ENVIRONMENTAL POLICIES IN POST-PANDEMIC WORLD: PLACING PROFIT OVER PROTECTION

Updated: Mar 14

Covid-19 has a deep entrenched effect which goes far beyond the superficial ones at the surface. The most standout of this has to be an analysis of how it affects the relationship between people and planet and further, its impact on future policy framing vis a vis environmental protection. While, theoretically, the idea of “One Planet, One Health, One Future”[1] continues to hold true in order to protect this relationship, the economic concerns of the corporate as well as the governments seem to be gaining greater ground in today’s changed dynamics. The question that lingers upon us is whether the changed dynamic of the globe that the governments are envisaging include environmental interests or are these simply going to be sidelined. The examples of certain countries and their upcoming policies paint a clear picture into a post pandemic world where an obvious inclination towards building conditions favorable for industrial stability would prevail to ensure economic security even if it comes at the cost of environmental degradation.

United States and the NEPA - An example worth noting

United States, a key player in the global domain, displays an outstanding example of prioritizing profit over its environment as well as its people especially through the recent relaxation in its National Environmental Policy Act. Brought into existence in 1970 by President Nixon, NEPA ensured that the federal agencies of the country gave substantial consideration to environmental impact when reviewing proposed federal projects capable of affecting the biodiversity such as road construction, pipelines, oil and gas drillings, dams etc. This law required that whenever actions of such nature were to be undertaken, Environmental Assessments (EAs) and Environmental Impact Statements (EISs) were required to be submitted by all federal agencies.

President Trump’s recent executive order[2], which also weakens the Endangered Species Act, 1973 and Clean Water Act, 1972, signed in June 2020, among other things, relaxed this law’s requirement of going through a rigorous environmental review with the excuse of an economic emergency caused due to the pandemic. The defense adopted by the administration is that “unnecessary regulatory delays deny the citizens opportunities for jobs and economic security…”[3]. This blatant attempt at streamlining and accelerating federal construction projects without environmental check has not just environmental repercussions but disproportionately harms the native and minority communities as well, many of whom have used NEPA to protect and fight for environment such as in the case of controversial construction of Keystone XL pipeline.

The US government’s criticism of NEPA, however, is not new. The government has time and again called the Act “outrageously slow and burdensome.” While the current US government’s refusal to recognize global environmental concerns is far from unforeseen, this pandemic serves as a unique yet favorable platform for the Trump administration to accelerate the process of bringing such policies into effect that support their stance.

India’s EIA Policy and Weakening of Regulatory Norms

It must also be noted that US is not the sole country practicing the philosophy of prioritizing profit. India’s Environment Impact Assessment has been a process used since 1994 when it was promulgated under the Environmental (Protection) Act, 1986 making Environmental Clearance necessary for projects listed under Schedule 1 of the notification such as mining, infrastructure construction etc.

While expertise in this area was still developing, the government came out with the draft EIA notification on 12th of March, 2020 which essentially weakened the spirit and original intent of protecting the environment. Some of the key damaging actions that the draft contains begins with diluting the Prior Environment Clearance with some projects being eligible for post-facto approval. This blatantly violates the ‘precautionary principle’ which specifies that if there is a speculation around the environmental threat of an action, it is preferred to prevent it rather than wait for scientific evidence.

According to Clause 14 that discusses the Public Consultation Process as well as the appended Appendix I’s Rule 3.1, this process is also weakened by reducing the period for public hearing from thirty to twenty days. This would possibly dilute the importance and credibility of public hearings as well as affect participation in such hearings. Further, the draft has extended the list of projects that have been exempted from public consultation to irrigation, off-shore mining, expansion and widening of highways and construction and area development.[4]

Adding to this, the draft specifies that projects of ‘strategic consideration, as determined by central government’[5] will not have any of its information be placed in public domain. Not only does this create ambiguity in understanding what these strategic considerations might be, it also leaves a huge discretionary power to the central government with a great scope of misuse. Compliance reporting has also been diluted as such reports are now required to be submitted every one year from erstwhile half-yearly reports.[6] Among other controversial things that this draft aims to do is increase environmental approval for mining projects up to 50 years from the previous 30 years.[7] Some environmentalists also argue that this draft is an attempt to push for inland waterways by the government through an amended definition of capital dredging[8]: “Waterways require two kinds of dredging – capital and maintenance. As per the existing rules, capital dredging (for inland waterways) requires environmental impact assessment. However, in the draft EIA 2020 the ministry has changed the definition of capital dredging to keep rivers out of the purview of the new environment clearance process.”[9]

While it is blatantly clear that this draft EIA notification comes in a time of a pandemic where ease of business takes the upper hand against protection of the environment, such a pattern of policies will have an everlasting impact on the global state of environmental protection. With much relaxed compliance report requirements as well as a wide range of discretionary power with the central government, this draft displays a clear realization of an industrialist’s dream and paints a broader picture into government’s priorities in a country affected by Covid-19.

