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COMPARITIVE ANALYSIS OF EIA LAWS IN INDIA AND CANADA (By- Meenakshy S Dev)
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COMPARITIVE
ANALYSIS OF EIA LAWS IN INDIA AND CANADA
Authored By- Meenakshy S Dev
Abstract
Environmental Impact assessment is
the pillar of harmony between mankind and environment. This assessment is a
procedure to ensure that environmental considerations are well respected before
taking a decision to give rise to a project that may eventually prove fatal to
the environment. The research paper focuses on the Environmental Impact
Assessments of India and Canada and helps to understand the pros and cons of
both legislation. Moreover, it will also help in identifying the key issues
with Legislature while drafting such a legislation. Environmental Impact
Assessments are directly under pressure and struggle in striking a balance
between economical development and ecological integrity.
Keywords: Environmental Impact Assessment,
economic development, ecological integrity
I.
Introduction
Environmental Impact Assessment is an
analysis of the potential impact or implications a developmental project could
have on natural and human environment.[1]
This assessment can help evaluate the consequences and to prevent or reduce
damages and also seek technological solutions.[2]UNEP
defines Environmental Impact Assessment as a tool used to identify the
environmental, social and economic impacts of a project prior to decision-making.
This process helps reduce economic investment, environmental damage, impacts of
legislations etc.[3]
Environmental Impact Assessment, though has various legislations and regulation
across the globe, the stages are very much similar.
History Of Environmental Impact Assessment
Before 1960s, very little care was
given to environment and consequences of human action on the environment.
Undoubtedly, there was pollution prevalent in those times, but due to lack of
awareness, much actions or efforts were not adopted my people or nations to put
an end to it. It was the because of Rachel Carson and her book “Silent Spring”
that helped spread social awareness around 1960s due to which there were
several environmental movements.[4]
Due to these movements, during early 1970s and mid 1970, United States
constituted the National Environmental Policy Act 1969, wherein EIA was made
mandatory in the case of large scale projects.[5]The
Act had a wide range influence across countries and this shifted the focus
of many countries, especially Europe and
Asia, on EIA introduction.
Environmental Impact Assessment- International Efforts In Legal Or
Regulatory Context
International efforts such as legally
binding international documents and non legally binding international documents
were adopted to look into Environmental Impact Assessment and its approaches to
minimize or reduce adverse effects on nature. Legally binding international
documents included treaties and protocols such as United Nations Law of the Sea
Treaty, Espoo
Convention, Biodiversity Treaty etc.
Rio Declaration 1992 also emphasizes on Environmental impact assessment and
calls it as a national decision making instrument which can be used to assess
the impact of adverse effects on the environment. Principle 17 elucidates on
this process and principle 15 backs up this assessment with the precautionary
principle. Agenda 21 which is result of this Convention also proposes the
importance or the need for the government to promote the sustainable
development through environmental impact assessment.[6] It
also proposed to have EIA procedures on projects which can have significant
impact on biodiversity and to promote public participation in such cases.
It is also pertinent to note that
several multi-lateral financial institutions such as Asian Development Bank,
African Development Bank, Inter American Development Bank, European Bank for
Reconstruction and Development were designed so as to promote economic growth
and to overview the procedures of EIA.[7]Though
the procedures vary from bank to bank, a standard procedure is followed when it
comes to approval of EIA.[8]
World Bank has various categories such as Category A, B and C for screening
projects. Depending on the intensity of the impact a project can have on the
environment this categorization is made.
II.
OBJECTIVES OF THE RESEARCH PAPER
·
To compare the EIA Legislations and procedure in India
and Canada
·
To analyse the challenges and drawbacks of the EIA
system in India
III.
RESEARCH METHODOLOGY
Considering the nature of study,
doctrinal and analytical research methodology is adopted. The research shall
involve an in-depth study of primary and secondary materials. Primary sources
shall include Statues, government reports etc. Secondary sources shall include
articles, research papers, websites etc. The study shall be comparitive in
nature.
IV.
EVOLUTION OF EIA IN INDIA&
CANADA
India
Late 1970s witnessed the
evolution of Environmental Impact Assessment when the then Planning Commission
examined the river valley project from an environmental perspective. The
Environment (Protection) Actwas enacted in the year 1986 to improve the
environmental quality and to reduce the pollution. In compliance with principle
17 of Rio Declaration, States were to implement Environmental Impact Assessment
as a national instrument and accordingly, a notification was issued in 1994
which went through subsequent amendments and in the year 2000 it was made
statutory.[9]
The Environment (Protection) Act 1986 is the only Act which governs EIA in
India to which a number of notifications were issued.
