ENVIRONMENTAL IMPACT ASSESSMENT : LEGAL DIMENSIONS

P. Leelakrishnan*

ENVIRONMENTAL IMPACT Assessment (EIA) is an exercise of evaluating and predicting future changes caused by proposed projects, plans or policies to the quality of the environment. Guiding to make informed trade offs among conflict­ing aspects of environmental quality and between environmental quality and other societal objectives, EIA helps administrative agencies to choose correctly from among the various options for making environmentally sound decisions.1 Devel­opment projects or policies are either modified or abandoned when in an assess- • ment they are found likely to result in significant adverse effects upon the quality of environment. EIA is a tool not only for identifying potential damage but also for probing methods of preventing such damage.2 The process is rooted in the principle that prevention is better than cure3 and carries the warning ' Took before you leap".4 Needless to say that prevention ensures not only ecological success but also economic success since prevention is not only better than cure but also in many cases cheaper.5

A multi-dimensional decision-making

EIA is a multi-disciplinary process requiring application of a variety of knowledge and expertise.6 It involves resolution of disputes among conflicting and diverse interests in society. Manifestly, the process has to encounter several vexed questions.

* M.A. (Aligarh), M.L. (Kerala), Ph.D. (London). Professor and Dean. Faculty of Law, Cochin University of Science and Technology, Cochin - 682 022.

1. Eric L. Hyman and Bruce Stiffel, Combining Facts and Values in Environmental Impact Assess­ment: Theories and Techniques 5 (1988). Also see infra note 4.

2. The European Economic Community directive to the member countries on environmental assess­ment notes, "The best environmental policy consists in preventing the creation of pollution or nuisance at source, rather than subsequently trying to counteract their effects ..." 85/337/EEC of 27 June, 1985. 0J.L.175/40, 5.7.1985.

3. R.H. Williams, "The EIA of European Communities" in Michael Clark, et al (eds ), The Role of Environmental Impact Assessment in the Planning Process 79 (1988). "It is ... a procedure which embodies the principle that prevention is better than cure, and imposes on the developer the discipline of considering the environmental consequences of a proposed development at a time when it is in the developer's interest to pay for any necessary remedial measures in order to obtain authorization for development' *.

4. "No government wants it to be thought that when environmental issues are at stake it does not look before it leaps". Geoffrey Wandsfarde-Smith. "Environmental Impact Assessment" in Michael Bothe (Project Co-ordinator), Trends in Environmental Policy and Law 102 (1990).

5.M.G. Royston, "Environmental Impact Assessment as a Tool for Environmental Quality Manage­ment" in Desh Bandhu (ed.), Environmental Management 15 (1981).

6. M.R. Greenberg, et al, Environmental Impact Statement 15 (1978).

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First, a threshold question has tq be settled. Does the project cause significant adverse effects warranting an impact assessment? Projects which impose minor and negligible impact may not require detailed analysis or assessment. Hence t*iis preliminary study. In the United States this process is called the environmental assessment (EA).7 The EA is a concise public document providing sufficient evidence and analysis for determining whether to prepare an environmental* impact statement (EIS) which acts as the basis for EIA. An EA is followed by two conclusions either Finding of No Significant Impact (FONSI) or a decision to prepare an environmental impact statement.8 Recent legislative initiative in Canada suggests screening of projects to find out whether there are significant adverse effects.9 In England the concerned regulations list out certain projects which are subject to mandatory assessment10 and certain others which are likely to give rise to significant environmental effects.11 Obviously, the latter category requires the threshold enquiry to find out whether or not it will impose significant effects upon the environment. In the case of some such projects the issue of significant effects is a matter of judgement and qualified criteria have little relevance.12

The second question is whether the scrutiny be confined to primary environ­mental effects or it should spread to the innumerable secondary socio-economic effects such as concentration of population, loss of job opportunities, shrinking of civic amenities and increase in crime rates. This is not a threshold question but involves substantive problems that arise in the process of assessment. Illustrations are not rare. Future concentration of population in the vicinity of the site is a matter which an authority should consider before it gives the approval on industry location. Apart from the socio-economic problems the likelihood of such concen­tration would make it necessary to provide in the design of the project for measures for the safety of squatters in case an accident occurs in future. Bhopal tragedy is the best example to illustrate that absence of a well-thought out safety mechanism would result in grave consequences.13 In an instance of planning permission in Britain a condition was imposed that the site meant for light industry

7. Denah Bear, "NEPA at 19 : A Primer on an 'Old' Law with Solutions to New Problems*', 19 Environmental Law Reporter, 10060 at 10063 (1989)

8. Ibid. 9. "CANADA, Current Development", (1990) Journal oj Energy and Natural Resources Law, 304.

The screening is to be done only in the case of projects which aie not in the exclusion list. 10. See infra note 40. 11. Ibid. Certain projects may need environmental assessment it, according to the opinion of the

Secretary of State they are (1) major projects which are of more than local significance, (2) projects on a smaller scale which are proposed for paiticulaily sensitive or vulneiable locations: and (3) piojects with unusually complex and potentially adverse environmental effects, where expeit and detailed analysis of those effects would be desirable and would be relevant to the issue whether or not the development should be permitted. Circular 15/88 dated 12th July, 1988 of Department of the Environ­ment, England at 4-6. Also see Neil Hawke, Natuie Con sensation. The Legal Framew ork and Sustain­able Development 11-14 (1991).

12. Circular 15/88, id. at 6. 13. Infra notes 74, 78.

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should not be transformed into office site. This condition was justified as one for avoiding harm on the local amenity of the environment while providing for the generation of light industry jobs.14 In still another case, an Indian example, part of the land earmarked in a development plan as open space was attempted to be acquired for building a housing colony. The attempt was held to be one bringing adverse impact and hence against environmental criteria.15 The most interesting illustration is an American decision where the question was whether the scheme for a correction centre near a thickly populated and busy area in Manhattan would result in increased risk of crime in the vicinity and thus significantly affect the quality of human environment. The court directed the agency to examine this matter after appropriate hearing and file an EIS on these secondary effects.16

The third question is whether or not to consider the cumulative impacts - the impacts on the environment that result from the incremental impact of the proposed action when added to other past, present and reasonably likely future actions.17 The effects of implementing individual projects may be harmless. But when over a period of years individually minor or collectively major resources are put into a project, the effects may be totally different. The impact study should take account of these aspects.

The impact of a project upon a neighbouring country is another dimension in the environmental decision-making process. It is true that every state has the sovereign right to exploit the resources within its territory pursuant to its own environmental policies. Suppose that certain activities within the jurisdiction or control of a state are likely to cause damage to the environment of other nations. The Stockholm declaration has emphasized that it is the responsibility of every nation to ensure that this does not happen.18 European Economic Community (EEC) directive for environmental assessment also is specific on this point. Significant effects on the environment in another member state should be one of the criteria for consideration in development consent procedures.19 In the United States a presidential order issued in 1979, emphasizes the need in a more explicit and meaningful manner. It says that EIA is necessary if a major federal action significantly affects the environment of "the global commons", the environment of the "foreign nations" or the "natural or ecological resources of global

14. See Note on Carden L.B.C. v. Secretary of State for Environment, (1989) Journal of Planning and Environmental Law, 413.

