An Environmental Impact Assessment report (“EIA”) is usually the
basis of an environmental clearance. If the basis is flawed with old
data, incomplete impact study or misrepresented project facts, the
implications are unlikely to end with a procedural anomaly. Neighbors
could suffer from polluted air, falling groundwater level, noise
pollution, unsafe traffic or loss of farmland. Project developers could
be under pressure for entirely different reasons. Accusations related to
faulty EIA report can put environment clearance, funding, construction
timelines and business image into question. Government officials may
also find their appraisal scrutinized for quality control before
approval was granted. These issues are seldom black-and-white. An EIA
invariably runs into dozens of pages filled with information on air
pollution, water stress, flora and fauna, solid waste management, safety
hazards and emergency planning. A material flaw can get buried deep
within tables, attachments or engineering assumptions that most readers
wouldn’t spot. A flawed EIA report could be broadly defined as an environmental
impact assessment report which omits, studies or evaluates significant
impacts of a proposed development incorrectly. It may relate to
incorrect details about the proposed project, lack of baseline
information, missed ecological values, poor record of public
consultation or an impractical Environmental Management Plan. Whilst
trivial spelling mistakes or unclear details will not usually make a
report wholly inaccurate for legal purposes, the severity of a flaw will
often depend on whether it affected the overall environmental
assessment, hid a predictable environmental hazard or stopped members of
the public or regulators from understanding the full picture. Issues
also become more serious where the EIA report significantly downplays
projected emissions or impacts related to the project capacity, area of
land needed, water usage, waste produced or quantity of pollution it can
create. An Environmental Impact Statement which only assesses one
component of a multi-components scheme may also yield an inadequate
impact prediction. The description of the project is the starting point of every
environmental assessment. Incorrect descriptions of the scope of the
proposed activity, its production capacity, land area, machinery and
equipment, raw materials or support infrastructure can render subsequent
calculations meaningless. Understating capacity factors can lead to
lower projected values of emissions to air and water, water use, vehicle
movement and solid waste generation. If associated facilities such as
access roads, pipelines, crushers, storage yards, or workers’ colonies
are omitted, their cumulative impacts on the local area may be obscured.
Another mismatch can occur between the content of the EIA report and the
project details recorded on the application form, project feasibility
report and project presentation made to the Expert Appraisal Committee
(EAC) or State Expert Appraisal Committee (SEAC). Any of these
inconsistencies can create doubt over what was exactly appraised during
the EIA process. For people living near a project site, the issue has
tangible consequences. They may attend a public hearing with the
expectation that a certain level of activity will take place, only to
see a much larger operation built. For the developer, accusations of
misdescription could cast doubt over whether its environmental clearance
was granted based on a flawed assessment. Baseline conditions document what already exists in the natural and
human environment. It may include ambient air quality, surface water,
groundwater quality, soil conditions, noise levels, ecology, and local
socioeconomic parameters. Predictions flow directly from the assumed
baseline conditions. If, for example, ambient air monitoring stations
are located downwind of sensitive areas such as villages or residential
colonies, it won’t pick up their actual exposure to pollution. Similarly
if samples are collected in a season that doesn’t reflect the annual
conditions like dust, flooding water shortage or local wind direction
may go undetected. Baseline errors can never be overcome with modelling
software. You can dress up a dispersion model with pretty contours and
colors but the output is suspect if emission estimates, meteorological
inputs or ambient monitoring results are flawed. BK Singh Advocate has
heard many locals whose quality of life is very different from how it’s
described in the EIA. NGT Lawyers sees that discrepancy as a key issue
of fact since the decision to grant environmental clearance might have
depended on the information now in question. “A project will seldom, if ever, come up in a vacant zone,” said
advocate BK Singh. “It can be proposed next to other industries, mines,
roads, power plants, construction activities, waste sites or dense
settlements. Assessing only the incremental impact of the new project
can mask the cumulative burden that the region is already shouldering.”
