Reforming Environmental Impact Assessment in Indian Mining: Legal Framework, Loopholes, and Global Lessons

The extraction of minerals from the earth, although essential for economic growth, puts immense pressure on the environment too. The practice is usually practiced in environmentally sensitive regions and has the potential to cause negative environmental and social impacts if not performed through proper regulatory processes. For the sake of striking a balance between economic growth and environmental preservation, countries worldwide have adopted the practice of Environmental Impact Assessment (EIA). In India too, EIA has been vested with statutory power by the Environment (Protection) Act of 1986,[i] and it is supplemented by the EIA Notification of 2006 and amendments thereto.[ii]

The Environmental Impact Assessment (EIA) is a rational and systematic procedure for evaluating the anticipated environmental impacts resulting from proposed development or industrial activities, including mining, before their implementation is granted authorization. Assessment is a strategic decision-making tool that helps the stakeholders, such as decision-makers, project sponsors, regulatory bodies, and the public, understand the environmental aspects of mining operations and prepare appropriate mitigation measures. The main purpose of the EIA is to prevent potential harmful effects or mitigate them to the greatest possible extent, while, at the same time, promoting socio-economic gains.[iii]

In mining, EIAs are most critical. Mining operations – especially large-scale or open-cast mining – have the potential to ruin the environment beyond repair. Effects most commonly are land degradation, loss of forests, water pollution, loss of biodiversity, degradation of air quality, and resettlement of people. Damage is likely to be extensive and irreversible unless an environmental appraisal of stringent standards is made. EIAs are thus a precautionary and not a remedial measure.[iv]

Despite the EIA regulations and norms in India, mining continues to pose serious environmental and social concerns. Different studies, reports, and court orders have pointed out the loopholes in the EIA process – ranging from sub-standard quality reports and procedural shortcomings to lax enforcement and discredited public hearings. These loopholes are bound to result in mining clearances being issued with poor scrutiny or accountability.

This research paper presents a critical analysis of the institutional and legal framework regulating Environmental Impact Assessment of mining projects in the Indian scenario. It deals with statutory procedure, organisational aspects, and comparative practices being adopted elsewhere in the globe. It also identifies system failures and some instances of failure that hinder the EIA process from being effective. Finally, it suggests a set of realistic reforms trying to enhance openness, accountability, and sustainability of the regulation process for mining projects.

Research Questions

1. How effective is the current legal and institutional framework for environmental impact assessment (EIA) when it comes to addressing environmental and social impacts in Indian mining?
2. What are the major procedural and structural loopholes in India’s mining EIA process, and how do these impact environmental governance and accountability?
3. In what ways can international best practices in environmental impact assessment (particularly from California, Queensland, and Kazakhstan) be transposed to improve the Indian mining EIA system?

Research Objectives

1. To critically explore the evolution, range, and statutory framework of the mining EIA applicable in India.
2. To evaluate systemic gaps and procedural lapses in the Indian EIA system using case analysis and regulatory review.
3. To provide recommendations for legal and institutional reform in the Indian mining EIA system, informed by comparative best practices.

During an era of increasing industrialization and desperate environmental emergency, a reinforcement of the EIA process for mining is not merely an administrative necessity but an environmental necessity.

LEGAL FRAMEWORK GOVERNING EIA IN MINING

The EIA regime of India is rooted within an interlocked network of environmental legislations, administrative guidelines, and judicial precedents. The mining sector, due to locational requirement and nature of business of extraction of resources, faces stringent regulatory management within this regime. The juridical environment that functions within the regulation of EIA of mining activity has evolved with time and continues to suffer from major issues in practical implementation.

Evolution of the EIA Approach

The legislative framework of the Environmental Impact Assessment (EIA) process in India was with the enactment of the Environment (Protection) Act in 1986,[v] which was initiated as a response to the Bhopal Gas Tragedy that had happened in 1984.[vi] But the initial legislative notification for EIA for specific developmental projects happened on January 27, 1994, under this Act.[vii] The 1994 notification mandated mining projects crossing a specific threshold to seek Environmental Clearance (EC) from the Central Government.[viii]

Subsequently, after a decade, in reaction to the criticism of the 1994 norms, the EIA Notification of 2006 was enacted.[ix] It introduced transparency and clarity in the process and divided projects into Category A and Category B depending on size, potential, and location.