15. Damodltar Rao v. Municipal Corporation, Hyderabad, A.I.R. 1987 A.P. 171. 16. Hanly v. Kleindtensh, 471 F. 2d 823 (2nd Cir. 1972); 2 Environmental Law Reporter, 20717 at

20723, 20724. 17. Supra note 7 at 10068. Also see Orland E. Delogue, U.S. Experience with the Preparation and

Analysis of EIS : The NEPA 46-48 (1974). 18. Declaration of the U.N. Conference on the Human Environment 1972, Principle 21. For the text,

see British Institute of International and Comparative Law, Selected Documents on International Law 3-5 (1975).

19. Supra note 2. Where a member state is aware that a project is likely to have significant effects on the environment in another member state, the former shall forward the environmental information to the latter (art. 7). All information including the one gathered in the consultations with other states must be taken into consideration in the development consent procedure (art. 8).

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importance."20 In National Organization of the Reform of Marijuana Laws v. United States21 it was held that the U.S. participation in the aerial narcotics eradication programme of herbicide spraying over marijuana and polly plants in Mexico required environmental impact statement examining the programme's effects in Mexico.

The expanse and multiplicity of the problems, the experience required to identify them, the expertise essential for their solution and the variety of environ­mental criteria to be considered are significant factors that place the particular agency which makes the impact assessment in a very crucial position. It may become necessary, therefore, that great care should be taken in developing the agency as a semi-independent, autonomous authority impervious to the influence of external forces but at the same time alive to the ecological mores of the land and the people. Such a development largely depends upon the nature of the EIA processes followed in a particular legal system and the functional and institutional freedom of the agencies under the system. The EIA processes vary from nation to nation. Broadly, they can be classified under two heads - the statutory mandatory model and the administrative discretionary model. In the mandatory model the scope, nature and limits of discretion and the procedure in which the impact assessment is made are governed by legislation. There may be specific legisla­tion22 or delegated legislation23 obliging the decision-maker to assess the impact or review the assessment. In the administrative discretionary model all matters are left to be decided by the administrative agency and are controlled only by executive policy, administrative discretion and political expediency. There may not be an enacted law to impose on the authority the compulsion to consider objective criteria. Certain countries may have legislation for the namesake but still are said to follow the discretionary model inasmuch as the law24 confers absolute freedom to the executive in making an impact assessment. Before deciding which model - the mandatory model or the discretionary model - is suited to a country beset with many an environmental problem but wedded to the ideals of democracy and the rule of law, it is necessary to examine the models followed by some countries of the world and the merit and demerits of the two models.

NEPA : a meaningful model

National Environmental Policy Act of 1969, called NEPA, is a remarkable

20. Executive Order 12114 "Environmental Effects Abroad of Major Federal Actions'1 signed on January 4, 1978. For the text see 17 Environmental Law Reportei 45031 (1987).

21. 8 Environmental Law Reporter, 20572 at 20575 (1978). 22. The National Enviionmental Policy Act 1969 (U.S.); The National Environment Act as amended

in 1986 (Sii Lanka); Nature Protection Act 1976 (France); Local Government (Planning and Develop­ment Act) 1976 dieland); Environmental Quality Act 1975 as amended m 1978 (Thailand); The Environmental Quality Act 1974 (Malaysia).

23. Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 (En­gland) is the best example. S.I. 1119 of 1988.

24. Environmental Protection (Impact of Proposals) Act 1974 in Australia gives discretion to the minister to decide whether or not draft EIS is to be published. Often it piompts negative approach to publication. May Htun, "The EIA Process in Asia and the Pacilic Region" in Petern Wathern (ed.), Environmental Impact Assessment: Theory and Practice 225 at 231 (1988).

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legislation in the United States representing the best example for the statutory mandatory model of environmental impact assessment. Among the notable pro­visions of the legislation, the one declaring environmental policy25 and the other emphasizing the need to prepare environmental impact statement (EIS)26 are significant. NEPA had established the Council on Environmental Quality (CEQ) to investigate and report on environmental quality, advise the President, gather information and coordinate agency activities and issue guidelines. The law does not specifically demand publication of environmental impact statement and for public participation in environmental decision-making. However, the executive orders issued after the enactment of the legislation laid down the procedures for preparation, publication and consideration of the EIS. Transforming the process of environmental impact assessment into the most powerful weapon in the hands of the public against any environmental assualt, the presidential order exhorted the federal agencies to develop the impact procedures in such a manner as to ensure timely public information, elicit views of interested parties, provide for public hearing and to encourage state and local agencies to adopt similar proce­dures.27 Active public involvement has grown in the United States as the main feature of the environmental decision-making process. Whether it relates to standard fixing in air or water quality, highway location or design, general land use planning or to the question whether a particular drug can cause cancer to laboratory animals, a public inquiry is made essential.28 Enacted as complemen­tary to other environmental legislation, NEPA helped creating a political climate favourable to the serious consideration of environmental issues.29 The impact of NEPA on environmental concerns in the United States is far reaching. The law turned out to be a lawyers' paradise and a haven for the environmentalists and public interest groups. Neither Congress nor the White House was prepared to

25. NEPA, s. 101(a). It is declared in the provision that all practicable means and measures shall be taken to create and maintain conditions under which man and nature can exist in productive harmony and to fulfil the social and economic, and other requirements of present and future generations of Americans.

26.'jy„ s. 102 (1)(C). All agencies of federal government shall include in every recommendation or report on proposals for legislation and other major federal actions 'significantly' affecting the quality of 'human environment', a detailed statement by the responsible official on - (i) the environmental impact of the proposed action; (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented; (iii) alternatives to the proposed action; (iv) the relationship between local short term uses of man's environment and the maintenance and enhancement of long term productivity; and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

27. Executive order 11514 as amended by Executive Order 11991 "Protection and Enhancement of Environmental Quality" 35 FR 4247 (March 5, 1970), 42 FR 26967 (May 25, 1977). For the text see Environmental Law Reporter (Statutes and Regulations), 45003. The guidelines by the Council on Environmental Quality lay down that the draft EIS be circulated for 45 days for public comments and review. No decision on the proposed action may be made until at least 30 days after the final EIS is published or 90 days after the publication of draft EIS whichever is later. See supra note 7 at 10065.

28. See P. Leelakrishnan, "Public Participation in Environmental Decision-making" in Leelakrishnan, IMW and Environment 162 at 166 (1992).

29. Supra note 4 at 104, 105.

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intervene in the process set in motion by the legislation. Although the courts fear to tread on matters of policy, their prescription for procedural norms in impact assessment had significant influence not only on administrative and political relationships but also on the scrutiny and correction of environmental impact assessment and statements.30 The insistence by courts on procedural compliance had the desired result. It became impossible for the decision-makers to ignore or overstep any substantive criterion in the assessment process.

NEPA has been instrumental in effectively constraining administrative behaviour in the interests of environmental values during the past two decades. Application of the concept of EIA embodied in NEPA was made successful to a considerable extent thanks to the efforts and endeavours of environmental groups who left no stone unturned in exploiting the potentialities presented by the statute. It is rightly commented that the environmental impact assessment has become the basis of a social learning process with respect to environmental policy in the United States in different times with different institutions playing different roles.31

British regulations for EIA The concept of EIA had been alien to British practice until recently before

assessment process was tailored into the scheme of town and country planning legislation in 1988.32 However, the technique of public inquiry was in existence in the laws of public health, housing, town and country planning, new towns, roads, agriculture, transport, aviation, rivers and local government.33 The schemes or plans proposed, either by the minister himself or by a local authority, are subjected to public scrutiny in an inquiry. Inspectors hear the objections and make the report; the minister decides. As the reports of the inspectors arc published members of the general public get an opportunity for examining the environmen­tal impact of schemes or plans. Pleas were canvassed in the past for a modified, pattern of environmental impact assessment.34 Official studies also were not

30. W.H. Rodgers, Environmental Law 731-33 (1977). The courts have found that "prominent indicia of a defective EIS include conclusions that are sweepingly vague, unsupported in fact, scientifi­cally indefensible, wholly unqualified, unexplained in comprehensive terms, incomplete, excessively cryptic or perfunctory, argumentative, genuinely preposterous, dependent upon stale data or biased procedures, ignore important topics, delete telling information, exude arrogance, callousness or whimsy, unresponsive to expert criticism, or demonstrate a reluctant, begrudging compliance."

