The Access Initiative

Topics: Environmental Impact Assessment

President Trump’s First Week: Is Environmental Democracy in Jeopardy?

During the new president’s first week in office, the Trump administration took actions that could threaten inclusive decision-making on environmental issues—what we refer to as “environmental democracy”—in the United States:

  • On Monday, the administration instituted a “media blackout” at the Environmental Protection Agency (EPA), prohibiting staffers from publishing news releases, blogs, social media posts and new web content.
  • Similar actions were taken at other agencies, including curtailing of communications at the Department of Agriculture, Department of Interior, Department of Health and Human Services and with the National Parks Service.
  • On the same day, the president stated that he plans to “cut regulations by 75 percent, maybe more” to make it faster for businesses to move projects forward.
  • On Tuesday, he issued an executive order to revive the Keystone XL and Dakota Access pipelines, without consulting with the State Department and bypassing further public consultations.
  • On Wednesday, after proposing and then rescinding a directive to remove EPA’s climate change webpage, a spokesperson for the EPA transition team announced that political appointees must review scientific findings on a “case-by-case basis” before releasing them to the public, including routine pollution monitoring data.
  • These actions could not only undermine the government’s ability to protect the environment and public health, but they also erode the foundations of good governance: transparency, public participation and accountability.

Transparency

Citizens can neither understand nor participate in environmental decision-making without having access to objective, scientific information and data. Sound and effective policymaking within government should be based on the best possible information and evidence. Further, the free flow of information is essential for allowing people to reveal wrongdoing and hold officials to account. As a public institution, the EPA is legally required to provide access to critical environmental information, such as air and water pollution monitoring reports, Environmental Impact Assessments, compliance and enforcement data and climate data. Doing so ensures that Americans “have access to accurate information sufficient to effectively participate in managing human health and environmental risk.”

Beyond communications, it is problematic to require that political appointees review the agency’s scientific data—including regarding climate change—before releasing it to the public. This will be the first time that an administration’s appointees will screen such studies.

This directive undermines the EPA’s established Scientific Integrity Policy, which “prohibits all EPA employees, including scientists, managers, and other Agency leadership, from suppressing, altering, or otherwise impeding the timely release of scientific findings or conclusions.”

The administration’s actions also obstruct an integral component of democratic policymaking. To meaningfully engage in political processes, citizens must have access to accurate information that has not been editorialized or modified. Only with unbiased facts can they understand and shape key decisions that impact their local environments.

Public Participation and Accountability

Public participation is the bedrock of environmental democracy; yet the new administration’s plans may undercut this pillar of good governance. While meeting with business leaders during his first day in office, President Trump declared that the government must eliminate regulations and expedite permitting processes for large development projects. Effective, efficient rule-making should be a goal for policymakers, but it must not come at the cost of public participation.

Many of the EPA’s and other agencies’ procedures—such as air and water discharge permits, waste cleanup plans and Environmental Impact Assessments—require a public consultation process. Soliciting public participation allows policymakers to consider the needs of all stakeholders who may be affected by projects like oil and gas extraction and mining and road construction, and enables them to better identify unintended consequences. Long-term, policies developed with community input often get more public support and less resistance because citizens perceive these decisions as fair and legitimate.

The Dakota Access pipeline project showcases the importance of public participation. In July 2016, the Standing Rock Tribe filed a complaint against the U.S. Army Corps of Engineers, the agency that grants permits needed to construct the pipeline. They claimed that, by crossing under the Missouri River, the pipeline posed a serious threat to the community’s clean water and sacred burial grounds. Their complaint further alleged a breach of the National Environmental Policy Act and the National Historic Preservation Act on the grounds of failure to consult with affected parties, adverse effects on water health and failure to assess scared sites.

In December, following weeks of public protests, the Corps decided it would delay the project in order to conduct an Environmental Impact Statement, which would explore alternative routes for the pipeline. This result shows the power and necessity of public participation—people’s involvement is critical for protecting communities and for finding the safest, most appropriate options for infrastructure projects.

But on his second day in office, Trump ordered the Corps to “review and approve [the pipeline] in an expedited manner,” without considering alternative routes or conducting a public consultation. His directive effectively thwarts the public participation process to resolve what has become the biggest joint protest of Native American Indian tribes in decades.