An EIA may project emissions for a single power station without
considering the hot mix operating nearby. Demand for water may seem
reasonable when assessed on its own, despite multiple projects
extracting from the same groundwater source or lake. Cases of cumulative
impacts are seen near mining zones, industrial areas, overcrowded urban
axes, and riverfront projects. The public living in those areas
experience the total dust, traffic, noise and lowering of the water
table—not the individual impact of each project approval file analysed
independently. BK Singh sees fragmentation as one of the biggest red
flags, especially when multiple stages of the same project, or
interconnected facilities, are reviewed as independent developments.
“The question for us NGT Lawyers is whether the clearance process was
given a true picture of the environmental pressure the project will add
to the region.” Biodiversity cannot be the subject of a checklist box or an
ornamental chapter in an EIA report. Habitat patches, whether they are
forests, wetlands, wildlife corridors, river corridors, nesting sites or
community conserves can determine the very environmental viability of a
project,” says an EIA expert. “Often, field visits are done for a day
or two. They may not capture migratory animals or seasonal ecological
function. Some reports are heavily based on published reports and may
not actually document what exists on the ground. Eco-sensitive distances
from protected areas are often misrepresented or measured from an offset
convenient to the project boundary.” When this happens, he says, “the
impacts can be devastating. Road projects can fragment animal movements,
mining projects can disrupt drainage lines, industries can destroy
flood-buffering wetlands or wetlands integral to local communities.”
Ecological damage, once started, can be difficult to remedy once the
project breaks ground and the landscape is physically altered, he
adds. Public hearing is meant to bring local interests to the attention of
the regulatory authority. The process can go wrong if, say, the EIA
summary is not available in a language that local people understand; key
details are missing or impacted communities are given insufficient
notice. There can be a hearing, but without effective participation. It
can be held in a location that’s hard to reach. The attendance register
can be challenged. People’s objections can be condensed into brief
paragraphs that bear little resemblance to what they actually said.
Farmers can object to impacts on groundwater. Families can complain of
seasonal inundation. Shopkeepers can object to heavy-vehicle traffic. If
none of these come up or are responded to with generic answers, the
final EIA document – also known as the appraisal report – may not
reflect whether the risks of the project were actually debated. Signing
the minutes does not mean the problem goes away. How issues are
disclosed and objections addressed still matter. BK Singh, an advocate
who has participated in many hearings, tells me citizens often learn
important details about a project for the first time only after the
hearing is over. For readers interested in the larger procedural
backdrop, NGT Lawyers has provided a handy summary of the EIA
Notification and related judicial precedents. Some projects involve risks which can’t be captured by routine
pollution parameters. Storage of chemicals, generation of hazardous
wastes, blasting activities, tailings dams, fuel storage and handling
industrial operations can present risks of accidents to workers and
communities living close to project sites. A poorly conducted EIA may
be based on optimal operating practices, giving little consideration to
equipment malfunction, fire, flood or leakage events, transport
accidents, or human error. Disaster management plans may be written in
vague terms that fail to specify evacuation routes, nearby at-risk
communities or local capacity to respond. Climate risks compound these
problems. A location that appears safe based on historic flood or
rainfall data may experience different conditions when the project
actually breaks ground. Climate change impacts such as extreme heat,
extreme rainfall, coastal flooding, and water scarcity may affect not
just an operation’s overall environmental footprint, but its likelihood
of accidents. An Environmental Management Plan details how the impacts anticipated
will be mitigated. Problems occur when commitments are vague and lack
site specific detail, quantification or financial guarantee. Predicted
dust could be mitigated but there is no mention of where the water will
come from. Wastewater reuse could be committed to but where will it go
when it rains? Commitments could be made to plant a green belt but is
there any land available? Will the species planted even survive and who
will monitor this? Equally ambiguous is when mitigation is reliant on
obtaining future consent or infrastructure that is proposed but does not
exist. If a waste treatment facility, sewer network or common effluent
treatment plant doesn’t exist, then commitments to use that facility
make the environmental impact assessment document very speculative. The