31. Supra note 4 at 108. 32. Town and Country Planning (Assessment of Environmental Effects) Regulations 1988 provides

that planning permission is given only if the assessment of the project has been made after sufficient publicity and with public participations. See regulations 12,13,17 and IS. Also see infra note 38.

33. H.W.R. Wade, Administrative Law 830 (1982) "Statutory inquiries are now so common that it is unusual to find a statute concerned with planning control or with the acquisition of land, or indeed with any important scheme of administrative control, which does not provide this machinery for one or more purposes".

34. J.F. Garner, "EIS in US and UK", 1979 Journal of Planning and Enviionmental Law. 142 at 144. He suggested three things for adopting EIS to UK - (1) Projects where EIS is required are lo be defined; (2) monitoring and advisory body to check each EIS and publish its essential and more significant features; and (3) EIS is to be presented in a concise, readable and readily intelligible form.

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rare35. In 1977 a specific suggestion was made to integrate environmental impact assessment into the planning assessment and to provide the public with the opportunity to comment upon the assessment.36

The European Economic Community Directive37 of 1985 had a significant impact upon the British legal system. It was in pursuance of this directive that the town and country planning assessment of environmental effects regulations38 were framed. Britain implemented the directive not by incorporating it in a law but in a delegated legislation framed under the planning legislation. The planning processes are now re-oriented towards the compulsory need of making impact assessment.

The United States and Britain present two different types of statutory manda­tory model of EIA process. While EIA is provided by a statute in the U.S. the process is incorporated by way of regulation framed under a statute in Britain. Both examples lay emphasis on the imperative need of making an assessment of projects having a significant impact on the environment. While the NEPA pro­vides for general guidelines39 which are compulsorily to be observed when a proposal impacting on the environment is made, the British regulations in addition to this compulsion categorise developments which are essentially to be assessed and developments which require a threshold examination of the need for assess­ment.40 In the historical background of English democratic traditions which recognise people's participation and public involvement as the corner-stone of administrative process, especially at the grass root planning level, the British pattern of environment assessment shall grow to be a mechanism so strong as the EIA process in the United States albiet the absence of a NEPA type legislation.

Merits of mandatory model

The mandatory model denotes the compulsory need to make impact assess­ment before development proposal is approved, industrial licence or permit granted or project sanctioned. The law confers on the administrative agency a

35. See Royal Commission on Environmental Pollution, Fourth Report, Pollution Control: Progress and Problems, Cmnd, 5780 at 6 (1974) and Fifth Report, Air Pollution Control : An Integrated Approach, Cmnd. 6371 para 202, at 56 (1976).

36. J. Catlow, and C.G. Thirlwal, (eds.), Environmental Impact Assessment 67 (1977). 37. Supra note 2. 38. Supra note 32. According to regulation 4(2) the local planning authority or the Secretary of State

or an inspector shall not grant planning permission unless they have taken into consideration environ­mental information in an environmental statement. According to schedule 3 of the regulations a statement comprises 'specified information* such as description of the development, the likely signifi­cant effects and the mitigating measures, the data to assess the effects and a summary in non-technical language of the information. The statement may amplify itself with further information such as char­acteristics of the production process, type and quantity of expected residues and emission and alterna­tives, if any. (paras. 1, 2 and 3).

39. Supra notes 25, 26. 40. Supra note 38. The categories of development which are not exempted but which require

assessment before a planning permission is given are detailed in schedule 1. Categories of projects which are likely to have significant effects upon the environment and whose effects are to be assessed are given in schedule 2. Also see supra note 11.

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power coupled with duty to make an impact assessment. While in some countries41

general guidelines for EIA leave the development of law to take its course, in some others the law gives specific categories42 of projects that require impact study. In the latter an explicit mandate demands that those development projects are accepted only after prior EIA. In the case of those projects where there is no explicit mandate a preliminary threshold study is required to see whether they have significant effects upon the environment. If they do, EIA of those projects has to be made.43 The statutory mandate to make an environmental impact assessment compels the public or private agency initiating a proposal to apply its mind into the various factors for an environmentally sound project and to prepare an environmental impact statement (EIS). In the mandatory model the legislature chooses to place the responsibility of preparing EIS on the proponent of a development primarily for the practical reason that at the time when the project is designed, the developer knows better than anyone else.44 The environmental impact statement which should contain all matters including the cumulative and indirect effects and a short summary of information, guarantees right to informa­tion to the public.45 The EIS, if published, renders the members of the public, experts outside the government and environmental groups of the land an oppor­tunity to make their considered comments on the project. It serves not only to give notice of environmental consequences but also to verify the genuineness of the decision-making process.46 A thorough analysis is thus possible before the author­ity decides whether or not the project is acceptable and if acceptable, whether or not it should be with any modification. The substantive and procedural standards laid down in the law pave the way for judicial review which act as a check against arbitrary or whimsical exercise of discretionary powers.47 Obviously, judicial review of EIA helps establishing uniform standards for preparing environmental impact statement.48

Demerits of mandatory model

The main criticism against the mandatory model is that the environmental impact statement is so lengthy and cumbersome,49 that only an expert can understand the true impact of a proposed project, that the general public whose participation is applauded as a significant gain shall never get at the intricate questions in the statement and that their participation in the impact process shall

41. For example the United States. See supra notes 25-27. 42. Supra note 38. 43. Ibid. 44. B.J. Preston, ''Third Party Appeals in Environmental Matteis in New South Wales", 60 Austra­

lian Law Journal 216 (1986). Also see supra note 3. 45. Lothar Gundling, "Public Participation in Environmental Decision-making" in Michael Bothe

(Project co-ordinator), Trends m Environmental Policy and Law 137 (1980). 46. W.H. Rodgers, supra note 30 at 730. 47. Ibid. 48. Eric L. Hymaa and Bruce Stiffel, supra note 1 at 8. 49. Garner describes the elaborate environmental statement required under NEPA as "a very

lenghty and often dull document through which none but the most peitinacious experts can wade in order to appreciate the true impact that project will have on environment"; see supia note 34 at 143.

