India’s Lost Opportunity To Recognize The Principle Of Transboundary Environmental Impact Assessment

first_imgColumnsIndia’s Lost Opportunity To Recognize The Principle Of Transboundary Environmental Impact Assessment Praharsh Gour27 May 2020 8:33 AMShare This – xA consistent remark in the Prime Minister’s speeches has been about “New India” paving way for development and progress. However, the Ministry of Environment, Forest and Climate Change’s (MoEF&CC) new draft Notification for Environmental Impact Assessment (EIA Notification 2020) has been anything but progressive. What’s new in this draft notification is the inclusion of term…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginA consistent remark in the Prime Minister’s speeches has been about “New India” paving way for development and progress. However, the Ministry of Environment, Forest and Climate Change’s (MoEF&CC) new draft Notification for Environmental Impact Assessment (EIA Notification 2020) has been anything but progressive. What’s new in this draft notification is the inclusion of term “border area” in the definition clause. The clause defines such areas to be the ones falling within the vicinity of 100 kilometers from the border of its neighbors. This inclusion, for the first time in twenty six years, has tried to draw a correlation between EIA conducted within the Indian territory and its neighboring states. However, the optimism wears out post the definition clause of the policy. If one dives further in the notification, one will realize that post the technical jargons and terminologies, this new term is specified to expressly exempt public consultation on linear highway and pipelines projects falling in such areas. It is not surprising to find that the notification is also reticent about the obligation to notify or consult any other state in case of transboundary harm arising from the activities conducted within India. Conceptually, EIA is assimilated with the duty to maintain a balance between development and ecological interests. It tends to act as a checking mechanism in defense of those who are affected the most by such projects. However, today such a protectionist outlook of the government with regard to its EIA obligations begs for an intervention. The EIA Notification 2020 not only deprives EIA of its responsibility to consult the affected people, by reducing the period for public consultation, but is also ignorant of the development around EIA in international environmental jurisprudence. Though not defined anywhere as such, the principle of Transboundary EIA finds its place in Principle 21 of the Declaration of the United Nations Conference on the Human Environment, 1972 also known as Stockholm Declaration. The Declaration dictates the customary principle that it is the right of a state to exploit its own natural resources, so long its activities do not cause damage to environment of another state. To fulfill this obligation, it is essential that states take up due diligence and cooperate among themselves. However, the Stockholm Declaration is silent about the obligation to conduct EIA, which has been expressly mentioned in the Declaration on Environment and Development, 1992 or the Rio Declaration, 1992, under Principle 17 separately. It was the International Court of Justice (ICJ) which viewed transboundary harm principle and EIA from one lens, for the first time. The court in the Pulp Mills on the River Uruguay (Argentina v. Uruguay) labelled the principle of Transboundary EIA to be a part of “general international law”. It held that the EIA must be conducted by state of origin, when there is a “risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource.” (para. 204). Interestingly, India adopted its first EIA Notification, post Rio Declaration in 1994 which was bereft of any provision for Transboundary EIA, understandably because of absence of general state practice to that end then. Since the last notification of 2006, the global regime pertaining to EIA has undergone multiple progressions. From development in modes of technology and communication in last 14 years to specific development in principle of Transboundary EIA, the global environmental law regime has come a long way since 2006. The government must understand that incorporating the same orthodox ideas and methods regarding the EIA sans the international development pertaining it will reflect poorly on its reformist image. Therefore, it would have been wise on its part had it capitalized on chance of adopting the principle of Transboundary EIA in the draft notification. One may argue that the government may still implement the Transboundary EIA principle on a project-to-project basis, with specific treaty provisions dedicated to address this issue every time it undertakes a project in the vicinity of its borders. Regardless of how appealing this resort to old trick may seem one cannot ignore that such a method is not just time consuming, repetitive and stagnant but also lacks clarity which could possibly have been attained by making a simple provision in the domestic legislation in the first place. What seems to be unbeknown to the MoEF&CC, is that the implementation of transboundary EIA mechanism in domestic legislation isn’t an alien concept. For instance Directive 2011/92 of the European Union under Article 7 requires the member country to forward an EIA on project likely to have a significant effects on environment of another member state. Similarly, the Impact Assessment Act, 2019 of Canada went a step further and subjected the projects with significant transboundary harm to the same domestic law, as applicable on projects with domestic ramifications. But it must also be kept in mind that such instances are limited in number and are often empowered with milk teeth to prove their mettle. Therefore, the question arises as to how can a country implement a robust mechanism for Transboundary EIA? It is an amusing coincidence that the solution to this problem was offered by an Indian Judge serving in the ICJ. Judge Dalveer Bhandari in his separate opinion on the Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica)/ Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) opined that prior to conducting EIA, states must categorize industries. They must identify the ones for which transboundary EIA shall be mandatory and should pay due regard if such industries are located near nation’s border or if emits such pollutants which may pose as a risk for neighboring states (Para. 42). Post such identification, the states must then identify the situations wherein the obligation for conducting EIA can be exempted for instance- occurrence of a natural disaster, nuclear disaster, etc (Para. 43). Once the above procedural mechanism is in place, the state may then share a detailed EIA report prepared by it or shared with it by the project, with the affected state. But the question still persists. Does India need such a ‘fancy’ mechanism to keep its projects in check? For starters, India cannot shy away from an obligation which is regarded as a part of general international law. India is signatory to the 1992 Rio Declaration which expressly prescribes for principle against Transboundary harm and EIA and therefore is bound by the treaty and general international law obligations. The geographical location of India and rapid rate of undertaking development projects in the vicinity of its border also adds on to the need of having a general and consistent EIA mechanism in place. Furthermore, lessons from Sethusamudram Ship Channel Project and Pancheshwar Multipurpose Project may corroborate to this need. The primary contention as raised by both Sri Lanka and Nepal, respectively, in the above disputes has been the lack of due diligence and information sharing on part of India, which could have been easily resolved had India had a Transboundary EIA regime in place. Owing to the aforesaid reasons, it is advisable that India implement a singular and certain mechanism to implement this principle soon enough. It had a chance by placing it in the EIA notification 2020, however, the categorical omission by the government of recognizing this international obligation tells us yet again that we are still to learn the lesson. Subscribe to LiveLaw, enjoy Ad free version and other unlimited features, just INR 599 Click here to Subscribe. All payment options available.loading….Next Storylast_img read more

