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India needs to revamp its public consultation framework

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The draft Environment Impact Assessment notification 2020 minimises public engagement. How do other countries go about it?

The contentious draft Environment Impact Assessment (EIA) notification, 2020 will be notified after receiving suggestions and complaints from stakeholders and environmentalists. 

The exisiting notification mandates public consultation only once in the entire assessment process of a project — after the draft EIA report is prepared. The draft prepared in March 2020 attracted criticism especially because it further limits public participation. 

EIA 2020 will reduce the time given to the public for sending feedback and add more categories of projects which will be exempted from any form of public engagement. 

Public consultation is an important step in the EIA process. The objectives of including it are quite clear: Raise awareness among the locals about the project, provide them an opportunity to put forward their perspective and comments, help project proponents understand and mitigate any local impact by discussing with people.

The current process

According to the EIA notification 2006, this public consultation is performed in two ways. First, written comments are sought on EIA report from stakeholders. Second, public hearing is conducted at or near the proposed project site.

The process looks promising and reasonable in providing opportunities to address public grievances and feedback.

Sadly, the process is riddled with lacunae, making the objective ineffective.

One of the major drawbacks is that public consultation is done when the draft EIA report is already prepared and is ready for final submission to the expert committee.

At this step, when the site and technology has already been selected, the EIA report has been prepared, what impact can public feedback have on the project?

Will the project be rejected by the expert committee if the local people stand against it? Is this step barely a formality for paper work?

The answer to these questions is a known fact now and has resulted in frequent instances of public outrage and dissent against in the last decade.

Public consultation has become an ineffective step in the EIA process and the whole objective is losing its essence.

Global practices

The situation is not similar in developed and other developing countries, according to an online discussion hosted by Delhi-based non-profit Centre for Science and Environment (CSE) on 17 February 2021.

It emerged during the webinar that countries have a provision for public engagement at various stages of the assessment process. Public discussions on projects are quite detailed during the EIA.

In Sweden, for instance, the applicant has to consult the public even before applying for a new project. The documentation of this consultation is a mandatory part of the application.

In a project for spent nuclear fuel facility, the project proponent conducted detailed public consultation through multiple rounds of public meetings and written communication with stakeholders.  

In order to gain confidence of the public regarding the new project, the proponent also took a few stakeholders on a two-day study trip to a similar plant at another location to ensure they get a clear idea about the process and the possible impacts to provide feedback.

The Swedish EIA agency, however, still feels that the study trip has a limitation of people who can take part and measures need to be taken to ensure more participation.

Likewise, Ghana also practices continuous public consultation during the complete process of EIA. The law mandates public engagement at the project implementation step when monitoring results are publicised and people have an opportunity to address problems.

The locals are also required to be informed even at the decommissioning stage of the project.

These steps were followed while assessing a project that proposed a fuel service station near a sacred pond.

After popular opposition, the EIA agency asked the project proponent to redesign the site layout and use an additional costly safeguard technique — fibre-coated underground storage tanks — to prevent pollution to the pond. The agency ensured to protect the sentiments of the local people along with the development.

The United States also has a very engaging environmental review process that brings in public consultation at an early stage.

The National Environmental Policy Act allows engagement of public from the scoping stage of the process and continues with the draft EIA report and final decision-making stage.

The NEPA has provided a dedicated timeline for the public to submit their feedback for the project.

The USEPA public consultation process

 Source: Centre for Science and Environment, 2021

The government has additionally come up with a US Environmental Justice (EJ) Policy.

The objective of this policy is to identify minority and low-income populations that may be affected, address the disproportionately high and adverse human health or environmental effects on those populations and provide these communities an opportunity access to public information and participation.

The government has integrated this policy well into the environmental review system which has allowed low-income and minority communities to be a part of the public engagement process and share benefits.

This is an outstanding approach to ensure all communities are made aware of the process, are heard and measures are addressed in the report to mitigate the negative impacts of the project.

Way ahead for India

While other countries are making an effort to hear out the public and address their grievances, India is finding means to minimise public involvement in the EIA process.