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be neither informed nor useful,50 Environmentalists may threaten, *'Write an EIS or we'll take you to court" and when EIS is written, they will say that it is inadequate and will take its authors to court. If they lose, they appeal and in the meantime development on planned growth is delayed.51 Though EIS may not kill a project it can be used to tie up the project for years and provide for subsequent court challenges.52 It is alleged that the emphasis on the mandatory model is only on procedures and not on substance and a defective decision on substantive matters may be exempt from legal imposition as long as it adheres to procedural requirement.53 It is criticized as a procedural burden rather than recognized as an opportunity to improve decision-making; the environmental impact statement may hardly throw any light on the alternatives when a private developer proposes a project as he may be inclined more to justify the design than to highlight the alternatives.54

Proponents of mandatory model say that these fears are out of place. In order to eliminate confusion on technicalities EIS can be drafted in an easily under­standable form.55 Professor Garner while advocating adoption of EIA in the U.K. had suggested that the impact statement would be presented in such a concise, readable and readily intelligible manner that the alleged defect of cumbersome-ness would well be removed.56 This seems to have been accepted in British planning regulation which require that a summary in non-technical language, or environmental information be appended along with environmental impact state­ment.57 The German law also obliges the applicants for licence to submit short discriptions of their projects appropriate for the public and indicative in a comprehensible manner of the potential impact of their projects on the environ­ment.58 Even in the United States, in preparing EIS, the agencies were advised to focus on significant environmental issues and alternatives and reduce paperwork and accumulation of extraneous background data.59 The plea that the mandatory

50. About ineffective public participation Joseph L. Sax remarks, "We have accepted the principle of public participation, but we have no established mechanisms to assure that members of the public have professional resources to operate as knowledgeable and informed participants'*. See "The (Un­happy) Truth About "NEPA" 26 Oklahama Law Review 239 (1973).

51. Neil Orloff and George Brooks, The National Environmental Policy Act: Cases and Materials 15 (1981).

52. Daniel Mazmanian and David Morell, "The "NIMBY' Syndrome : Facility Siting and the Failure of Democratic Discourse'' in Norman J, Vig and Michael E. Kraft. Envtroi nental Policy in 1990s 129 (1990).

53. M.R. Greenberg, supra note 6 at 27. 54. Eric L. Hyman and Bruce Stiffel, supra note 1 at 1. Failure to integrate facts and values in a

framework that can assist in making tradeoffs among multiple alternatives is noted as the reason for this disappointing experience. Again, most public policy issues are trans-scientific and cannot be resolved simply weighing objective evidence without considering subjective values.

55. Supra note 45 at 142. 56. Supra note 34 at 144. 57. Town and Country Planning (Assessment of Environmental Effects), Regulations 1988, sched­

ule 3, paragraph 2(e). 58. Supra note 45 at 142. 59,'Supra note 7 at 10063.*'Texts should be concise, clear and to the point and should be supported

by evidence that the agency has made the necessary environmental analyses"

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EIA guaranteeing public participation would overload the decision-making agen­cies with objections, and the courts with law suits, and would delay the develop­ment process is only a myth not supported by empirical data.60 On the other hand, this stands disproved in countries like the United States and Switzerland.61 Courts exercise self-restraint and will never intervene unless the requirements of the law are not observed or the decision is manifestly unjust, arbitrary, capricious and without authority of law.62 On how many occassions have courts declared that they would not substitute their judgement for that of the administrators?63 The key role played by judicial review is that it straightened the development of the concept of EIA as a reasoned objective process to be carried out on relevant criteria. Necessarily, it enlarges public participation and emphasizes the need to consider comments of experts and interested groups. Public participation in environmental decision-making process or environmental litigation goes a long way in strengthening EIA to develop as an important tool for environmental protection and management. Against the plea that ETA may fail to highlight all alternatives the judiciary has taken a pragamatic view and said that it is not necessary to ' 'ferret out every possible alternative" whether or not it is relevant to a particular instance.64

Administrative discretionary model

The discretionary model derives strength not from any law but from the discretionary powers of the administration. It may also be that certain countries do have a legislation referring to environmental impact assesment but the law gives wide discretion to the executive in the matter. The Environmental Protection

60. Raj Anand and Ian G. Scott, "Financing Public Participation in Environmental Decision­making** 60 Canadian Bar Review, 86 (1982).

61. Supra note 45 at 148. 62. In the United States, courts will ensure that there has been compliance with NEPA's procedural

requirements. But the courts will not s&t aside an agency's merit decision to allow a development to proceed unless the decision was shown to be * "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law", see supra note 30. Also see supra note 44 at 216.

63. Orland E. Delogue. supra note 17 at 58. The power of the court to require that legislative mandate be carried out does not carry with it power to substitute its judgement on the agency but review ensures prompt, orderly, fair and reasonable agency compliance with the legislative mandate. Kleppe v. Sierra Club, 6 Environmental Law Reporter, 20532 at 20438 (1976). The U.S. Supreme Court observed that the determination of the extent and effect of the cumulative environmental impacts such as diminished availability of water and air, increase in population, industrial density, climatic changes and particularly identification of the geographic area within which they may occur is a task assigned to the special competency of the appropriate agencies. So saying the court held that it had no authority to say whether the questions require a comprehensive impact assessment. For a balanced judicial approach in a country which does not follow the mandatory model, see P. Leelakrishnan ''Land and Sustainable Development in India*', Journal of Energy and Natural Resources Law 193 at 205 (1991).

64. Yennount Yankee Nuclear Corporation v. Natural Resources Defence Council Inc., 8 Environ­mental Law Reporter, 20208 (1978). "Common sense also teaches us that the 'detailed statement of alternatives* cannot be found wanting simply because the agency failed to include every alternative device and thought conceivable by the mind of man. Time and resources are simply too limited to hold that an impact statement fails because the agency failed to fenet out every possible alternative, regardless of how uncommon or unknown that alternative may have been at the time the project was approved.*' See id. at 20295.

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(Impact of Proposals) Act 1974 in Australia, introduced with the desire to make EIA a more open and public process, was designed to exclude judicial review and to confer on the ministers an absolute discretion to decide whether or not an assessment has to be made and if it is to be made what sort of enquiry has to be followed.65 In the old Federal Republic of Germany, before the EEC guidelines imposed the compulsory need to have an EIA, it was a cabinet decision that shaped EIA procedures and EIA did not have much impact in West Germany except on ad hoc basis.66 In New Zealand and in Canada it was the executive that designed the EIA which had no legislative backing as in the United States.67 In India there is no specific legislation mandating environmental impact assessment of projects having significant effects on the environment. However, the approval of the Ministry of Environment and Forests and the Planning Commission is necessary for execution of a few major projects.68 Interestingly, the adminis­trative discretionary model may vary from country to country, but all of them repose faith in the discretion of the executive or the administrative agency empowered to make the assessment irrespective of the fact that there is a legis­lation dealing with environmental impact assessment.69 This discretion extends to a wide range- from whether or not to make an assessment to what mode of inquiry is to be adopted.

Merits of discretionary model

The administrative discretionary model exhibits flexibility in decision-mak­ing taking into account the needs of society and the exigencies for approving a particular project as it is free from the pressure and tension imposed on the administrative process by an enacted law or judicial dictat. Consequently, quick, expert and timely decision may become the trump card of this model. A govern­ment may have its own policies in the areas of planning, development and energy. Formulation of policy is entirely different from the techniques with which ap­proval of specific project is given. The discretionary model is sufficiently viable to balance these two techniques. Individual projects are considered as part of environmentally acceptable policy and programme. A thoroughly evaluated project may be undesirable if it is part of an over all policy that is environmentally detrimental. In the discretionary model public participation may not be given as a matter of routine nor can it be demanded as of right. Once given, it is obviously conditioned by administrative expediency and requirement. The direction of the decision-maker allows him to consult others only if he deems it necessary to do so. Nobody imposes obligation on him in this regard. The position helps the

65. Supra note 4 at 110-12. Also see supra note 24. 66. Ibid. 67. Id. at 112-15. 68. Infra notes 84 and 85; Nay Htun, supra note 24 at 229. Also see Suraphol Sudara, *'EIA

Procedures in Developing Countries" in Brian D. Clark, et al (eds.), Perspectives on Environmental Impact Assessment 88-89 (1984).