The Way Forward

The United States has long been recognized as a global leader in establishing rights to environmental information, to accurate and objective scientific resources, and to public participation in decision-making processes. It currently holds the third-highest ranking on WRI’s Environmental Democracy Index, which scores countries on their ability to provide these fundamental rights.

The EPA and other government agencies’ mandate to use science to inform policies, to conduct extensive public consultations, and communicate openly with people plays a foundational role in protecting people’s health and the environment. Pursuing and sharing scientific data and evidence is integral to this process. The Trump administration, its agencies and their staff have an obligation to protect and continue America’s strong leadership on environmental democracy.

#GreenAlert

#GreenAlert encourages active citizenry, by providing the public with actionable information about development plans, along with tools for citizens to formally engage with the public review and policy formation processes and to connect with citizen or watchdog groups to lobby for citizen inclusion in decision-making processes.

#GreenAlert encourages greater transparency among governments and corporations by reducing secrecy in the decisions that are made about the use of natural resources.

#GreenAlert encourages greater public discourse and greater public participation in development issues, by creating demand-driven platforms for public comments and sharing of expert research or opinions on development by the general public, experts, civil society, media and community members.

Recommendations of the High Level Committee to Review Environmental Laws in India

By Preetadhar (Posted: November 25, 2014)

Soon after the election of the new Government, a “High Level Committee” was constituted to review a list of Acts administered by the Ministry of Environment, Forests and Climate Change (MoEF&CC), namely: – Environment (Protection) Act, 1986 – Forest (Conservation) Act, 1980 – Wildlife (Protection) Act, 1972 – Air (Prevention and Control of Pollution) Act, 1974 – Water (Prevention and Control of Pollution) Act, 1981

The Committee was chaired by T.S.R. Subramanian, a former Cabinet Secretary, and comprised three other members, a retired judge of the Delhi High Court, former Secretary of the MoEF&CC and former Additional Solicitor of India.

After approximately 3 months of its constitution, and holding some regional Meetings, the Committee submitted its recommendations to the Government. We have been able to access a summary of the recommendations, which provides an insight into the possible direction of reform of framework of environmental laws in India.

Summary of Recommendations

  1. Identify and pre-specify ‘no go’ forest areas, mainly comprising “Protected Areas” and forest cover over 70% canopy.

  2. MoEF&CC to define the term ‘forest’.

  3. Offer economic incentives for increased community participation in farm and social forestry by way of promoting and proving statutory safeguards to ‘treelands’ as distinct from forest.

  4. Plantation of approved species on private lands for compensatory afforestation with facility for ‘treeland’ trading.

  5. Revise procedure for clearance under Forest (Conservation) Act to reduce the time for granting clearance, without compromising the quality of examination. For linear projects it is recommended that The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 needs amendment to consider removal of the condition of Gram Sabha approval.

  6. The compensatory afforestation (CA) guidelines be revised; CA on revenue land to be enhanced to 2:1 as against 1:1 at present; CA in degraded forest land be now fixed at 3:1; the Net Present Value (NPV) should be at least 5 times the present rates fixed. An appropriate mechanism to be created to ensure receipt of the CA funds, and their proper utilization, delinking the project proponent from the CA process, after he obtains other approvals, and discharges his CA financial obligations.

  7. The quantum of NPV for compensatory afforestation needs to be sharply increased. A reliable mechanism for ensuring that CA is actually implemented, utilising either private or forest land, needs to be put in place.

  8. Schedule 1 to be amended to include species likely to be threatened by illegal trade. An expert group should review the existing Schedules and address discrepancies relating to several species and sub species.

  9. Regarding the issue of tackling damage to agriculture and farmland, the MoEF&CC may issue circulars to all states apprising them of the legal position, suggesting that they may take appropriate action based on legal provisions.

  10. Preparation of Wildlife Management plans should be made mandatory and a provision to this effect inserted in the Wildlife Protection Act.

  11. Amend the Wildlife Protection Act [Section 26A sub section (3) and section 35(5)] so that permission from the Central Government would only be necessary when the State Government proposes to reduce the boundaries of an existing protected areas.

  12. Manufacture and possession of leg and mouth traps should be completely prohibited, except where they are required for visual display for educational purposes.

  13. Officers entrusted with the task of settlement should be given minimum tenure of 2 years. Regular review of such work should be done to ensure completion within time.

  14. ‘Expert status’ to be given to the forensic facility of Wildlife Institute of India (WII), after suitably strengthening it.