The government should bet on inclusive growth where local residents are prioritised as much as the project proponent, said Nivit Kumar Yadav, Programme Director, CSE.

“More concerted and active participation of the people from an early stage of the project only can lead to inclusive development,” he added.





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California Environmental Law & Policy Update – February 2021 #4 | Allen Matkins

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Bullet The San Mateo Daily Journal – February 19

Nearly 60 Bay Area political leaders and organizations last Tuesday asked the Biden administration to protect Redwood City’s salt ponds, owned by Cargill, Inc., from future development by withdrawing a Trump era appeal of a court ruling deeming them federally protected “waters of the United States.” On October 5, 2020, Judge William Alsup, of the U.S. District Court for the Northern District of California, ruled that the 1,400 acres fell under the protection of the federal Clean Water Act, overturning a 2019 U.S. Environmental Protection Agency (EPA) decision finding the salt ponds exempt from the Act as “fast lands.” Cargill, and its developer partner, DMB Pacific Ventures, which hope to develop the property, intend to pursue an appeal of Judge Alsup’s ruling regardless of whether EPA’s appeal moves forward.


News

Bullet Desert Sun – February 24

The Center for Biological Diversity (CBD) this Wednesday filed a lawsuit challenging the California Geologic Energy Management Division’s (CalGEM) approval of thousands of permits to drill for oil and gas. CBD seeks an injunction compelling the state to comply with the California Environmental Quality Act (CEQA) in its permitting of oil and gas wells, which, the organization alleges, CalGEM violated by issuing drilling approvals without adequate environmental review and in reliance on inapplicable exemptions under CEQA. The agency disputes the claim and says that the Newsom administration has strengthened oversight, imposed more rigorous standards for permit review, and institutionalized independent scientific and technical review of its processes.


Bullet San Francisco Chronicle – February 24

The California First District Court of Appeal on February 18 reinstated orders issued by the San Francisco Bay Regional Water Quality Control Board and the Bay Conservation and Development Commission (BCDC) that imposed cleanup and restoration requirements, and a total of $3.6 million in penalties, against a developer who deposited large amounts of fill into Suisun Bay marsh waters to clear the way for a duck club and kite-surfing center. The agencies’ orders had been overturned in December 2017 by Solano County Superior Court Judge Harry Kinnicutt, who found in the agencies’ orders “an appearance of vindictiveness.” On appeal, the higher court found that the trial court had made numerous legal and factual errors, and upheld the agencies’ determinations as to the developer’s violations of applicable state and federal laws and harm to the environment.


Bullet The Sun – February 24

Stymied by environmental barriers and years of court losses, the San Bernardino Valley Municipal Water District—a large water wholesaler serving 700,000 residential and business customers—will soon release a conservation plan that would nearly double its supply of water by diverting billions of gallons from the Upper Santa Ana River, while mitigating the effects on 20 indigenous fish and bird species. A major emphasis of the 50-year Upper Santa Ana River Habitat Conservation Plan (HCP) includes caring for the Santa Ana sucker fish, listed as threatened under the federal Endangered Species Act, as well as other threatened and non-listed species. The HCP has been eight years in development and will be ready for public review in March 2021.


Bullet Hanford Sentinel – February 24

Senator Melissa Hurtado (D-Sanger) has introduced the State Water Resiliency Act of 2021 – legislation that could provide up to $785 million to restore the capacity of California’s critical water delivery infrastructure and repair aging roads and bridges. The new legislation, Senate Bill 559, could fund repairs to the Friant-Kern Canal, Delta-Mendota Canal, San Luis Canal, and the California Aqueduct, which together comprise California’s main state and regional water conveyance infrastructure.

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Thames Water fined £2.3m for raw sewage pollution incident | Pollution

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Thames Water, the UK’s largest water company, has been fined £2.3m for a pollution incident in 2016 that resulted in the death of 1,200 fish and damaged the environment.

The incident, involving a leak of untreated sewage with a high ammonia content into the Fawley Court ditch and stream that flows into the River Thames at Henley-on-Thames, happened between 21 and 24 April 2016.