Purple & Bold: How should Lakers exercise load management with their stars?

first_imgEditor’s note: This is the Friday, Nov. 8 edition of the Purple & Bold Lakers newsletter. To receive the newsletter in your inbox, sign up here.The 2019-20 NBA season syllabus, which began with a chapter on global politics, has moved onto one on sport physiology. This lesson is titled: Load Management.Most of the discussion so far has been focused on Clippers star Kawhi Leonard, who’s twice missed the nationally televised front end of a back-to-back with what, the league revealed Thursday, is “an ongoing injury to the patella tendon in his left knee.”Of course, Clippers coach Doc Rivers previously characterized Leonard’s “load management (knee)” absences as an injury-prevention strategy — which would’ve been against NBA rules meant to keep teams from resting healthy players in high-profile games. AD Quality Auto 360p 720p 1080p Top articles1/5READ MOREUCLA alum Kenny Clark signs four-year contract extension with PackersAnd yes, that’s all Clippers business, but Lakers fans might want to pay attention, you could be quizzed on this later: Frank Vogel and his staff are going to want to keep LeBron James (who is averaging 35 minutes) and Anthony Davis (34.7 minutes) as healthy and as fresh as possible, too.“We’re going to play every night to win with great importance placed on that game, and within playing manageable minutes where guys are being managed for the long haul,” Vogel said at a practice before the season began.Managing for the long haul might include, say, a game off to recover from the unavoidable nicks that afflict every player?The Lakers have 12 back-to-back sets of games this season, including their first Nov. 12 in Phoenix against the surprising Suns and then Nov. 13 at home against the floundering Golden State Warriors — the latter of which will be broadcast by ESPN.Theoretically, the Lakers would be better served by having their stars in the lineup for a road game against a good team than for a home game against a depleted, unimposing opponent. The network, on the other hand, would be better served by having at least the Lakers’ stars on the court for its broadcast. Or consider the consecutive games in New York, on Jan. 22 against the Knicks and Jan. 23 at Brooklyn — the latter to air on TNT. James appreciates playing at Madison Square Garden, so he might not want to miss that one. But the TNT folks wouldn’t appreciate him missing their end of back to back.To sit or not to sit, that question, either way, is going to elicit a range of opinion. And if it happens, there will be predictable stages of reaction.There will be outrage: “You’re paid to play 82 games.”There will be acceptance: “In order to show up, you have to be healthy and available,” said the L.A. Sparks’ Chiney Ogwumike on ESPN, talking about managing her own injuries. There will be confusion: What does “load management” even mean? “I don’t know where load management always means taking games off,” said Portland coach Terry Stotts, who hasn’t circled any games on the schedule to sit Damian Lillard or CJ McCollum. “We have a health and performance staff, we got all the analytics and studies and we’re very aware — if you want to call it load — we’re very aware of each player’s load, and we manage that. So I guess that’s load managing.”There could be punishment: The NBA fined the Clippers $50,000 for adding to the consternation with inconsistent reports in public and to the league about Leonard’s unavailability.And there will be results: Leonard, who led Toronto to a title last season after playing only 60 regular-season games, again looked “well-rested,” as Stotts put it, scoring 18 points in the fourth quarter of the Clippers’ 107-101 victory Thursday. In seven games so far, Leonard is averaging a league-best 13.5 points in the final period.All that could be on the test, because when Vogel says the Lakers will consider “every way we can” to keep the 34-year-old James healthy, that certainly pertains to minimizing minutes in practice, and you might also want it to pertain to minimizing minutes in competition.— Mirjam SwansonEditor’s note: Thanks for reading the Purple & Bold Lakers newsletter. To receive the newsletter in your inbox, sign up here.More readingGlass half full – Avery Bradley is questionable, but he’s looking at it “a little more on the positive side.”Talk is cheap – So Dwight Howard’s walk is saying everything.Get to know Quinn Cook – He’s a role player with championship perspective.How ‘bout them Lakers!?! – Understudies steal the show in a thrilling fourth-quarter rally in Chicago.“I mean, I am a free agent next year” – WYD A.D.?The kids from Akron – The LeBron James Family Foundation announced the I Promise Village, a transitional housing program in his beloved hometown.D-FENCE! – “We don’t get out of the way. We get in the way.” That splat you heard? – Mark Heisler writes about the fall of the recently mighty Warriors.center_img Newsroom GuidelinesNews TipsContact UsReport an Errorlast_img read more