Canada
Environmental Impact Assessment
conducted for the purpose of development of projects in Canada is based on law.
EIA was introduced in Canada in the year 1973 by the federal Environmental
Assessment and Review Process (EARP) which was a two phased approach initial
assessment phase and public panel review phase.[10]
Inorder to clarify the roles and responsibilities of various parties involved
in the implementation of EIA, Minister of Environment issued guidelines.[11]
In the year 1989, the Court passed an order to draft an Act and to replace the
written piece of EARP guidelines for better EIA governance. The Federal
Government took the direction seriously and went on to draft an EIA legislation
which was known as the Canadian Environmental Impact Assessment Act (CEAA). It
was passed in the year 1993 after a series of debates and was finally
promulgated in the year 1995. In the year 2012, a revised version of CEAA 1995
came into effect with significant changes. Recently in 2019, a new Act named
Impact Assessment Act replaced the CEAA 2012 which governs the environmental
assessments.[12]
V.
COMPARITIVE ANALYSIS OF EIA LAWS IN
INDIA AND CANADA
Canada
The Impact Assessment Act 2019, is
the most recent Act which replaced theCanadian Environmental Impact Assessment
Act (CEAA). In the new Act, there has
been inclusions to improve the process and adaptations from the previous Act
which are quite beneficial.
The Impact Assessment Act 2019 has
laid down assessment timelines for layout of the process. The first phase
is the planning phase and for this a timeframe of 180 days is given, which in
itself is divided into two timeframes of 80 days and 100 days. The first
timeline of 80 days is further divided into sets of four steps with 30days, 10
days, 30 days and 10 days. The next 100 days is divided into sets of four steps
with 30 days, 30 days, 30 days and 10 days.
The purpose behind the first 80 days is with
respect to indigenous people and their rights and in engaging them to identify
the issues and potential impacts related to the projects.[13]During
this period a detailed description about the project has to be produced and key
issues have to be discussed and depending on this a decision has to be arrived
at whether to carry out impact assessment or not. The purpose behind the
remaining 100 days is provide with four plans namely Impact Assessment
Cooperation Plan, Indigenous Engagement Partnership Plan, Permitting Plan and
Public Participation Plan. In Impact Assessment Cooperation Plan issues are
identified and a plan for cooperation with other jurisdictions is set up. The
Indigenous Engagement Partnership Plan is carried out to clarify and further
provide certainty through public participation. To have a check on the
regulatory needs, a permit plan is carried out. Another guideline which
highlights the requirement of documents related to proponent’s impact plan is
the tailored impact assessment. These guidelines are arrived at by the process
of scoping that took place in this phase of planning. Moreover, these
guidelines help in collecting information which will be useful for the purpose
of preparing the impact statement.
The second phase is the
Impact Statement Process which begins when the agency issues notice of
commencement. Thereafter the proponent drafts the impact statement which is
based on the tailored impact assessment.[14]
This is done thoroughly as the proponent gathers all the information required
through means of studies. Thereafter the same is carried out in consultation
with the indigenous groups and the public. The proponent seeks advice from the
Agency and federal authorities, as necessary, to better reflect the guideline
requirements in the Impact Statement. The agency checks
if the information collection is
reliable and true and has met the requirements. If not, then further
information is collected from the proponent. Once satisfied with the
information, the agency accepts the Impact Statement. This whole process has to
be carried out within 3 years.
The third phase is the
Impact assessment process which begins when the agency accepts the impact
statement and issues notice of determination. Impact assessment as per Section
22(1) of the IAA, 2019, is carried out to evaluate the negative and positive
impacts of the projects on environment, economy, society etc. These assessments
are conducted either by an agency or a review panel. For assessment process,
the impact statement isanalysed and reviewed. Thereafter a draft impact
assessment report is prepared with the views and opinions of the indigenous
groups and the public.[15]
Hereafter, a final report is prepared with the potential impacts and is sent to
the Minister. The report must include positive and negative impact of the
project on the environment, comments received from the public, recommendations
with respect of the follow up program and the conclusions drawn out of it.