69. For various modes of EIA, supra note 4 at 110-18; Nay Htun. id. at 225-53 and Suraphol Sudara, id. at 82-89.

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decision-making agency to keep over-enthusiastic environmentalists and activists at a distance and skillfully deprive them of any opportunity of placing hurdles in the path of development.

Demerits of discretionary model Despite its claim for the benefits of expert knowledge and official experience

the discretionary model of EIA is not free from defects. Experts within the government need not always agree in environmental questions; they may fall prey to political expediency and influence of pressure groups. Their techniques are more often influened by different types of bias than by broader set of social values,70 Information given by the experts responsible for technological assess­ment will be highly distilled and carefully selected; their decisions will be made rather on the basis of elitist judgment than from the perspectives of the general public; and these judgments will reflect the non-humanistic biases of scientific and technological orientation.71 The data on which their decisions are made may not be disclosed; relevant criteria may be discarded; interests of weaker or vulnerable groups and regions overlooked; alternative opinions expressed outside the realms of administrative process remain unnoticed and are not considered; and the law may be misapplied or not applied.72 The bureaucrats may insist that their decision is always correct and that it will never go wrong. One can only imagine the degree of enormous havoc that this big brother-knows-best attitude may cause. Under the discreionary model there is a danger that the government may com­mence the project without EIA. On demand from environmentalist or social action groups the government may issue orders for the assessment when the project is half way through. Suppose the agency making this assessment recommends for the abandonment of the project. Such recommendation will never see the light of the day as political expediency and adjustments will prevail over objective criteria. Suppose that by chance the negative report is leaked out. Even then it is not likely that environmental wisdom would override political exigencies. Instead, more reasons will then be discovered for the continuance of the project. It may be pleaded that part of the project would result in immense loss.

70. Eric L. Hyman and Bruce Stiffel, supra note 1 at 27. The authors say "Experts working in government agencies, consulting firms, or academia have their own special interests and motivations ... Informational bias may cause experts to anchor onto particular kinds or sources of information that they are familiar with due to their disciplinary perspectives, professional contacts, and access to information. Experts may give relatively too much attention to current controversies compared with long standing ones as a result of a pressure from the media or public to address prominent issues" id. at 28.

71. Cf. Harold P. Green, "Role of Government in Environmental Conflict" in Malcolm Baldwin and James K. Page Jr. (eds.), Law and the Environment 244 (1970).

72. David Huges, Environmental Law (1986). On the old practice in Britain before the country incorporated the EEC directive on environmental assessment into the law, the author makes this observation, "The British system of relying on discretionary process, rather than mandatory duties, results in law and practice being fluid. The breadth of discretion given in some cases may lead to law not being applied", id. at 96.

The author enumerates a variety of factors resulting in such an unwelcome position : lack of sufficient staff and other resources necessary to support vigorous programme of control, the great economic power of the bodies to be regulated overawing the agents of control and the absence of a solid moral consensus that a particular activity is clearly 'wrong* and needs regulation, see id. at 97.

] 992] ENVIRONMENTAL IMPACT ASSESSMENT 553

"Bhopal" : a victim of discretionary model The Bhopal gas tragedy, a typical example of a mishap born out of legal

vacuum, points to the grave consequences of the lacunae in the legal system following an administrative discretionary model and high-lights the need for a mandatory model of an open environmental impact assessment. Even in 1969 when the Union Carbide Corporation applied for licence, there were fifty bunga­lows near the site, a housing estate growing up under the Bhopal Development Authority in close vicinity and the Bhopal railway station, the area around wtoich had been a centre of commercial and trading activities, only three kilometers away from the plant.73 Carbide had to get licences and permission from several federal agencies such as Ministry of Chemicals and Fertilizers, Director General of Technological Development, Ministry of Agriculture and Central Pesticides Board and many agencies of the State of Madhya Pradesh.74 Nobody knows whether at any of these stages was there an impact assessment on the location of the factory; on control mechanisms in case of an accident; or on the secondary effects on the environment such as the possibility of squatting of migrant labour (who in large numbers turned out to be the unfortunate victims of the tragedy).75 On the other hand approval was given to a plant whose design was defective from the stand point of safety and which had reportedly been rejected by Canada on this ground.76

The absence of a computerized safety system in Bhopal plant unlike the one in West Virginia, U.S.A. plant, was explained away by a plea that such a system is difficult to maintain in the Indian environment.77 It was reported that a Carbide research project for synthesising and field testing of new controversial chemicals had been cleared by the Ministry of Science and Technology discarding the red signal by a high level screening committee of experts.78 Since the functioning of the factory, there had been reports of successive accidents.79 The powers that be did not pay heed to these reports;80 they slept over them without taking any precautionary measures. The whole project and its later working were shrouded

73. Vijay Shankar Varma, "Bhopal : The Unfolding of a Tragedy" XI Alternatives 140 (1986). 74. Alfred de Grazia, A Cloud Over Bhopal 58 (1985). 75. Supra note 73. "Inevitably the poor bore the brunt of the calamity dying hideous death. They

were the ones lived closest to the factory; they were the ones who had no telephones, so no friend or relative could warn them of the impending disaster; they were the ones who had no car or vans or scooters in which to flee from the killer gas. Instead they ran, and in doing so inhaled more of the gas and died like the pests the chemicals produced in the factory were meant to kill." Id. at 133.

76. Id. at 140. 77. Id. at 142. 78. "Rules were ignored in clearing Carbide's research projects" Indian Express, Dec. 27, 1984. 79. "MP. Government had been warned" Indian Express, Dec. 5, 1984. In December 1981 one

plant operator was killed following leakage of phosgene gas. Within fifteen days twenty four persons were affected by another leak. In October 1982 a pipeline burst and in 1983 two labourers were badly affected by the gas\

80. Ibid. Also see a series of three articles by Rajkumar Keswani. "Bhopal Tragedy", Indian Express, Dec. 6, 7, and 8,1985. To anxious questions relating to some of these accidents the concerned minister replied in the state legislature in 1982, "A sum of Rs. 25 crores had been invested in this unit. The factory is not a small stone which can be shifted elsewhere. There is no danger to Bhopal. nor will there be* *,

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in secrecy and confidentiality. The consequences are frightening. One commen­tator remarks:

The voluntary groups that rushed to the city on 3 December did what they could under the circumstances; but they were handicapped by paucity of information. The treatment of the victims was difficult because there was little knowledge of the effects of MIC. There are no direct access to operational safety manuals or occupational health records. The doctors, who were treating virtually one patient a minute, followed symptomatic treatment,81

The doctors in Bhopal, and even the one in Carbide factory hospital, did not know the antidote to MIC poison!82

Bhopal catastrophe discloses a bigger tragedy—the tragedy of a legal regime which did not provide for a mandatory environmental impact assessment. It reveals the hidden dangers of an environmental policy that does not strike at the source and prevent the evil but instead makes an attempt to cushion the impact of environmental assaults after the damage was already done. EIA rooted on the principle of prevention rather than cure should not remain alien to Indian law. It should be accepted as the guiding force in the environmental decision-making processes. The right of the people to participate in various stages of decision­making should be guaranteed and enforced. Their right to know should be recognised. Had the people, who lived in shanty towns, slums, bungalows and in other houses, previous knowledge of the dangers of MIC, many lives would have been saved. Had the scientists and doctors the correct knowledge of the effective antidotes the menace would have been reduced to the minimum.83 Bhopal does teach more lessons than one.

