The Ministry of Environment, Forests and Climate Change released the newly drafted Environmental Impact Assessment (EIA) notification a few months back. The notification, which will supersede the 2006 notification, has received sharp criticism from various segments of society for dilution of environmental legal principles that advocate for sustainable development and neglecting human rights of people who will likely be affected by such dilution. It is imperative to evaluate the same in the background of environmental frameworks operating at the international level.
International environmental obligations
India is a party to the Convention on Biological Diversity (CBD)[1] and United Nations Framework on Climate Change (UNFCCC)[2] both of which contain a requirement to have a prior EIA in situations having a significant threat to the environment which works as a precautionary mechanism. EIA as a tool in achievement of sustainable development is well recognised by the United Nations Environment Programme (UNEP). Any project that has not undergone an effective EIA cannot be said to be based on the principles of sustainable development.
The principle of sustainable development and precautionary principle became a part of the law of the land when the Supreme Court of India pronounced its judgment in Vellore Citizens Welfare Forum v. Union of India [3]. The enactment of the National Green Tribunal Act, 2010 established them as a part of the legislative framework of the country. Given the well-documented commitment of India towards Sustainable Development Goals (SDGs) and environment within the same, [4] the state practice of India in diluting the EIA norms is a significant misdirection.
Additionally, meaningful opportunities for public involvement constitutes a pivotal determinant of EIA outcome and is regarded as a procedural human right recognised under Principle 10 of the Rio Declaration. Over the past decades, state practice on public participation has undergone rapid transformation and is declared as a fundamental prerequisite for the achievement of sustainable development. [5]
Violation of ‘Right to healthy environment’
While ‘Right to Healthy Environment’ is not explicitly mentioned in international environmental law (IEL) instruments, it can be argued that it has the potential to become a customary international law principle. This is so because there is widespread and repetitive state practice regarding the right to a healthy environment, which States arguably feel legally compelled to protect. [6] Right to a Healthy Environment was recognised within the ambit of Article 21 of the Indian Constitution when the Supreme Court in the case of Virendra Gaur & Ors v. State of Haryana [7] said that the attainment of Article 21 includes right to life with human dignity which encompasses, the protection and preservation of environment, ecological balance, free from pollution of air and water and sanitation without which life cannot be enjoyed.
India has consistent state practice in regards to recognition of this right through cognizance in its Constitution, domestic legislations and decisions of the Supreme Court. Furthermore, Prime Minister Narendra Modi has stated, “Sustainable Development Goals reflect our evolving understanding of the social, economic and environmental linkages that define our lives.” India’s development mantra “Sabka Saath Sabka Vikas” (Collective Effort, Inclusive Development) and the associated national programs closely track the SDGs. This being so, any weakening of public participation and modalities in the EIA norms, which are an inevitable extension of the Right to Healthy Environment and imperative for achievement of SDGs is a major inconsistency which should be eradicated.
United Nations ‘Protect, Respect and Remedy’ Framework
The Guiding Principles on Business and Human Rights [8] formulated by the Office of the High Commissioner for Human Rights (OHCHR) is an attempt towards implementing the UN ‘Protect, Respect and Remedy’ framework which were developed on the issue of human rights and transnational corporations and other business enterprises. While these principles do not create new international law obligations, they are critical in shaping our understanding how business enterprises are specialized organs of the society performing specialized functions and hence are required to respect human rights.
This document highlights some foundational and operational principles that the States should follow. Principle 1 requires that “the States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication.” The thinning of EIA strictness runs counter to this principle as it makes easy for business enterprises to breach human rights, in this context, the right to a healthy environment.
Principle 3 specifies how communication with the stakeholders to foster a respect for human rights can be strengthened. This is not adhered to by the EIA Notification of 2020. Thus the preventive purpose of the document is defeated.
Conclusion
The State under international law is the entity that is duty-bound to protect and facilitate the human rights of individuals. While States are not per se responsible for human rights abuse by private actors, they may breach their international human rights obligations where they fail to take appropriate steps to prevent, investigate, punish and redress private actors’ abuse. Furthermore, States have the duty to protect and promote the rule of law, including by taking measures to ensure equality before the law, fairness in its application, and by providing for adequate accountability, legal certainty, and procedural and legal transparency. A strict EIA regime increases accountability, certainty and transparency.
There is no inexorable antagonism between State’s human rights obligations and the laws and policies that they put in place that shape business practices. States need to achieve appropriate balance by ensuring both vertical and horizontal policy coherence. Vertical policy coherence entails States having the necessary policies, laws and processes to implement their international human rights law obligations. Horizontal policy coherence means supporting and equipping departments and agencies, at both the national and sub-national levels, that shape business practices. [9]
However, with the dilution of the EIA norms, it is regrettably the case that India is lagging behind in its necessary policies and processes. Any furtherance of support to concerned departments and agencies would lead to a dissonance between vertical and horizontal policy making the situation worse as the executive will be efficiently implementing lacking laws and policies.
Therefore, it is necessary that Indian government listens to all stakeholders and rethinks this matter.
( Written as a blog post on jusintlaw.wordpress.com )
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[1] Article 14(1)(a)
[2] Article 4(1)(f)
[3] 1996 (5) SCC 647
[4] https://sustainabledevelopment.un.org/content/documents/15836India.pdf (last visited on August 3, 2020).
[5] https://thewire.in/environment/draft-environment-impact-assessment-notification-international-law (last visited on August 3, 2020).
[6] RW Muzangaza, Normative Hierarchy in International Environmental Law: A Constitutional Reading (2016) (Unpublished L.LM Dissertation, Potchefstroom Campus of the North-West University)
[7] 1995 (2) SCC 577
[8] https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf (last visited on August 3, 2020)
[9] https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf (last visited on August 3, 2020)