The fourth phase which
is the decision-making phase is categorized as category A which is the
ministerial decision and category B which is referred to the Governor in
Council for consideration. Determination of the adverse effects is based on
public interest. Public interest determination is based on impact assessment
report and other factors such as the project’s contribution to sustainability,
the related mitigation measures, impacts it will have on indigenous groups and
their rights etc. Based on all these the Minister should make a final decision
statement.[16]
The final phase which
is the follow up and monitoring is the post decision phase wherein the accuracy
and effectiveness of the report and the mitigation measures are verified,
whether opportunities were provided to indigenous groups and public to
participate etc.[17]In
Impact Assessment Act, a new authority is given to the Minister to make amends
post decision making, however the determination of public interest cannot be
altered. In this phase, compliance is verified and in case of non-compliance
corrections are made wherever necessary. In addition to these, the new Act has
also introduced new penalty scheme with increased fines.
The input of the public is given
importance and increased opportunity for developers. Moreover, the whole
process has become more transparent and efficient. The Act emphasizes on the
early start of public participation and it should not merely be considered as a
checklist like in any other system. Public participation ensures mutual
learning and active listening will double the chances of
environmental safety.[18] A
reciprocal dialogue will ensure that the public has been heard and to allow
reaching at a right decision making.
Critical
Analysis
The IAA 2019 has improved the EIA
procedures in the country but it has its own drawbacks as well. To point out a
few, first of all, the environment agency to whom the sole responsibility has
been placed, has widened the powers of the Agency and they can be held
responsible in case of any negative impact. It can be considered and counted as
a poor framework with respect to public participation, as has not been
mandated.
India
EIA was made mandatory in India under
the Environmental Protection Act of 1986.The Ministry of Environment and
Forests (MoEF), Government of India, hasprepared environmental guidelines, to
help the project proponents to work outan EIA.[19]
The two major notifications for EIA, one in 1994 and 2006 and recently a new
draft has been introduced. The EIA 2006 notification included the stages of
screening, scoping, public consultation and appraisal.
Eia Notification,2006
The salient feature of this
notification or amendment is that developmental projects were categorized into
two, Category A projects and Category B projects. Category A is basically
national level appraised projects are these carried out by Impact Assessment
Agency(IAA) and category B is state appraised and is usually carried out and
given clearance by State Level Environment Impact Assessment Authority (SEIAA)
and State Level Expert Appraisal Committee (SEAC).[20]
Category A projects need mandatory environmental clearance and they needn’t
undergo screening process whereas Category B projects have been further
classified into two broad categories Category B1 and Category B2 and theyhave
to undergo screening process, but the main difference is that Category B1
projects mandatorily requires EIA category B2 projects doesn’t require EIA.[21]
Draft EIA,
2020
A draft EIA notification has been
proposed in the year 2020 by the Ministry of Environment, Forest and Climate
Change (MoEF&CC) to replace the existing EIA Notification, 2006under the
Environment (Protection) Act, 1986. There has been some major inclusions and
exclusions and Some Of Which Are:
The Four
Stage Process Has Been Replaced By A Six Stage Process
Earlier there were only four stages
for EIA as per the 2006 notification whereas as per the 2020 draft
notification, it has been raised to six which are scoping, preparation of draft
EIA, public consultation, final EIA, appraisal and grant or rejection ofenvironmental
permission. One of the most significant changes in the new draft is that
screening process has been completely taken out. Category B projects had to go
through screening process but now due to the exclusion of screening process,
they will not have to go through this. [22]
Categories
Of Projects Have Been Added
The current 2006 notification has
only three categories of projects but the draft 2020 has proposed to increase
the number of projects to five.[23]
Project A required to have prior environmental
clearance from the Ministry, B1 projects
fulfilling General Conditions mentioned in Clause 3 are required to get prior
clearance from the Ministry,B1 projects not fulfilling General Conditions
mentioned in Clause 3 are required to get prior clearance from SEIAA or UTEIAA), B2 projects required to
be placed before Appraisal Committee are required to get clearance from SEIAA
or UTEIAA, andB2 projects not required to be placed before the Appraisal
Committee are required to get prior environmental
permission from SEIAA or UTEIAA.[24]
Reduction
In Time For Notice Period
In the current 2006 framework, the
time period allotted for public hearing was 30 days, however, with the new
draft framework, it has been reduced to 20 days.[25]This
reduced the time period for written response of the public and in turn, public
participation takes a step backwards. Expecting the public to give such a fast
reply to a project is not reasonable and it wont be able to give a genuine
written reply in such short notice too.
Post Facto
Clearance
Another major inclusion in the draft
2020 is that it has granted post facto clearance, i.e., a project that has been
operating even without environmental clearance, can apply for the clearance and
be regularised.[26] This
adds to more complexity and fails the whole objective behind Environmental
Impact Assessment.