The malaise of the Indian legal system which did not incorporate the legis­lative mandatory model of an impact study haunted almost all administrative decision-making processes right from those at the level of the Ministry of Envi­ronment and Forests down to a state pollution control board or a local panchayati institution. The Ministry of Environment and Forests makes assessment of major projects on the basis of certain guidelines which the project authorities have to follow by submitting environmental information through filling in questionnaires and checklists with their detailed project report.84 The administrative discretion­ary model of impact assesment followed by the Ministry of Environment and Forests did not provide for publicization of environmental information relating to the particular project under stu^iT nor did it seek the assistance of the expertise of scientists and environmentalists outside the government much less the co-opera­tion of the members of the general public who were affected or benefited by the

81. Shiv Viswanathan, "Bhopal : The Imagination of a Disaster" XI Alternatives 1 J 1 (1986). 82. Supra note 73, The Union Carbide does not even mention the composition of the gases that may

have been emitted. Their medical officer kept telling even as patients were dying by the hundreds, that it was merely an irritant like tear gas, never fatal. Id. at 136.

83. For a detailed discussion, see Alfred de Grazia, supra note 74, Ch 3. Also see supra note 81 at 151-54.

84. Armin Rosencranz, et al (eds.), Environmental Law and Policy m India 211 (1991).

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execution of a project.85 It was alleged that location of industrial projects in India was often decided on parochial, regional and political considerations rather than on environmental factors.86 Such an approach to environmental questions is seen reflected in many overzealous attempts in the past. They relate to construction of dams destroying virgin forest and displacing tribal habitat,87 establishment of an oil refinery or a railway marshalling yard in a locality not far away from a marvellous monument of history,88 and to location in a residential complex of a factory which with its noisy boilers booming round the clock create public nuisance.89 The mystery attached to the procedure and resultant absence of public scrutiny, the preclusion of judicial review, the influence of political consider­ations in decision-making, the lack of sufficient help from trained experts and the belated assessment after selecting location are pointed out to be conspicuous drawbacks of the model followed in India.90 From an environmental perspective, the decisions taken by pollution control boards and by the licensing and planning authorities at the regional level and local level are far from satisfactory. The systemic constraints and inefficiency of these agencies are writ large in their decision-making, absent a statutory compulsion for an environmental impact assessment.91

In democracy it is the opinion of the people's representatives that prevails and should prevail. Members of the legislature and other leaders, committed and dedicated to the well being of the people, are anxious to bring in more comforts and better facilities to their constituencies. It is only natural that they try for quick 'development' of the region which they happen to represent. Whether the devel­opment project for which they champion is a nuclear or thermal plant to be installed in a place not so distant from a populous region or is a mega dam in a forest ousting thousands of tribal people, the likely adverse environmental impact may not bother them, if the venture brings other facilities enriching the region. It is here that the need is felt for making the political leaders more environmentally

85.D.P. Dwivediand B. Kishore, "Protecting the Environment from Pollution : A Review of India's Legal and Institutional Mechanisms", XXII Asian Survey, 897, 898 (1982); State of India's Environ­ment 1982 : A Citizens' Report 179 (1982); Darryl D* Monte, Temples or Tombs? Industry Versus Environment: Three Controversies 216-21 (1985); Shyam A. Diwan, "Making Indian Bureaucracies Think : Suggestions for Environmental Impact Analysis in India Based on the American Experience", 30J.I.L.I. 280, 281 (1988).

86. For an illustration of how such considerations led to breaking the backbone of a self-sustaining village with the advent of a fertiliser collosus, see Darryl D' Monte, id.. Ch. 7. Also see Upendra Baxi, Environmental Protection Act; An Agenda for Implementation 20 (1987): "Political intervention also produces the phenomenon of hazardous location of hazardous industries and enterprises".

87. For the controversies over Silent Valley, Tehri Dam and Narmada Valley projects, see Rosencranz. supra note 84 at 278-309.

88. Darryl D'Monte, supra note 85 Chs. 4 and 5. 89. Krishna Gopal v. State of UP, 1986 Cri.L.J.396. The facts of the case show that in giving

permission for the saline manufacturing company, the authorities did not consider the facts that the location was in a residential area. They had brushed aside the objection of the residents. It was also in evidence that one of the officers colluded with the factory owners. The Madhya Pradesh High Court endorsed the orders of the district magistrate to close down the factory and the boiler.

90. Supra note 85. 91. Shyam A. Diwan, supra, note 85 at 281, 282; Susan G. Hadden, "Statutes and Standards for

Pollution Control in India", XXII E.P.W. No.16, at 710-11. Also see supra note 28 at 170, 171.

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conscious and for waking them up to the environmental needs of the land. This consciousness will stand the nation in good stead in achieving the goal of development with its new dimensions of sustainability and prosperity for the present and future generations. An open mandatory EIA model does have an educative value. It can conscientise the people including their leaders.92 They are. made aware of the long-term harms hidden behind the short-term benefits of an environmentally malign project.

Justice of the common law filling the gaps

In countries where the mandatory model of EIA exists it is found that judicial review makes a significant contribution in evolving procedural standards and developing EIA as a strong weapon in maintaining the balance between develop­ment and the environment.93 In countries following discretionary model also courts can play a significant role in filling the gaps in law. The recent history of judicial pronouncements on environmental questions in India is an illustration. Traditionally, courts in common law countries do not enter into the substantive domains of executive discretion unless its exercise is mala fide, against law or based on irrelevant factors. They can never tolerate procedural irregularities and lapses in the field of administrative processes. In order to prevent damage to the environment the Indian courts did intervene in environmental decision-making processes. They did so on the obvious reason that there was no specific statutory mandate for EIA.

Courts were reluctant in the initial period. The proposal for the hydro-electric project in the Silent Valley, alleged to bring, if implemented, adverse impact upon climatic conditions, bio-diversity in the forest and the ecology of the area, was stalled not by a decision of the court but by a political decision rightlly made by the then Prime Minister Indira Gandhi. The project was in fact challenged before the court with the preponderance of evidence on the environmental dangers that might happen, should the project be carried out. The Kerala High Court held that those questions were a\\ examined by the government at the time of designing the project94 and were not to be reopened before a judicial forum. However, the judicial activism of later years, fostered through public interest litigation95 and supported by the liberalisation96 of the rule of locus standi, generated immense

92. See supra note 31. 93. Supra notes 30, 47 and 48. 94. For the text of the judgment, see M.K, Prasad "Silent Valley Case : An Ecological Assessment'*

Cochin University Law Review 128, Appendix (1984). 95. For the new trends of judicial activism, see Upendra Baxi "Taking Suffering Seriously : Social

Action Litigation in the Supreme Court of India" in Upendra Baxi (ed,), Law and Poverty 387-415 (1988). Also see P. Leelakrishnan "Access to Legal Service and Justice" Cochin University Law Review, 475-82 (1984).

96. S.P. Gupta v. Union of India, 1982 S.C.149. Bhagwati J. observes at 192, "If public duties are to be enforced and social collective 'diffused* rights and interests are to be protected, we have to utilise the initiative and zeal of public-minded persons and organisations by allowing them to move the court and act for a general or gro^p interest, even though, they may not be directly injured in their own rights. It is for this reason that in public interest litigation ... any citizen who is acting bonafide and who has sufficient interest has to be accorded standing".