• Category A projects, owing to their magnitude, will be appraised by the Ministry of Environment, Forest and Climate Change (MoEFCC) Expert Appraisal Committee.
• Category B projects (small or medium scale) are filtered through State Expert Appraisal Committees (SEACs) of the State Environmental Impact Assessment Authorities (SEIAAs).

Mining operation falls under Schedule 1 of the EIA Notification, and it involves major and minor minerals, depending on lease area and production capacity.[x]

Relevant Legislation and Standards

EIA jurisdiction over mining overlaps with other mining and environmental legislations, including:

1. Environment (Protection) Act, 1986: Complete legislation that empowers the Central Government to act for conservation and improvement in the environment.[xi]
2. Forest (Conservation) Act, 1980: Required in case of diversion of forest land where mining proposals are being placed.[xii]
3. Wildlife (Protection) Act, 1972: For projects near protected areas.[xiii]
4. The Water (Prevention and Control of Pollution) Act of 1974,[xiv] and the Air (Prevention and Control of Pollution) Act of 1981,[xv] are subject to State Pollution Control Board (SPCB) sanction.
5. Mines and Minerals (Development and Regulation) Act, 1957: Regulates mining operations and mining leases, recently amended to stress auctioning and transparency.[xvi]
6. National Green Tribunal Act, 2010: Provides a judicial mechanism for environmental complaints and appeal against EIA orders.[xvii]
7. Public Liability Insurance Act, 1991 and DGMS circulars also indirectly influence mining operations in the areas of safety and liability.[xviii]

Author: Kaustubh Kumar, in case of any queries please contact/write back to us via email to [email protected] or at Khurana & Khurana, Advocates and IP Attorney.

REFERENCES

[i] The Environment (Protection) Act, 1986, No. 29, Acts of Parliament, 1986 (India).

[ii] Ministry of Environment & Forests, S.O. 1533(E), Environmental Impact Assessment Notification (Sept. 14, 2006) (India).

[iii] Debadityo Sinha & Sugandha Arora, Environmental Clearance in India: Procedures, Policies, and Challenges, 6 Indian J. L. & Just. 78, 81-83 (2015).

[iv] Meenakshi Sinha & R.K. Srivastava, Environmental Impact Assessment in Mining Operations: A Critical Review, 22 J. Envtl. Mgmt. & Sustainable Dev. 115, 118-122 (2020).

[v] Supra note 01.

[vi] Jamie Cassels, The Uncertain Promise of Law: Lessons from Bhopal, 29 Osgoode Hall L.J. 1, 3-5 (1991).

[vii] Ministry of Environment & Forests, S.O. 60(E), Environmental Impact Assessment Notification (Jan. 27, 1994) (India).

[viii] Id. at § 2(II).

[ix] Ministry of Environment & Forests, S.O. 1533(E), Environmental Impact Assessment Notification (Sept. 14, 2006) (India).

[x] Id. at Schedule I.

[xi] Supra note 01.

[xii] The Forest (Conservation) Act, 1980, No. 69, Acts of Parliament, 1980 (India).

[xiii] The Wildlife (Protection) Act, 1972, No. 53, Acts of Parliament, 1972 (India).

[xiv] The Water (Prevention and Control of Pollution) Act, 1974, No. 6, Acts of Parliament, 1974 (India).

[xv] The Air (Prevention and Control of Pollution) Act, 1981, No. 14, Acts of Parliament, 1981 (India)..

[xvi] Mines and Minerals (Development and Regulation) Act, 1957, No. 67, Acts of Parliament, 1957 (India), as amended by the Mines and Minerals (Development and Regulation) Amendment Act, 2015, No. 10, Acts of Parliament, 2015 (India).

[xvii] National Green Tribunal Act, 2010, No. 19, Acts of Parliament, 2010 (India).

[xviii] Public Liability Insurance Act, 1991, No. 6, Acts of Parliament, 1991 (India); Director General of Mine Safety, Various Safety Regulations and Circulars (1975-2023).