Annual reports
As per the new draft, reports on
compliance need be submitted annually and not every six months as per the 2006
notification.[27] A
regular check on compliance would have been better to keep a check on if it is
being carried out in a proper manner.
Critical
Analysis
Draft EIA 2020 has brought in a
number of inclusions and exclusions and to point out, most of the changes are
against environmental governance and compromise safeguards. Moreover, it also
goes against the fundamental guidelines put up by Supreme Court of India and
National Green Tribunal. In addition to this, draft EIA 2020 has cut down
public participation and has reduced the timeframe for public opinion from 30
days to 20 days. The draft even lets the industries violate the norms of EIA
with the aid of post facto clearance.
VI. COMPARISON TABLE – IAA,2019 vs
DRAFT EIA 2020
|
Points to differentiate
|
India- EIA 2020
|
Canada-IAA 2019
|
|
Classification of projects
|
Projects are categorized into
phases like A, B1 & B2
|
A project list is designed where
all the projects under the jurisdiction of the IAA 2019 are listed
|
|
Public Participation
|
An environmental impact statement
is prepared where all the issues raised by the public are listed.
|
Public participation is highlighted
in the Preamble and is considered important through the planning phase.
|
|
Timeframe for public opinion
|
The public has to give their
opinion in 20 days time
|
The Public is involved through out
the planning process which takes place for a period of 180 days
|
|
Stages of EIA
|
(i)Scoping (ii) preparation of
draft EIA, (iii) public consultation(iv) final EIA, (v)appraisal and (vi)
grant or rejection of environmental permission.
|
(i)Planning(ii)impact statement (iii) impact
assessment (iv) decision making, and (v) post-decision.
|
|
Powers vested
|
Powers vested in Impact Assessment
Agency, State Level Environment Impact Assessment Authority (SEIAA) and State
Level Expert Appraisal Committee (SEAC)
|
Powers stretched and solely lies
with the environment agency.
|
|
Presence of Regional Assessment
|
Presence of strong regional
assessment
|
Lack of regional assessment
|
|
Post-facto clearance
|
Presence of post facto clearance nullifies the effect
of EIA
|
Goes through proper scrutiny and
since public participation is at an upper hand, it leads to zero chance of
post facto clearance
|
|
Transparent and accessible
information flows
|
Refrains transparency and access to
information on certain project to the public
|
No access to information beyond the
follow up stage.
|
Vii.
Conclusion
What is done to the environment, is
what we get back. Globalisation and industrialization has been in the limelight
and is one of the status symbol of many countries and environmental degradation
is at stake. Environmental Impact Assessments are basically not for nature, but
for the nature to protect life. Legal frameworks should be in such a manner that
it promotes sustainable development, or otherwise the future can be dark.
From the study and availability of
data, the pros and cons of both the legislations in India and Canada are very
evident. Public participation is the hallmark of a good impact assessment and
it plays a pivotal role in decision making. Public interest has to be borne in
mind while framing any legislation and not to forget, the environment is a
helping hand to the human beings for survival.
On an overall assessment, the
Canadian Impact Assessment Act 2019 has an upper hand when compared to the
Draft EIA 2020. EIA 2020 has taken away the soul of the 2006 notification which
had a stronger side in the impact assessment. Not to ignore the fact that
Canadian Impact Assessment Act 2019 has its own downs, the draft EIA needs to
be replaced with better provisions as it has more violations than compliances.
BIBLIOGRAPHY
PRIMARY SOURCES
Statutes
Ø Impact Assessment Act, available at: https://laws.justice.gc.ca/eng/acts/I-2.75/index.html(Last Visited on December 2,2021).
Ø Ministry
of Environment, Forest and Climate Change, Draft Notification, available at:
http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf
(Last Visited on December 8,2021).
SECONDARY SOURCES
Journals
Ø Zhuang
Yanhua, Hong Songa , Lin Hongyan, Niu Beibei, “ Global Environmental Impact
Assessment Research Trends”, 11 Procedia Environmental Sciences 1499
(2011).
Ø Dibya
Jyoti, “Environmental Impact Assessment in India: An Appraisal”, 3 Dimorian
Review 50 (2016).
Ø Rabel
J Burdge, “A brief history and major trends in the field of Impact Assessment”,
9 Taylor & Francis 94(1991).
Ø Dr. M. Husain Sadar&Dr. William
J. Stolte, “An Overview of the Canadian Experience in Environmental Impact
Assessment (Eia)” 14 Taylor & Francis 216 (2012).