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judicial concern and discourse on the environmental consequences of actions taken up or approved by government. The right to a clean and healthy environment - the new dimension to the right-to-life concept in article 2197 of the Constitution - compelled the courts to have a hard look at the environmental processes.98 In a few cases the Supreme Court appointed commissions to study the environmental impact of mining activities for which licences were already granted. In one case the court directed stoppage of mining activities till a decision was taken on the report of the expert committee appointed by the court.99 In another the court appointed commissions to assess the impact of mining activities. The commis­sions found that some of the activities caused ecological imbalance. The court ordered permanent stoppage of those activities.100 When it was feared that a governmental scheme of pumping up ground water, if carried out, would lead to either salinization, or exhaustion of, water in coastal aquifers, a state High Court had no hesitation to order further study of the scheme.101 These trends of judicial interference signify a remarkable development at a time when the laws of the country are silent on mandatory EIA before a licence is issued or project approved. Justice of the common law will supply the omission in a statute. Judicial decisions have on occasions counterbalanced the absence of a meaningful impact assess­ment in our legal system.

Need for mandatory model

The World Commission on Environment and Development recognises the need to tailor environmental values in development process and aim at sustainable development - the economic growth without disturbing the existing resource base but meeting the aspirations of the present without compromising the ability to meet those of the future.102 The environmental impact assessment process is a means not only of identifying potential impacts but also of enabling the integra­tion of the environment and devel ̂ pment.103 Although in achieving this object an effective EIA within q. legal frame* :>rk has a major contribution to make, the legislative mandatory model is no*, a panacea for all the ills nor is it a substitute for other essential requirements such as obtaining baseline data, strengthening the hands of enforcing agencies, making the people aware of the environmental

97. "Protection of life and personel liberty - No person shall be deprived of his life or personal liberty except according to procedure established by law".

98. Rural Litigation and Entitlement Kendra v. State of U.P., A.I.R. 1985 S.C. 652 at 656; M.C Mehta v. Union of India, A.I.R. 1987 S.C. 965 at 966; A.I.R. 1987 S.C. 1086 at 1089, 1091; A.I.R. 1988 S.C. 1037 at 1047, 1048; A.I.R. 1988 S.C. 1115; Subash Kumar \. State of Bihar, A.I.R. 1991 S.C. 420 at 424; Damodhar Rao v. Municipal Corporation, Hyderabad, A.I.R. 1987 A.P. 171 at 181; Attakova Thangal v. Union of India, 1990 K.L.T. 580 at 583; Environmental and Ecological Protection Samithi v. Executive Engineer, 1991 (2) K.L.J. 571 at 574; V. Lakshmipathy v. State of Kamataka, A.I.R. 1992 Kant. 57 at 70.

99.'Tarun Bharat Sangh v. Union of India, A.I.R. 1992 S.C. 514 at 518, 519. 100. Rural Litigation and Entitlement Kendra v. State ofU.P., supra note 98. 101. Attakova Thangal v. Union of India, supra note 98. 102. Our Common Future 40 (1987). 103. Supra note 24 at 225.

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issues, providing incentives for managing natural resources, enforcing or chang­ing existing laws and monitoring actual impacts as and when they occur.104 The state-of-art range of environmental protection and improvement measures is so wide that there can be no universal 'cook-book' recipe for assessing the environ­mental impact of development project in its entire environmental setting.105 It is also undeniable that in certain countries such as New Zealand, Australia and Canada effective discretionary models of EIA existed as viable means without sacrificing known benefits.106 But that does not rule out the need for giving EIA the legislative basis and for doing away with the maladies plaguing the discretion­ary process.

In a country with an enlightened judiciary and environmentally conscious people an environmental impact assessment legislation will be a leap forward in evolving substantive and procedural norms and in disciplining the administrative behaviour in tune with the needs of environmental justice. Sound financial back up and environmental expertise are the two factors that helped evolution of EIA process in the United States. They are lacking in India.107 The phenomenal growth of environmental action groups and the obvious concern of the judiciary are the two positive factors that can support introduction of legislative EIA model in India as they did in the United States.108 In this background an action-forcing impact legislation is found necessary - a legislation that shall compel entrepreneurs, whether they are in the public sector or in the private sector, project authorities, ministries and departments to prepare an EIS and to make an EIA in light of the comments from the public before major development projects are approved for execution. Such a legislation will create circumstances for an open environmental impact inquiry process guaranteeing effective public participation and maximum utilization of environmental expertise within the government and outside. A meeting109 of experts, held in 1987, went into the scope of the Environment Act and recommended steps for institutionalisation of environmental impact assess­ment, periodic and timely of environmental information and sufficient financial support for public participation. These measures can well be taken by framing rules under the Environment (Protection) Act 1986.no

104. Eric L. Hyman and Bruce Stiffel, supra note 1 at 17,, 105. R.G.H. Turnbull, "Environment Impact Assessment in the United Kingdom" in M.Clark, etal,

(eds), The Role of Environmental Impact Assessment w Planning Process 28 (1988). 106. Supra notes 65 and 67. 107. Shyam A. Divan, supra note 85 at 282-85. Before he looks at the possibility of introducing the

NEPA type legislative model in India with some modification, the author makes an exhaustive exami­nation of the positive and negative aspects of EIA under NEPA. He also dealt with the empirical studies on its working.

108. Id. at 288-91. 109. Upendra Baxi, supra note 86 at 9,15 at 16. 110. The preamble of Environment (Protection) Act 1986 says that the Act is to provide for the

protection and improvement of the quality of environment. S. 3 (1) conlers on the Central Goverment the power to take "all such measures as it deems necessary or expedient tor the purpose of protecting and improving the quality of environment." Ss. 6 and 25 give the rule-making power to the Central Goverment in respect of these matters.

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Evolving Indian model In view of the evils generated by the existing system, a changeover to the

legislative mandatory model is keenly felt. Should there be a specific legislation embodying the mandate for an impact assessment? Can Environment Act be amended incorporating mandatory assessment and laying down the manner and circumstances under which the assessment is to be carried out? Is it sufficient to tailor the EIA by framing delegated legislation under the Environment Act, a process similar to the one111 provided under the British town and country planning legislation?

The late eighties and early nineties have witnessed a few attempts in India towards evolving a mandatory model and a better regime of environmental protection. Environment Protection Rules 1986112 framed by the Ministry of Environment and Forests, laid down, inter alia, certain substantive matters113 that the central government may consider while it decides to prohibit or restrict location of industries or the carrying on of processes and operations in different areas. In 1987, by an amendment of the factories legislation, the states were empowered to appoint site appraisal committee114 to examine proposals of initial location or expansion of factories involving hazardous process and to advise the governments. Hazardous Wastes (Management and Handling) Rules 1989, framed under the Environment Act, provided for an environmental impact study before identifying a site for waste disposal in a state but gave this responsibility of making the study to the state government or a person authorised by it.115

In the beginning of the year 1992 the Ministry of Environment and Forests issued a significant draft notification.116 It had provisions for institutionalisation of EIA and preparation of environment management draft plan for the prevention, elimination or mitigation of the adverse impact, right from the inception of a project. Under the notification a new development project or expansion or modernisation of existing industry shall not be undertaken unless it has been

111. Notification No.S.O. 844 (E) dated 19 Nov. 1986. This delegated legislation was made under Environment (Protection) Act 1986 for carrying out the provisions of the Act.