An Isolated Pattern of Policy or the New Normal in Environment Law

It is worth stressing that such policy pattern changes aren’t isolated cases across the globe. While some governments have taken actions along the same lines, many others are being pressured by industrial lobbyists to do the same. Countries such as Australia have stopped assessment of threats to native wildlife.[10] In South Africa, despite the lockdown measures, mining was resumed in late April 2020 as well as usual environmental regulatory processes were suspended for lockdown period from April 11.[11] An even bigger example of countries shying away from environmental responsibility comes from European Union itself. The European Green Deal, presented as part of European Climate Law in European Commission, mandated the member-states to be carbon-neutral by 2050, becoming the first-ever climate law that would enforce nations to reduce carbon emissions. However, the pandemic created an unforeseeable situation with many member states expressing their fear of difficulty in meeting such standards. Few European Union lawmakers have requested European Commission to alter the carbon dioxide emission standards for cars in order to protect the automobile industry.[12]

As most countries went under a lockdown, some have had to relax Covid-19 restrictions to allow economic movement, it is only obvious that under current situation as well, countries will be slashing environmental regulation to support industries. However, this doesn’t only impact the environment negatively, reputed studies such as one from Oxford University[13] has found that this makes very little economic sense as well. The study suggests that the post pandemic world must be “environmentally conscious- for the sake of economy” and that projects aiming to cut carbon emissions generally create more jobs and ensure higher returns than stimulus packages.

Conclusion

Many environmental enthusiasts continue to criticize the government for their steps. Recently, youth and student groups sent a letter to the Union Environment Minister demanding a hold on draft EIA notification in India. This is not the time for governments across the globe to overlook environmental concerns for the consequences won’t just be grave but also ever-lasting. Various stakeholders as well as others sharing the same concerns have pointed out that the effort to get the economy back on its tracks has been supported by various economic stimulus packages but these conveniently miss out on environmental consideration. New investments in the green as well as clean energy sector must also be promoted and helmed by the government as a slowed down economy also has an active impact on these industries. Such unprecedented conditions are obviously not what policy-makers are accustomed to, however, maximum effort must be put into integrating sustainability into upcoming economic policies. Nature-based solutions (NBS) must be incorporated as a backbone of the new paradigm. The re-building of the world in the ‘new normal’ without considering nature will be abstract, incomplete and gravely inimical to years of environmental efforts and actions.


References

[1] The 2019 Berlin Principles on One Health, Wildlife Conservation Society, https://oneworldonehealth.wcs.org/About-Us/Mission/The-2019-Berlin-Principles-on-One-Health.aspx (last visited June 25, 2020). [2] Exec. Order No. 13927, 85 F.R. 35165 (2020). [3] Id. [4] Draft Notification, Ministry of environment, forest and climate change, Cl. 14(2). [5] Draft Notification, Ministry of environment, forest and climate change, Cl. 5(7). [6] Draft Notification, Ministry of environment, forest and climate change, Cl. 20(4). [7] Draft Notification, Ministry of environment, forest and climate change, Cl. 19(1)(I)(d). [8] Draft Notification, Ministry of environment, forest and climate change, Cl. 3(8). [9] Mayank Aggarwal, India’s Proposed Overhaul of Environment Clearance Rules Could Dilute Existing Regulations, Mongabay (Mar. 26, 2020), https://india.mongabay.com/2020/03/indias-proposed-overhaul-of-environment-clearance-rules-could-dilute-existing-regulations/. [10] Lisa Cox, Australian government Stops Listing Major Threats to Species Under Environment Laws, The Guardian (May 7, 2020, 11:10 PM), https://www.theguardian.com/environment/2020/may/08/australian-government-stops-listing-major-threats-to-species-under-environment-laws. [11] “Directions Issued for Measures to Prevent and Combat the spread of Covid-19” (11 April 2020) 3 New Zealand Gazette 462. [12] Poonam Mulchandani, Covid-19 Crisis: Economic Stimulus Packages and Environmental Sustainability, 55 Economic and Political Weekly (2020). [13] Cameron Hepburn et al., Will Covid-19 Fiscal Recovery Packages Accelerate or Retard Progress on Climate Change? (Oxford Review of Economic Policy, Working Paper No. 20-02, 2020), https://www.smithschool.ox.ac.uk/publications/wpapers/workingpaper20-02.pdf.


Author - Anukriti Trivedi

Student at Dr. Ram Manohar Lohia National Law University.

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