The prosecution and sentencing of Thames Water, which pleaded guilty to the Environment Agency’s charge, was delayed until this week for reasons including the pandemic.

Francis Sheridan, the judge in the case, which was heard at Aylesbury crown court, said Thames Water’s breach of environmental standards constituted “high negligence”.

The company received a record £20m fine in March 2017 for a series of pollution incidents at sewage facilities in Buckinghamshire and Oxfordshire that led to the pumping of 1.9bn litres of untreated sewage into the Thames.

In the latest case, the court heard that Thames Water’s warning systems of low levels of oxygen in the water had been activated over a number of days, but that effective action had not been taken in response.

Sheridan said he wanted a deterrent element to be built into the sentence and for that reason he had set the fine high.

Thames Water initially sought to get the case dismissed, but the judge rejected its attempt as hopeless.

He accepted in mitigation, however, that Thames Water had taken significant steps to improve matters since the incident. Its eventual decision to plead guilty to the offences was also recognised as a mitigating factor.

Sailesh Mehta, instructed by Rooma Horeesorun, the Environment Agency’s senior lawyer, welcomed the sentence and large fine. “This fine reflects the growing trend in courts to acknowledge the seriousness of environmental offences of this kind and shows how the courts are playing a vital role in protecting the environment for future generations,” he said.

It was reported this month that Thames Water had been discharging untreated sewage into a chalk stream in Buckinghamshire, which campaigners say has caused untold harm to trout fry and river habitats.

Thames Water’s CEO, Sarah Bentley, who joined the company in September, said: “We’re really sorry for what happened in Henleyfive years ago. Discharges of untreated sewage are simply unacceptable and we will work with the government, Ofwat and the Environment Agency to accelerate work to stop them being necessary.

“Our business plan for the next five years includes an unprecedented amount of investment, much of it directed towards safeguarding the environment. We have a long way to go and we certainly can’t do it on our own, but the ambition is clear.”

An Environment Agency spokesperson said: “This £2.3m fine for Thames Water for an entirely foreseeable pollution incident in 2016 laid bare the company’s management failings.

“Protecting England’s rivers and lakes is one of the Environment Agency’s top priorities. Our enforcement action over several years has led to improvements in how water companies operate, but the damage caused to the environment at Henley shows water companies have a lot more to do. Sitting at Aylesbury Crown court today, Judge Francis Sheridan said a number of equipment faults at Thames Water’s local sewage treatment plant should have been identified and fixed ‘long before’ the company reacted.”

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The Environment Bill and Biodiversity Gain

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The Environment Bill (E.B.) has seen a long drawn out journey through Parliament so far. The latest mood music is that it will receive Royal Assent in Autumn 2021. Whist the formal regime will not go live until 2023 it is important to note that biodiversity gain (B.G.) is currently a requirement of the National Planning Policy Framework and Planning Policy Guidance and Local Authorities are applying it through their local polices. Regardless of the time delay this is having very real implications at this point. and ‘go live’ in 2023. It is certainly worth preparing now for the implementation of some of the more innovative new provisions, and most especially those around the introduction of B.G. conditions.

The Bill will introduce a new requirement on all developments to provide a 10% increase in the biodiversity value of land being developed. In summary:

i) Grant of planning permission will be subject to a pre-commencement condition requiring a B.G. plan to be approved;

ii) Where 10% on site biodiversity gain cannot be achieved, then it may be achieved through off site works or through the purchase of biodiversity credits – through a scheme likely to be run by Natural England who ran a pilot last year;

iii) Enhancement schemes may be enforced through s106 obligations or through ‘Conservation Covenants’ and are required to be maintained for at least 30 years;

iv) The 10% gain requirement may be ratcheted upwards in future years.

The Bill does not apply to Nationally Significant Infrastructure Projects or Marine developments. There are discussions underway looking to incentivise biodiversity gain in these areas.