113. Such as standards of quality of environment laid down for the area, the maximum allowable limits of concentration of various pollutants for an area, the likely emission or discharge to be prohib­ited or restricted, the topographic and climatic features and the biological diversity of the area, environmentally compatible land use, net adverse impact likely to be caused, proximity to ancient monuments, archaelogical sites, sanctuary, national park, game reserve, closed area, human settlements or places protected under any international treaty or convention and any other factors as may be considered by the central government to be relevant to the protection of the environment in the area. « . , rule 5(1).

114. See Factories Act 1948, ch. IV-A , s. 41-A. The committee shall have the chief inspector of the states as chairman. Membership consists of experts on occupational health, scientists with specialized knowledge of the hazardous process, not more than three persons deemed fit by the state government and representatives from central and state pollution control boards, Central Meteorological Depart­ment, State Town Planning and Environment Departments and from the local authority concerned.

115. Hazardous Wastes (Management and Handling) Rules 1989, r. 8 (2). 116. Notification No. S.O. 85 (E), dated 29 Jan. 1992, For the text of the notification, see 1992

Current Central Legislation, Part III, 59-66.

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accorded an environmental clearance in accordance with the procedure specified in the notification.117 The schedules give two lists of industries. Schedule I industries require clearance from the Central Government;118 schedule II indus­tries from state governments.119 Central government's clearance is necessary if certain projects under schedule II go beyond the threshold criteria.120 Any project121

proposed to be located within 10 kilometers of a reserved forest or designated ecologically sensitive area or within 25 kilometers of national park or sanctuary require central government's clearance if affected persons make a written repre­sentation against it or if it is evident that environmental imperatives and norms specified by the ministry have been ignored by the state government in giving such clearance.122 Preliminary site clearance from the central government is also necessary for four kinds of industries, namely, mining, pit-head thermal power stations, hydro-electric power projects and multi-purpose river valley projects before initiating any investigation involving cutting of trees, drilling, digging or construction of any sort, temporary or permanent.123 The project report should include environmental impact assessment report and environmental impact plan prepared in accordance with the guidelines of the Ministry of Environment and Forests. Such a detailed report should accompany an application not only for a new project but also for an expansion or modernisation of any industry.124

Consisting of experts including ecologists, social scientists and representatives of non-government organisations (NGOs), the impact assessment agencies for central government and state governments, envisaged under the notification, shall make recommendations based on technical assessment of documents and data furnished by the project authorities supplemented by data collected during their visits to site or factory and inter-action with affected population and environmental groups.125

The notification was not yet finalised when this paper was completed although more than four months had passed since the date of the draft publica­tion. This inordinate delay may be due to allegations that EIA as envisaged under the notification will erode the federal principles and slow down the pace

117. Id., para 1, at 59. 118. Id., at 61. Schedule I lists 24 industries. They include atomic power, thermal power, multi­

purpose river valley projects, railway lines involving acquisition of non-railway lands, refineries and fertilisers.

119. Id. at 62-63. The 45 cases are required to get clearance from the state goverment. Of these 21 industries or projects should be within the maximum threshold criteria of production capacity, capital cost or area. If they exceed the criteria they require central clearance (see item 24 of schedule I). Thus hydro-electric power project above the capacity of 10 MW, foundaries above the cost of Rs. 20 crore and irrigation project with a command area of more than 2,000 hectares are required to get central clearance.

120. Ibid. 121. Id., para 2 at 59. 122. Id., para 3 at 59-60. 123. Id., para 4 at 60. 124. Ibid. 125. Id., para. 4 (iii) (c) and schedule III, at 60. 63, 64. It is provided that the assessment will have

to be completed within a period of three months on receipt of documents of data from the project authorities.

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of development.126 Our quasi-federal polity permits central interference in times of crises. There is no worse crisis than the one feared to arise from the assault on environment. Only in certain contingencies the centre is conferred powers of impact assessment of projects earmarked for state clearance.127 Block­ing of development is a typical plea often raised by hawks of development and it does not have relevance in the context of a mandatory model of impact assessment in which both the values of environment and of development are considered and the demands of sustainable development met. Early finalisation of the notification is an imperative necessity.

In due course it may become necessary that the notification needs to be modified or to be substituted with an impact legislation. It is true that the validity of the mechanism of agencies envisaged under the notification is beyond chal­lenge as the object is to improve and protect the quality of the environment and the central government is empowered to appoint any authority for the purpose.128

However, its functional and institutional freedom is to be guaranteed and more representation of NGOs is needed. A participatory autonomous structure of environmental protection authority with branches was proposed in the past.129 The agency inter-action130 with affected people and environmental groups envisaged in the notification may not denote an active participatory process with public hearing and comments. The notification does not provide for a detailed and intensive study into the alternatives to the proposed action.131 Without statutory compulsion to study the scope of alternative action or site, the developer will hardly apply his mind into the pros and cons of the proposed project and alternatives and submit a faultless environment impact statement or viable envi­ronment draft plan. Without an indepth analysis into the alternatives no environ­ment impact assessment shall be complete. Necessarily, the procedure should require more detailed examination of alternative projects as is done in the United States132 under NEPA.

India is a country predominantly inhabited by the rural people. Inevitably, equal concern and attention have to be devoted to the environmental consequences of development activities in the rural sector. Confining the responsibilities of environmental assessment to ministries, departments and project authorities, or even to independent assessment agencies with branches or teams in certain parts

126. Ashish Kothaii, "Environment notification I, raising a storm of protest*', Indian Express, 10 May 1992. He observes, "Politicians appear to have seen in it a threat to their ability to woo voters by indiscriminately promising development projects, industrialists have seen dismayed that their new found freedom under Dr. Manmohan Singh is being curbed, Central Ministers have found unappetising the prospects of being policed by an 'upstart' Ministry, and state governments have seen in it an erosion of their power." Also see "Notification on environment assessment", Indian E\pre*s 10 Aug. 1992.

127. Supra notes 119, 120, 122 and 123. 128. Supra note 110. S. 3(3) of the Environment Act enables the central government, if it considers

it necessary or expedient so as to do for the put pose of the Act, to constitute any authority or authorities. 129. Supra note 109 at 9, paras 4.7, 4.8 and 4.9. 130. Supra note 125. 131. Supra note 116 at 64 Annexure, Application form. Column 1 (c). The Annexure lays down form

of application for clearance. 132. Supra notes 3 and 26.

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of the country, may not be enough to realize the ideal of 'development without destruction'. Villages and regions do not have strong voice in the politics of democratic decision-making. It is necessary that the grass root planning has to be so insulated from environmental shock and impact that the eco-systems in the villages may not be bogged down and sustainability of the existing socio-eco­nomic regimes lost. Planning has to take account of the socio-economic and ecological mores of the villages and tailor an assessment process in order to set off environmental maladies that may fall on them when a development is designed or planned. It may be true that our planners have seized of the need for incorpo­rating environmental factors and ecological imperatives into the design of devel­opment project and recognised environmental protection as an important compo­nent of the developmental strategy.133 By imposing centralised planning from above onto the self-governing units at the local levels and with multiplicity of laws of varying nature within states, India lags behind many other nations which already had comprehensive legislation embodying the benefits of planning at grass roots.

It is high time that in addition to an impact assessment legislation, we had a planning mechanism which compels the local bodies to make 'little* EIAs with the assistance of local environmental cells before they take planning decisions. Such a combined effort will ease the pitch for achieving the goal of sustainable development through better environmental regime built up from the grass roots.

133. Planning Commission, Government of India, Seventh Five Year Plan 1985-19^0. 21 and 24.