difference between plans on paper and what happens on site can cause
many years of opposition. Local people can watch effluent being
discharged into nearby fields or businesses suffering when dust bowls
form even on sunny days. Local businesses can be accused of failing to
comply with conditions that were insisted upon at consent, but were
impossible to deliver. Environment (Protection) Act, 1986 (EPA) is the parent statute
governing the EIA Notification, 2006. The notification contains project
categorisation, screening, scoping and public consultation/appraisal
requirements for notified activities. National Green Tribunal Act, 20l0
invests the NGT with jurisdiction over “any substantial question
relating to the environment” interpreted with enactments mentioned in
Schedule I to the NGT Act. Appeal against certain orders and decisions
are covered under Section 16 which include certain orders relating to
environmental clearances. Section 14 and Section 15 deal with respect to
environmental disputes, compensation, relief and restitution within
their legislative purview. Violations in an EIA study can also overlap
with provisions under Water (Prevention and Control of Pollution) Act,
1974; Air (Prevention and Control of Pollution) Act, 1981; Forest
(Conservation) Act, 1980 (a.k.a Van (Sanrakshan Evam Samvardhan)
Adhiniyam, 1980) and rules pertaining to waste, hazardous material or
coastal regulation areas etc. as the project dictates. Of key
importance is the nature of the legal controversy. Contesting an
environmental clearance is not quite the same as alleging violation of
clearance terms knowingly being allowed to continue. The forums (and
corresponding limitation) and pleading can vary. Claiming a report is “false” isn’t the same as proving which
statement is inaccurate, what information was omitted, and how that flaw
affected the environmental review process. There may be multiple
scientific studies, lab notebooks, satellite imagery, maps, government
inspection reports and expert witnesses. Technical disputes can become
challenging when the underlying data is unavailable. Original monitoring
sheets, calibration details or sampling logs may not be made public,
forcing concerned parties to question only the finalized tables.
Causation is another issue. Neighbors may experience asthma, lost crops
or disappearing groundwater, but proving that injury was caused by a
specific deficiency or activity from the project can take expert
evidence. In the meantime, several pollution sources can allow every
operator to point the finger at each other. EPA defenders are under
pressure as well. Contractors and consultants may not have worked on the
same section of the EIA report, but errors can call into question the
entire approval and project. Advocate BK Singh believes inconsistency
within a document can make it appear unreliable, even when the
information is technical in nature. At NGT Lawyers, we’ve seen
environmental cases revolve around whether or not the official report
can stand up to comparisons against conditions on the ground and third
party data. Hazards to residents can include unsafe air, water scarcity, noise
impacts, crop damage, increased truck traffic and anxiety about
long-term health effects. Economically, nearby property values and
livelihoods can be threatened as well – especially near tourism
destinations, agricultural land or housing developments. Owners of
proposed projects can face uncertainty about whether they’ll receive
environmental clearance. There can be construction delays, worry from
lenders and damage to the owner’s reputation. Additional scrutiny from
regulators is also possible. Contractors, purchasers, employees and
suppliers can also be impacted even if they played no role in creating
the study. Government agencies have questions too. If glaring flaws
weren’t caught during the appraisal process, the entire system of
regulatory oversight can come into question. Accusations that
consultants cut-and-paste information or used stock language can tarnish
other parts of the evaluation. Poor environment impact assessments
affect all sides. Instead of developers against locals or “progress”
versus “environmentalists,” EIAs open too many parties to doubt.
“Eventually when the project is allowed to proceed with construction and
investment on a flawed environment record,” says BK Singh Advocate, “the
social and commercial consequences become significant.” Environmental clearance suits are often turned on dates: publication
of the clearance, awareness of the outcome, start of work and date of
continuing environmental damage. Passage of time can alter the nature
and substance of the controversy. Injured parties might not know that a
clearance and EIA report have been issued and are available for public
review. The dust, borewell or felling of trees may not be noticed until
construction is underway. By then the project proponent can claim that
construction has commenced and substantial expenditure made in reliance
of the clearance. Similarly, violations at the site years later may not
necessarily resolve the issue of whether the original EIA was flawed.
