusion of climate and biodiversity from EIA reports. Even in ecologically sensitive regions, EIA studies do not even record the presence of threatened species, sensitive ecosystems, or ecological corridors. During the age of global concern about climate change, Indian EIAs hardly assess greenhouse gas emissions, carbon footprint, or even long-term climate resilience of mines. These omissions reflect a very limited, crude comprehension of environmental assessment that contradicts dominant science and policy paradigms.[vii]
Finally, there is total absence of public accountability and transparency in the entire EIA process. Important documents like EIA reports, Expert Appraisal Committee meeting minutes, and compliance reports are not released in the public domain. Though the government releases some of them on web portals, none of this ever becomes available to common citizens and civil society due to its untranslated, inaccessible form. This absence of transparency renders it hard for people or research or institutions in the nongovernmental sector to criticize a decision or appeal against the proponents.[viii]
Generally speaking, the Indian mining EIA process, while cautiously legalistic in conception, is defective in operation. From information gaps and procedural shortcuts to weak enforcement and public distrust, these loopholes enable environmentally harmful projects to be granted clearances without adequate examination. These issues are not only to be dealt with through procedural change but also through a restructuring of the way in which environmental studies are conceived, carried out, and applied within the country.
[i] Ritwick Dutta & Shibani Ghosh, Weakening India’s Environmental Regulations, 45 Econ. & Pol. Wkly. 20, 22-24 (2021).
[ii] Centre for Science and Environment, EIA Guidelines: Strengthening Monitoring and Implementation, 18 Down To Earth 45, 47-49 (2017).
[iii] Manju Menon & Kanchi Kohli, Environmental Decision-Making: Whose Agenda?, 41 Econ. & Pol. Wkly. 1005, 1006-1008 (2019).
[iv] Centre For Sci. & Env’t, Turnaround: Reform Agenda For India’s Environmental Regulators 24-28 (2020).
[v] Sachin Warrier, Conflict of Interest in Environmental Impact Assessment: A Case Study of Mining Projects, 12 Envtl. L. Rev. 87, 89-91 (2022).
[vi] Pushp Jain & Ritwick Dutta, Cumulative Impact Assessment: A Missing Link in Environmental Assessment Process in India, 14 Envtl. Impact Assessment Rev. 138, 140-142 (2018).
[vii] Ministry of Env’t, Forest & Climate Change, Report of The Expert Committee on Climate Change and EIA Process 10-15 (2022).
[viii] Lovleen Bhullar, Making EIA Accountable: The Case for Legal Standing and Judicial Review, 28 Econ. & Pol. Wkly. 98, 102-105 (2020).