Secondary Legislation will be required to address what form biodiversity gain plans may take as well as addressing exemptions, how to deal with issues of degradation and phased development. There is expected to be a consultation released later this year to address such issues. The metric (3rd version) for assessing the biodiversity value is also expected to be released this Spring, with the Bill expected to receive Royal Assent in the Autumn. This will be followed in the Winter when the register and credit sales platform will go live. B.G. will become a legal requirement, two years following Royal Assent, which means that if it is passed this year, B.G. will be a requirement from 2023.

Conservation Covenants will be legally binding private voluntary agreements between landowners and responsible bodies and can be used in the alternative to Planning Obligations to secure B.G.

How proposals work in practice

A biodiversity metric will be populated with habitat information from the site assessment and landscape plans to demonstrate early on that harm has been avoided and that new green infrastructure will be of good environmental quality. Metric data will be able to anticipate any costs of achieving the net gain. Wherever possible preventing damage to nature will continue to be prioritised.

If a 10% net gain cannot be achieved the metric would provide information for discussions with the local planning authority (L.P.A) about habitat enhancement or creation. Tariff rates will give guides as to the upper limits of habitat compensation costs.

The three options below set out how biodiversity net gain can be achieved under the policy proposals:

1. Onsite (units) -The developer can avoid harm by mitigating and enhancing on site;

2. Offsite (units) – If the developer is unable to avoid harm, mitigate or compensate all impacts but is able to secure local compensatory habitat creation or enhancements to offset the harm proposed to be caused on the development site;

3. Statutory Credits – If unable to avoid harm, mitigate or compensate on site and unable to find local compensatory habitat a tariff would be imposed to fund cost effective habitat creation projects according to local and national conservation and natural capital priorities.

Considerations for Developers

Developers should be starting to consider B.G. now, certainly at the stage of site selection or outline design. Developers should begin considering:

• Undertaking baseline metric calculations

• Determining how to deliver strategy

• How land will be maintained

• Submitting net gain and completed metrics to the L.P.A. and engage early in discussions

• Timings of the planting progress

• Availability of credits and value implication

• Transactional costs

• Secure offsite credits consideration

• Being aware of local priorities (and local politics)

Benefits to Developers

There is a commercial gain to be had from B.G. delivering onsite greener spaces can make a development more appealing, having the potential to increase plot prices due to the immediacy of access to green space. It must be considered however that delivery of B.G. onsite may have a commercial impact if plot density is affected, and good habitat value may be at odds with public access. It is at this stage that offsite compensation may need to be considered. It is about striking the right balance for developer and the environment.

Further Information to Note

The metric requires like for like provision or better. There is some scope to substitute habitats, but developers should consider site selection for offsite delivery early.

Until the E.B. becomes law there are limited opportunities available to developers to start actively planning for offset credit. Current options include asking a broker to identify and secure appropriate offsetting land, identify and purchase credits for a habitat bank which provides an ‘off the shelf’ solution to create habitat elsewhere and tripartite s106 agreements in which a third party related to the delivery of B.G. as a signatory to the s106 will help ensure its delivery.

The B.G. requirement has the potential to be costly and it is important to consider whether B.G. will affect viability. Standard B.G. conditions will be imposed by statute, ranking higher than other policy requirements. Developers are advised to engage early with the L.P.A. submitting a draft biodiversity plan to reduce the impact on timing and unanticipated costs of development.

The L.P.A. will themselves monitor the biodiversity of sites so degradation of land by developers prior to the initial biodiversity calculation will not be possible.

Top Tips

• The developer needs a clear robust picture of biodiversity value early in the scheme preparation, alongside this regular baseline monitoring will support the B.G. plan.

• For most schemes, pre-development biodiversity value will be calculated at the date of the application even though the B.G. plan is not required to be submitted until after Planning Permission is granted. Early engagement with landowners and 3rd party organisations will ensure that developers can identify and utilise off site mitigation land and build such schemes into their submissions to the council.

• In practice, it may be advisable to submit the B.G. plan with the Planning application or at least a draft to encourage discussion and to resolve issues early.

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