  15. Amend provisions of the Wildlife Protection Act [Section 50 and 55] to provide for adequate and purposeful delegation appropriate for faster and better prosecution in respect of a wildlife crime.

  16. Authorise officers of the Wildlife Crime Control Bureau under the MoEF&CC to file complaints in Courts.

  17. Add Polythene bags and plastic bottles as “injurious substances” and ban their use inside sanctuaries by amending the Wildlife Protection Act

  18. MoEF&CC to take immediate steps for demarcation of eco-sensitive zones around all the protected areas; States may be asked to send proposals in a time-bound manner.

  19. Delegate the powers to approve applications for bona fide observations research, through photography, including videography to the level of Park Director after verifying the credentials.

  20. The Schedules should provide appropriate provision for taking into account the needs of local festivals, subject to no harm or injury to animals.

  21. Proposals to revamp this project clearance / approval process.

  22. Create National Environment Management Authority (NEMA) at Central Level and State Environment Management Authority (SEMA) at the state level as full time processing / clearance / monitoring agencies.

  23. Proposed composition, functions and responsibilities of NEMA.

  24. Proposed composition, functions and responsibilities of SEMA.

  25. Proposed revised project approval process envisages ‘single window’ unified, streamlined, purposeful, time bound procedure.

  26. Special treatment for linear projects, power / mining and strategic border projects.

  27. Review of A/B category units, to delegate a large number brought under the purview of SEMA.

  28. The present monitoring process, exclusively based on physical inspection should be strengthened by induction of technology, measuring instruments incorporating latest improvements; the standards setting and verification systems need to be tightened, to ensure all violators are identified.

  29. (i) Create a new ‘umbrella’ law- Environmental laws (Management) Act (ELMA) – to enable creation of the institutions NEMA and SEMA. (ii)Induct the concept of ‘utmost good faith’, holding the project proponent responsible for his statements at the cost of possible adverse consequences

  30. The new law to prescribe new offences, as also for establishing special courts presided over by session judge. ‘Serious offences’ as defined to attract heavy penalties, including prosecution / arrest.

  31. Abatement of central and State Pollution Control Boards on creating of NEMA/SEMA.

  32. Suggestion for incorporation of noise pollution as an offence in Environment Protection Act.

  33. Procedure for appeals- creation of an appellate tribunal.

  34. Judicial Review role of National Green Tribunal.

  35. (i) Establish a National Environment Research Institute, through an Act of Parliament. (ii) Identify specific technical institutions / universities in India to act as technical advisors to the proposed NEMA/SEMA and other environmental enforcement agencies, to provide credible technical back-stopping for management of the environment.

  36. An Indian Environment Service may be created, as an All India Service, based on qualifications and other details prescribed by MoEF&CC/DoPT/UPSC.

  37. Encourage specialization in the Indian Forest Service in various aspects of forests and wildlife management, among the members of the service, as well as familiarity with all aspects of management of environment.

  38. The MoEF&CC may like to undertake a comprehensive review of departmental forces management policies, practices and procedures, to initiate wide-ranging improvements and reforms. This preferably should not be an internal exercise, and should include independent knowledgeable experts from India and abroad, as well as qualified researchers.

  39. The MoEF&CC may consolidate all existing EIA notifications/ circulars/ instructions into one comprehensive set of instructions. Amendments or additions may normally be done only once a year.

  40. The MoEF&CC may arrange to revamp the Environment Protection Act, by inducting relevant provisions of the Water Act, 1977 and the Air Act,1981; the latter two could be repealed, when the revamped EP Act, 1986 comes into force. This exercise may be done keeping in view the provisions of the proposed Environment Management Act.

  41. Create an Environment Reconstruction Fund for facilitating research, standard setting, education and related matters.

  42. (a) While overall responsibility vests with the ministry, the State Governments and the local bodies will play an effective role in management of the environment. (b) The Government should provide dedicated budgetary support for environmental programmes as a part of each development project in all the sectors

  43. Creation of a comprehensive database, using all instruments available, on an ongoing basis, in respect of all parameters relating to environment

  44. Environmental mapping of the country, using technology, should be undertaken as an ongoing process.

  45. Identification & recovery of environmental reconstruction cost relating to each potentially polluting unit should be built in the appraisal process.

  46. Rework the system of empanelment of ‘consultants’.

  47. A ‘green awareness’ programme needs to be sponsored, including issues relating to environment in the primary and secondary school curriculum

  48. MoEF&CC should prepare regional plan for carrying out remediation of polluted sites in consultation with the State Governments and enabling provisions should be incorporated in Environment Protection Act for financing the remediation task.