Ø Nikhil Coutinho, Anupama Dhanu&Dr.Siddhesh
Pai, “Critical Assessment of Environmental Impact Assessment (Eia) Reports In
India: Challenges And Recommendations”,7 Journal of Critic Reviews1377(
2020).
Ø Gautami Kulkarni, A Critical Analysis
of Environmental Impact Assessment (EIA) Draft Notification, 2020, 4 International
Journal of Law Management and humanities 897 (2020).
Electronic Sources
Ø Sustainable development Agenda,
available at: https://www.un.org/sustainabledevelopment/development-agenda-retired/( Last Visited December 2, 2021).
Ø William V Kennedy, EIA and Multi lateral
Financial Instituions, available at: https://www.oecd.org/investment/investmentfordevelopment/2076277.pdf( Last Visited on October 14, 2021).
Ø Historical Background of EIA,
available at: https://nitsri.ac.in/Department/Civil%20Engineering/CWE_222_Lectures_19,20,21.pdf (Last Visited on October 19,2021).
Ø Canada’s proposed new Impact Assessment Act:
Good from afar but far from good?, available at: https://www.wcel.org/blog/canadas-proposed-new-impact-assessment-act-good-afar-far-good
( Last Visited on October 20, 2021).
Ø Canadian Environmental Assessment
Agency, Overview of the Impact Assessment Act, available at: https://www.canada.ca/content/dam/iaac-acei/documents/mandate/president-transition-book-2019/overview-impact-assessment-act.pdf (Last visited on Decemeber 1,2021).
[1] Zhuang Yanhua, Hong Songa , Lin
Hongyan, Niu Beibei, “ Global Environmental Impact Assessment Research Trends”,
11 Procedia Environmental Sciences 1499 (2011).
[2]Dibya Jyoti, “Environmental
Impact Assessment in India: An Appraisal”, 3 Dimorian Review 50 (2016).
[4]Rabel J Burdge, “A brief history
and major trends in the field of Impact Assessment”, 9 Taylor & Francis
94(1991).
[6]Sustainable development Agenda,
available at: https://www.un.org/sustainabledevelopment/development-agenda-retired/
( Last Visited December 2, 2021).
[7] William V Kennedy, EIA and Multi
lateral Financial Instituions,available at: https://www.oecd.org/investment/investmentfordevelopment/2076277.pdf( Last Visited on October 14,
2021).
[8]Ibid.
[9]Historical Background of EIA, available
at: https://nitsri.ac.in/Department/Civil%20Engineering/CWE_222_Lectures_19,20,21.pdf (Last Visited on October 19,2021).
[10]Dr. M. Husain Sadar&Dr.
William J. Stolte, “An Overview of the Canadian Experience in
Environmental
Impact Assessment (Eia)” 14 Taylor & Francis 216 (2012).
[11]Ibid.
[12] Canada’s proposed new Impact
Assessment Act: Good from afar but far from good?,available at: https://www.wcel.org/blog/canadas-proposed-new-impact-assessment-act-good-afar-far-good ( Last Visited on October 20,
2021).
[13]Ibid,
[14] Further guidance is provided in
the Practitioner’s Guide to Federal Impact
Assessments
under the Impact Assessment Act, available at: https://
www.canada.ca/en/environmental
assessment
agency/services/policy guidance/ ( Last Visited on October 20, 2021).
[19] Nikhil Coutinho, Anupama
Dhanu&Dr.Siddhesh Pai, “Critical Assessment of Environmental Impact
Assessment (Eia) Reports In India: Challenges And Recommendations”,7 Journal
of Critic Reviews1377( 2020).
[20]EIA 2006 Notification
[21]Gautami Kulkarni, A Critical
Analysis of Environmental Impact Assessment (EIA) Draft Notification, 2020, 4 International
Journal of Law Management and humanities 897 (2020).
[23]Ministry of Environment, Forest
and Climate Change, Draft Notification, available at: http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf( Last Visited on December
8,2021).
[26]Rule 22, Draft EIA Notification,
2020
[27]Rule
20, Draft EIA Notification, 2020
Article Information
COMPARITIVE ANALYSIS OF EIA LAWS IN INDIA AND CANADA (By- Meenakshy S Dev)
Author Name: Meenakshy S Dev
Title: COMPARITIVE ANALYSIS OF EIA LAWS IN INDIA AND CANADA
Email Id: devmeenakshy@gmail.com
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/05/10
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International Journal for Legal Research and Analysis
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