By Shivam Bose
The Government of India has always been working in tandem with the Judiciary for the betterment of its people and the access to safe and clean environment is a Fundamental Right guaranteed under Article 21 of the Constitution of India. This has been upheld in multiple judgements, such as in Susetha v State of T.N where the court also stated that Article 47 and 48A would also be included within this ambit so that the State was responsible to provide pollution free drinking water to the populace. This is because we apply the Public Trust Doctrine to the use of Water resources within the country. This Doctrine has been elaborated upon in M.C. Mehta v Kamal Nath and Intellectual Forums, Tirupathi v State of A.P.
The Public Trust Doctrine states that the government is not an owner of any natural resource, but merely holds it as a trustee for the benefit of the public. Thus, even though all the surface water is under the control of the government, it still owes a responsibility to the people to ensure its proper use and management. But this does not seem to be the case for groundwater resources. Haphazard use of groundwater resources by industries has led to severe depletion of aquifers which ultimately leads to contamination of water resources through various chemicals and an increase in salinity. To remedy this problem, Section 3(3) of the Environment (Protection) Act 1986 regulates the use of groundwater by Industries and projects.
As we saw in Intellectual Forums, Tirupathi case, even though the State officials and the expert committee report said that the 2 tanks in question had been dry and unusable, the Supreme Court of India chose to apply the ‘Public Trust Doctrine’ to protect and improve the water resources of the area, whereas in Plachimada, the Coca Cola bottling factory not only reduced the water supply so that local wells began to run dry, but also the available water resources turned carcinogenic and unusable and it took the courts a little over 5 years to decide on the case, which was still a decision given in favour of the Coca Cola bottling factory and allowing them to utilize and exploit the water resources even with overwhelming evidence of natural harm. This shows that sometimes it truly depends more on the personality of the judges ruling over these issues rather than the actual established principles.
This is the exact reason why the Environmental Impact Assessment clearance has been such an indispensable tool for the prevention of unnecessary loss of environmental resources. Public Consultation has to be one of the most important parts of receiving environmental clearance because every situation and geographical condition will be different and every industrial activity/project will have an impact to its surroundings which can sometimes be best understood by the public who reside there. In Mullaperiyar Environmental Protection Forum v Union of India the Supreme Court of India opined that we, as a country, have already built so many dams that any circumstances arising from the same must already be known to us. This is exactly why there is a need for site examination and the use of the Precautionary Principle. Precautionary Principle ties in here because it essentially directs developers, project managers, and even government officials to take a more cautious approach to any activity that might lead to environmental harm.
We’ve seen in various instances how the National Green Tribunal (NGT), even after the procedure of granting Environmental Clearance, is open to hearing and examining arguments for the protection of environmental resources. NGT almost always took a deep dive in the various documents submitted for the clearance and even examined the various concerned authorities and their testimonies to understand the exact validity of the complaint filed. They took their time to come to a conclusion that would ensure that the environmental resources of the area would not get polluted/contaminated due to the mining work and that sufficient precautions were taken by the company to proceed with the project, any project of which questions had been raised by the public.
These and many more are the reasons why an Environmental Impact Assessment report is important. We live in an age where the planet is already slowly dying due to various kinds of pollution and we need to maintain a balance between development and conservation before it’s too late, and a comprehensive assessment prior to the start of a project is the most viable solution. But currently it feels like equal importance is given to development and conservation, but the NGT, and the State Pollution Control Board should realize that we are past a point where equal importance can be given. As much as development is important, conservation of our dwindling resources needs to be placed higher in the current climate.
But we see that the EIA Notification, 2020 has sought to change some, if not all of these principles. The most major change would be in the ability to call out harm being caused to the environment. The new EIA policy would limit such an act to only the organization (re: polluter) carrying out their business or the government. We, unfortunately do not live in a world where a private organization would openly tell the government and the public that they have broken environmental protection norms and laws and be pulled up to pay heavy fines, when the main objective of private organizations is profit making. A perfect example of this failure can be seen in the district of Plachimada in the year 2000. Tonnes of waste material that they just disposed of in agricultural lands without proper treatment because it was cheaper to do so and then went on a 3-year long court battle against the Panchayat of Plachimada to prove that they had done nothing wrong, even in the light of unsurmountable evidence. This is just one of many examples that show that private companies have a long history of exploiting third world countries for profit, or, rather, if we take the case of San Cristóbal de las Casas, a small town in Mexico which was completely devoid of potable water by 2013 in just 6 months of a Coca-Cola subsidiary beginning operation in the area and then pricing their own drinks cheaper than the scarce water to keep the problem from coming to light.
The other body given the ability to question the environmental impact of an operation is the government itself. Now, in theory this is a fair argument to include because the government is elected for the people and their well-being, but many times governments have vested interests and prefer development to actual environmental conservation. It is a fact that construction and mining projects bring in millions of hours of jobs for the people in the area, and it is impossible for many of us to understand how desperately a large part of the population needs these jobs to continue existing or risk starving, like they do every day.
An erosion of the rights of the public within the EIA Notification, 2020 means that the people in power have the ability to decide whose development is more important, instead of practicing a holistic approach to keep every Indian Citizen afloat. We have seen similar underpinnings in water resource law across the country where the needs of the urban cities have trumped the needs of rural India to the point where the Government and Environmental Boards have deemed it perfectly valid to sink entire villages all for the sake of progress.
The Common Cause and Ors. v. Union of India caselaid down that ex-facto environmental Clearances should not be allowed for mining projects since it resulted in environmentally damaging operations to begin before proper tests were conducted and made it clear that no projects could be started before an unequivocal clearance was granted to the concerned Body, but the EIA Notification, 2020 urges to change that practice and re-allows for clearance post the start of operation for a small fine. A small fine to a multi-billion dollar company is hardly a deterrent factor and by the time the clearance is received, we will be completely unaware if that particular project has been working under the set environmental laws because Government scrutiny has not taken place yet. This case also suggested to levy 100% of the profit as a fine for these violations, but the new draft only envisages a “small fee” which is not comparable to the older more appropriate measure.
Regardless of the numerous deficiencies within the EIA Notification, 2020, the Government and all relevant authorities are unable to realize that monetary fines are just not enough of a deterrent to multi-national corporations and the only true deterrent is to halt illegal environmental deterioration is by cutting out the very method of profit generation for these companies, which the Supreme Court of India attempted to do, but is being overwritten by the new draft EIA Notification.
 (2006) 6 SCC 543
 (1997) 1 SCC 388
 (2006) 3 SCC 549
 Manahan, Kacy. “THE CONSTITUTIONAL PUBLIC TRUST DOCTRINE.” Environmental Law 49, no. 1 (2019): 263-305. doi:10.2307/26794285.
About the Author:
Shivam is a penultimate year law student at Jindal Global Law School, Sonipat. He is deeply passionate about the issues surrounding environmental law and the growing environmental concerns all over the world. The author believes that environmental issues have become more pressing than ever, and therefore, he plans to work in this field to conserve the environment for the coming generations.