EIA and Public Participation inIndia
Ritwick Dutta
Environmental Lawyer and Managing Trustee Legal Initiative for
Forest and Environment. India

Some essentials for an Effective EIA System

1.

An effective, transparent
and participatory process
for information collection

An opportunity for the
public to actively
participate and influence
the decision making
process

An objective appraisal of
the project by experts
and final decision by thepolitical leadership

Independent monitoringmechanism

An effective andindependent grievance
redressal mechanism
including an appellatefourm

EIA Legislation
1992

Introduction of EIA Notification as adelegated legislation under Environment(protection) Act, 1986

1994

Public Hearing made mandatory for arange of projects in India

2006

Revised EIA Notification

EIA Process

Screening

Scoping

PublicConsultation

Statutory Appeal
before National
Green Tribunal

Decision of the
MoEF based

Appraisal

Environmental Regulatory Process
Appeal Before
National Green
Tribunal

Decision by MoEF
Appraisal by Expert
Appraisal Committee(MOEF)
Mandatory EIA and Public Hearing
ProcessThepublicThe
Ministry ofEnvironment and Forest

Actors inthe EIA
Process inIndia

The Expert
Appraisal
Committee(EAC)

TheProject
ProponentThe EIAconsultant

Role of the Public in the EIA Process
Role of thePublicNo directRole

Scoping• Determination of Terms of Reference (TOR)
for preparation of Environment ImpactAssessment Report.

• Scoping is the ‘heart and soul’ of the EIA
process. [Vijay Bansal Versus State of Haryana, 2009
Punjab and Haryana High court]

Application for Prior Environmental Clearance
Form 1, 1A, prefeasibility reportParticipation during EIA Preparation“For any proper environment impact assessment study
to be considered genuine the studies should bemade after informing ………….. people of the area.
Studies carried out behind the back of the persons
who are likely to be affected by the establishment ofa plant are meaningless”
Him Parivesh Environment Protection Society Vs State of Himachal Pradesh
Judgment dated 4-5-2012 Himachal Pradesh High CourtPublic Hearing

“Public Consultation” refers to the process by which
the concerns of local affected persons and others
who have plausible stake in the environmental
impacts of the project or activity are ascertainedwith a view to taking into account all the material
concerns in the project or activity design asappropriate”[EIA Notification, 2006]

“There is no use of
having a public
hearing if the public is
not aware of theeffects of the projectboth positive andnegative. A public
hearing without first
informing the public is
a total sham”
Him Parivesh Environment Protection
Society Vs State of Himachal Pradesh
Judgment dated 4-5-2012 Himachal
Pradesh High CourtDuty to give reason• “We therefore hold that in the context of the EIA Notification… and themandatory requirement of holding public hearings to invite objections it isthe duty of the Expert Appraisal Committee , to whom the task ofevaluating such objections has been delegated, to indicate in its decision
the fact that such objections, and the response thereto of the project
proponent, were considered and the reasons why any or all of suchobjections were accepted or negatived. The failure to give such reasons
would render the decision vulnerable to attack on the ground of being
vitiated due to non-application of mind to relevant materials andtherefore arbitrary.
Utkarsh Mandal versus Union of India. Judgment of the Delhi High Court followedin Gram Panchayat Tiroda, Gau Raxa Hitraxa and Samata Vs Union of India

On Appeal against Approval Granted• “Law gives a right to 'any person' who is 'aggrieved' by anorder to prefer an appeal. The term 'any person' has tobe widely construed. It is to include all legal entities so as
to enable them to prefer an appeal, even if such an entity
does not have any direct or indirect interest in a givenproject. The expression 'aggrieved', again, has to beconstrued liberally. The framers of law intended to givethe right to any person aggrieved, to prefer an appeal
without any limitation as regards his locus or interest.
The grievance of a person against the Environmental
Clearance may be general and not necessarily person
specific”

On Appraisal process in EIAAppraisal is not a mere formality. It does require
the detailed scrutiny by the EAC or SLEAC of theapplication as well as documents filed such as the
final EIA Report, outcome of the public
consultation, including public hearing
proceedings, etc.
[Gau Raxa Hit Raxa Pauchav Trust verus Union of India, NGT 2013]

Adivasi Kisan Ekta Sanghatan versus Ministry ofEnvironment [NGT, 2012]• Coal Mining Project in Chhattisgarh by Jindal
Steel and Mining Company.
• Challenged by an unregistered association oftribals and farmers• Challenged on the ground of faulty Public
hearing and lack of cumulative impact
assessment

Public hearing in Chattisgarh

NGT’s Response..
This is not a case where there are a few ignorable procedural
lapses in conducting the public hearing. This is a case of amockery of public hearing, which is one of the essential partsof the decision making process, in the grant of Environmental
Clearance. This is a classic example of violation of the rules
and the principles of natural justice to its brim. Therefore, weconsider it appropriate to declare that the public hearing
conducted in this case is nullity in the eye of law andtherefore is invalid.
[Adivasi majdoor Kisan Ekta Sanghatan vs Union of India, NGT
April, 2011 ]Samata Versus Union of India
National Green Tribunal, 2013

• Coal Fired Power Plant of of 2640 MW• Located in Andhra Pradesh and Changed by agroup representing the local tribal
communities.

• ……It is not as if the Tribunal is not unmindful of the factthat the proposed project is a thermal [coal fired power]
power plant estimated at a cost of approximately Rs.11,830
crore [ approx 2 Billion USD] and if commissioned the State
would be relieved of the acute shortage of power to someextent…… But, when it is noticed by the Tribunal that theEAC [Expert Committee] had not made proper exercise by
applying its mind to make a proper evaluation [of the EIA]
and the same also remained unnoticed by the Ministry ofEnvironment and Forest while granting the EC [Approval]
for the project in question, taking into account the larger
interest of the nation from the point of view of ecology andenvironment, the Tribunal cannot give its nod … for theapproval made by MoEF.

Jeet Singh Vs Union of India [NGT, April 13, 2013]•1050 MW Coal Fired Power Plant, Chhattisgarh, India• Challenged by two farmers before the NGT.

The Precautionary Principle requires the authority to examine
probability of environmental degradation that may occur andresult into damage…..In our opinion, therefore, by applying
precautionary principle, the EC [approval] should not havebeen granted by the MoEF. As stated before, the economic
interest shall be put in the backseat when it is found that
degradation of the environment would be long lasting andexcessive….It is well settled that the person who wants tochange the status quo has to discharge burden of proof toestablish that the proposed development is of sustainable
nature. We are of the opinion that the Project Proponent
failed to discharge such burden of proof..

• Having considered the facts and legal position as
above, we are of the opinion that the impugned EC[Approval] is granted without appropriate balancing act
to see whether the project is proper and viable on thetouchstone of principles of “Sustainable Development”
and “Precaution” needed to avoid future disaster or
irreversible environmental degradation.
• …we have arrived at the conclusion that the impugnedorder of the MoEF, granting approval to set up the coalbased Thermal Power Plant as sought by the Project
Proponent is illegal and liable to be quashed.