  49. Municipal Solids Waste (MSW) management has not been given requisite attention hitherto. New system and procedures for handling MSW need to be in place early for effective management of MSW and with accountability. Cities should set a target of reaching 20% of current level in 3 years time to work out a mitigation plan

  50. Concerted multi-pronged effort to not only to contain, and improve the situation of deterioration of air quality by vehicle emission.

  51. Encourage the use of science and technology, including by the approval and enforcement agencies.

  52. Finalise the CRZ demarcation, and bring it into public domain.

  53. In view of the key role played by the power sector, as also mining of various minerals in national development, NEMA may have a suitable cell, with specialisation, to speedily deal with environmental approvals in these sectors, with due regard to environmental considerations.

  54. All specified type of units would employ fully qualified technical personnel to manage their pollution control / management equipment, and to keep the emission levels within prescribed limits.

  55. MoEF&CC may consider reworking standard setting and revising a system of financial penalties and rewards to proceed to a market-related incentive system, which encourages ‘green projects’.

Environment Clearance for Thermal Power Plant in India Quashed for Inadequate Environmental Impact Assessment

By Preetadhar (Posted: November 17, 2014)

On 10 November, 2014, in a significant decision, the National Green Tribunal (NGT) – the specialized environmental court in India – quashed the Environment Clearance (EC) for the 3600 MW thermal power plant of IL&FS in Tamil Nadu. The Tribunal held that the project proponent had a “casual approach” in conducting the cumulative impact assessment of the project, which was based on incomplete information and “non-existent” standards. It also held that the EC was granted by the Ministry of Environment and Forests (MoEF) without application of mind.

The project is proposed to be a developed as a part of a Petroleum, Chemicals and Petrochemicals Region (PCPIR) with a port, several industries and associated development of infrastructure. Further, the area – proposed in the close proximity of Cuddalore Industrial Area (SIPCOT) – has a high Comprehensive Environmental Pollution Index (CEPI) index, and was, until recently, classified as a “critically polluted area”. It is also located close to the Pichavaram mangroves – an ecologically fragile ecosystem. However, although the Environment Impact Assessment (EIA) requires a study of the cumulative impact of the project, the project proponent had mentioned that there would be no cumulative impact, and did not provide any information of other “existing or planned projects” in the area. In light of this, in 2012, the NGT had stayed the EC and directed the project proponent to conduct cumulative impact assessment studies.

Following this, the project proponent conducted a “Rapid Cumulative Impact Assessment” within a period of only 2 weeks. No baseline data was collected and a large number of projects were not considered. “The project proponent considered the data available for eight industries only whereas … there are at least 45 industries in 25 km radius of the project and no reasons have been given as to why the same have not even found a mention in the study”, observed the Tribunal. Moreover, it was claimed that future projects are not even required to be considered to be part of the CIA. Ironically, the “Technical EIA guidance manual for thermal power plants” prepared for the MoEF by IL&FS Ecosmart Ltd, a sister concern of the project proponent itself, specifically mentions that all direct and indirect impacts of all reasonably foreseeable projects are required by be taken into account. Most shockingly, the standards used for the entire study were the “non-existent” National Ambient Air Quality Standard (NAAQS), 2005. The relevant standards are NAAQS 2009, which replaced the earlier NAAQS 1998. There is nothing known as NAAQS 2005. On the basis of these findings, the Tribunal categorically held that the Cumulative Environmental Impact Assessment was inadequate and erroneous.

The judgment also underlines the fact that a careful scrutiny of the EIA report by the Expert Appraisal Committee (EAC) and the MoEF is an equally important part of the EIA process. The Tribunal was severely critical of the “casual approach” of the EAC. The “expert” appraisal committee approved the project without any application of mind. So much so, they did not even notice the fact that the entire study was conducted on the basis of non-existent standards and several pollutants and industries were inexplicably omitted. The MoEF, too, was no better. Only certain cosmetic and irrelevant conditions were imposed and “the MoEF did nothing more than merely reiterating the conditions previously stipulated … in different language”, observed the Tribunal.

The judgment marks a watershed moment in environmental litigation in India. Through its categorical findings, it brings to light the systemic failure across several levels – the cost of which is reflected in severe environmental degradation. This lays the groundwork for a better quality of EIA as well as scrutiny of EIA by regulatory authorities.