Environmental attorney BK Singh notes this issue of timing affects many
environmental cases: actual injury to the public may not be noticed
until long after the approvals that permitted the action. NGT Lawyers
thus views timing as an essential element of the conflict, even if this
article purposefully leaves aside questions of procedure. Copied text can create significant doubts about the trustworthiness of
the study, especially if it duplicates material relating to another
site, ecology or project. Legally, it matters whether what was copied
referred to a substantial aspect of environmental evaluation. Possibly. The question is whether that information was still
representative of present conditions and complied with regulatory
requirements at the time. Significant alterations in land use,
pollution, demographics or climatic conditions may render old
information misleading. Yes, if coordinates indicate that the
locations of planned monitoring equipment, project boundaries, distance
computations or ecological evaluation are incorrect. No, not if the inadequacy is insignificant. The
gravity of any public-hearing defect is judged based on whether it
deprived concerned local communities of a meaningful opportunity to
participate or withheld significant details about the project. It can. The defect might still impact the owner if
it bears on the dependability of the environmental appraisal and the
clearance granted relying on such report. Water tables fluctuate according to
season and geography. Erroneous sampling, questionable extraction
figures or not accounting for existing or nearby wells when estimating
groundwater supply can underplay pressures on local aquifers. Failing to mention and assess nearby industrial
developments can lead to an incomplete cumulative impact analysis. This
is of particular concern if air quality, water resources, traffic
congestion or solid waste disposal are already overburdened in that
area. Arguments over satellite imagery are not unusual. The
pictures may show deforestation, land-use changes, water resources,
mining operations or timeline of construction. But they must be genuine
and properly analysed in connection to the issue in question. Environmental clearances can be revoked or suspended
for violations discovered during the proposal’s implementation. However,
whether a defect in an EIA is grounds for cessation depends on the
gravity of the deficiency, proof offered, stage of the project, relevant
laws, etc. Ultimately, the decision to reject or allow the proposal lies
with NGT and not with the public alone. Disputes on environmental clearances
involve technical knowledge on ecology, study of approval files,
understanding of environmental laws, analysis of expert opinions and
locality-specific facts. A defect can draw in different datasets and
government agencies. Environmental destruction can be concealed by an inaccurate EIA
report before anybody notices symptoms on the ground. Inaccurate project
specifics, faulty baseline information, token public involvement,
overlooked cumulative effects and unrealistic offsets promises can all
contribute to poor environmental clearance decisions. BK Singh and his
NGT Lawyers treat EIA controversies as document-intensive environmental
issues where science validity, statutory compliance and actual
circumstances should be weighed carefully. Documents, timeline,
jurisdiction, and specific facts of each case determine the decision of
NGT case; no verdict is predictable.How Do
EIA Report Defects Create Problems in NGT Cases?
What Is a Defective EIA
Report?
Why Are
Incorrect Project Details a Serious Defect?
How
Does Unreliable Baseline Data Weaken Environmental Assessment?
What Happens
When Cumulative Impacts Are Ignored?
Why
Does Incomplete Biodiversity Assessment Cause Legal Concern?
Can a Weak
Public Hearing Affect the EIA Process?
How
Do Inadequate Risk and Disaster Studies Create Hidden Dangers?
Why
Is an Unrealistic Environmental Management Plan Problematic?
Which Laws
Make EIA Defects Relevant Before the NGT?
Why
Do EIA Defects Create Evidentiary Problems in NGT Proceedings?
How
Can Defective EIA Reports Affect Communities and Businesses?
Why Do Delays
Make EIA Disputes More Complicated?
Frequently
Asked Questions About EIA Report Defects
How can copying cause a defect in an EIA report?
Can old environmental information be acceptable?
Could wrong coordinates be detrimental
to an NGT petition?
Does an
improper public hearing mean environmental clearance is
invalid?
Does error by an EIA consultantmatter to the project
proponent?
Why is groundwater
data commonly contested?
Should neighbouring industrial projects have been considered in
an EIA?
Are disagreements about satellite pictures common in EIA
matters?
Can every defect in an EIA lead to a cancellation of the
clearance?
What makes EIA related
legal issues complex?
Final Thoughts
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