The judgment can be accessed at http://greentribunal.gov.in/Writereaddata/Downloads/50-2012(PB-I)(APL)-10-11-2014.pdf

Damming Up Multilaterals

By Sophia Robison (Posted: February 19, 2014)

In January, Congress passed the massive House Omnibus Act and sent it to President Obama, awaiting his signature to be enacted. The omnibus outlines the United States budget for the coming year, which totals to over one trillion dollars. The act has some very interesting and far reaching elements, but, most surprising among them, is the large amount of environmental legislation throughout the document.

There’s the obvious changes in department funding. It cuts 1.7% of the Environmental Protection Agency’s (EPA) budget, while it boosts the Department of Energy’s (DOE) budget by 4.8%. The Department of the Interior (DOI) will be getting a slight increase in its overall budget, with most of the new money going to the Bureau of Land Management (BLM) and the National Park Service (NPS), transfering funds away from the Fish and Wildlife Service (FWS). The National Oceanic and Atmospheric Association (NOAA) also had some cuts, leaving them at levels lower than both the White House and the Senate had asked for .

The budget also included a number of interesting riders, the effects of which will easily be seen and felt at home and abroad. Some of these riders include the stay of execution for incandescent bulbs and the weakened limits on investments in overseas coal projects, but the most interesting provision among them provides an interesting blend of human rights, environmentalism, and foreign aid: the change in U.S. policy on large, hydroelectric dams.

“Under the new provisions, the United States will be required to vote against multilateral funding for large-scale hydroelectric projects in developing countries, as well as push for redress of rights violations resulting from development initiatives by international financial institutions,” said Carey Biron of the IPS. “In addition, Washington will be barred from offering any bilateral assistance that could facilitate certain rights abuses, extractive industries or industrial logging in primary tropical forests.”

So what does this means for the future development of large dams around the world? “Any large hydroelectric project would be subjected to serious scrutiny. History is replete with large dams financed with public funds resulting in cost overruns, environmental problems, forced displacement, and electricity that doesn’t benefit the local people who need it most,” said Tim Rieser, foreign policy aid to Sen. Patrick Leahy, the senator who requested the inclusion of the provision .

In both The World Bank (WB) and the International Monetary Fund (IMF), the United States holds upwards of 15% of all voting power; they also have a strong vote in the North American Development Bank (NADB) and the Inter-American Development Bank (IDB). In the United States, alone, there are 9,265 registered large dams, making up approximately one-quarter of all large dams in the world. With all of this influence, past investment and plans for future installations around the world, the impacts will surely be widespread, but the US government has yet to respond to the new provision. “There isn’t a lot to be said at this point,” wrote Margaret Young, State Department spokeswoman, in an email to Circle of Blue.

However, International Rivers’ Policy Director Peter Bosshard seems to think there is. “At a time when better solutions are readily available, the Congressional decision supports a shift of public funding from large, often destructive hydropower projects to decentralized renewable energy solutions which are more effective at reducing energy poverty and protecting the environment, said Bosshard. Will the new provision initiate any lasting changes amongst the human rights, environmental and foreign aid communities or will it simply dam up multilateral hydroelectric initiatives? It appears that only time will tell.

Citizen Enforcements of Procedural Rights in the Environmental Impact Assessment Process in Belize and Jamaica         

Published: 2011

The inclusion of procedural rights of access to information, public participationand access to justice in environmental decision-making are recognized in international treaties and soft law agreements as central to the sustainable development agenda. Since the 1990s, a number of Caribbean countries have enacted environmental legislation requiring the preparation of an Environmental Impact Assessment (EIA) prior to permitting significant developments . The extent to which procedural rights have been included within EIA provisions however is varied. There has been little analysis of the impact of the use by citizens of procedural rights in these EIA processes.

This paper examines the legislative framework for EIAs and citizen enforcement of procedural rights in the decision-making process for proposed developments in Jamaica and Belize. The legislative frameworks adopted by Belize and Jamaica are significantly different; with the former enacting comparatively comprehensive regulations to guide the EIA process and the latter dependent on internal guidelines. In both countries there has been documented failure in law and practice to deliver effective procedural rights. A review of recent court decisions in Belize and Jamaica illustrates the value of citizen enforcement as a means of safeguarding procedural rights in the conduct and review of EIAs as well as demonstrating the failure in compliance.