Anshu Bansal, Research Associate
Public Hearing provides wherever necessary, social acceptability to a project and also gives an opportunity to the EAC to get information about a project that may not be disclosed to it or may be concealed by the project proponent ((Samarth Trust v. Union of India & Ors., Writ Petition (Civil) No. 9317 of 2009.)).
A public hearing is a form of participatory justice giving a voice to the voiceless (particularly to those who have no immediate access to courts) and a place and occasion to them to express their views with regard to a project. Participatory justice is in the nature of a Jan Sunwai where the community is the jury ((Id.)). In the Environmental Impact Assessment Notification 2006 which is issued under the provisions of the Environment (Protection) Act, 1986, public hearing was mandatorily required.
Public hearings remain the most common form of face-to-face public involvement in spite of nearly universal criticism of their ability to provide meaningful participation. EPA convenes hundreds of hearings per year ((Fiorino, 1990, p. 230))this system of public hearing was introduced from 1994 based on the broad principle that bodies, like the Pollution Control Boards, entrusted with the power of enforcement of pollution control laws should not arbitrarily exercise such power without first hearing the persons who are likely to be affected by the proposed project ((AR. Lakshrnanan, THOUGHTS ON ENVIRONMENTAL PUBLIC HEARINGS,17 Student B. Rev 1 2005)).
The conduct of public hearings ensures that the public, particularly those likely to be affected by the industrial activity, get a chance to obtain the right information about the project ((Id.)). A proper hearing, according to Lord Denning, must always include a “fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view ((Kanda v. Government of the Federation of Malaya, [1962] AtG 322 (per Denning, LJ. citing approvingly from R v. Hendon Rural District Council ex parte Chorley, [1922] 2 K.B. 696).)).” The authority responsible for conducting the public hearing will have to consider all the objections raised by the public. Fairness demands that the public authority consider only the relevant factors and ignore the irrelevant ones ((Associated Provincial Corporation Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223, for a discussion of the rights and powers of administrative bodies.)).
Environmental Impact Assessment cannot be carried out properly without proper public consultation. Local person who are going to get affected and interested parties are needed to be consulted. Public consultation process comprises of two parts. The first part being Public Hearing and the second part is submission of written representations. The main purpose behind such public hearing is to have necessary implication of carrying out the project.
According to the EIA Notification 2006-
“Public Consultation” refers to the process by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity are ascertained with a view to taking into account all the material concerns in the project or activity design as appropriate.
Several international instruments recognize environmental human rights including the right to public participation in environmental matters. Ukraine has made significant efforts to implement and enforce these rights. Current practice however, reveals certain weaknesses and obstacles in respect to the right to participate in environmental decision-making ((Andriy Andrusevych, The Right To Public Participation In Environmental decision-Making In Ukraine: Challenges Of Compliance,2 Hum. Rts. & Int’l Legal Discourse 211 2008.)).
How the public hearing is carried out
It provides platform for voicing concern of the public on the environment and other implications of the proposed project. Also, detailed scrutiny of the minutes of the public hearing is also done. During the process, the Expert Appraisal Committee has to give categorical reasons as to how the objections raised by the public have been taken care of by the Project Proponent ((As per the order of the High Court of Delhi in Utkarsh Mandal v. Union of India & Ors. W.P. (C) No. 9340/2009 dated 26.11.2009 available on the website of the High Court of Delhi at http://lobis.nic.in/dhc/SMD/judgement/30-11-2009/SMD26112009CW93402009.pdf.)). The committee hears the objections/suggestions from the public and concerns expressed shall be recorded by the representative of the PCB, the minutes of hearing shall be signed by the district magistrate or his or her representative on the same day and forwarded to the PCB concerned ((Available at http://www.gpcb.gov.in/public-hearing-2011.htm)).
Steps involved in public hearing ((Available at http://www.ercindia.org/files/PH-Book-NEW.pdf.)):
- Attendance of persons attending the Hearing has to be marked.
- Presentation on the proposed project by the Proponent.
- Reading out of the Summary EIA Report by the Project proponent.
- Expression of views and concerns by the Public.
- Reading of the proceedings in Vernacular language to the public present.
- Summary of proceedings recording accurately the views and concerns rose.
- Clarification by project proponent to the queries raised by the public
Prior Environmental Clearance
For certain categories of project, prior environmental clearance is mandatory. Without the prior Environmental Clearance, a project proponent cannot undertake any activity related to the Project. As far as prior environment clearance is concerned, the project is divided into two categories: this categorisation is based on impact the activity is going to cause to the environment and also on people ((For further details on the categorisation of Projects under the EIA Notification, please refer to the Schedule to the EIA Notification available on the website of the Ministry of Environment and Forests at http://www.envfor.nic.in/legis/eia/so1533.pdf.)).
- Category A: It require a prior environmental clearance from the Ministry of Environment and Forests i.e. environmental clearance has to be obtained prior to any work commencing at the place.
- Category B projects require a prior environmental clearance from the State Environment Impact Assessment Authority (SEIAA). Some of the Category B projects do not require an EIA report ((For further details on Projects for which Public Hearing need not be held, please refer to Para 7 (i), Stage III Public Consultation of the EIA Notification, 2006.)).
Is Public Hearing limited only to ‘environmental impacts’ on proposed project?
As the purpose is specified, it is only intended to look into pros and cons of the proposed project. But, the word ‘environment’ is to be interpreted broadly and issues concerning the social as well as economic (including livelihood) impacts are part of EIA studies ((Appendix III, S.No. 7 of the EIA Notification, 2006)).
Supreme Court of Judicature of Jamaica in The Northern Jamaica Conservation Association v. The Natural Resources Conservation Authority ((Claim No. Hcv 3022 Of 2005))argued that a public hearing was a must for grant of environmental clearance. In a case it was said that as there was no public hearing in this case and there was inadequate EIA before the grant of the environmental clearance for the plant of the appellants, the High Court has rightly directed closure of the plant of the appellants ((Sterlite Industries (I) Ltd. Etc. … Vs Union Of India And Ors. Etc. Etc. On 2 April, 2013)).
Conclusion and Recommendation
Citizens have a strong desire to enjoy clean air and water free from toxic chemicals. Now more than ever, people concerned with environmental quality are seeking to influence governmental decisions by participating in the permitting process ((Lvmar C_ Welch, New Approaches To Public Participation in environmental Decisions 22 Del. Law. 15 2004-2005)). Public workshops and hearings should be part of an overall process that gives the public more opportunities for becoming informed and involved ((Id.)).
It also allows people to articulate their views about the propose project. I addition to this, it also bring into light hidden issues. After giving every party an opportunity to express their respective concern, conflict are resolved. The problem generally faced during the public hearing process is an inability of the affected communities to easily understand the project. Hence, it is required that in the first place, the interested people especially those from the village community should be facilitated with the kitty- gritties of project so that later on no conflicts should arise with regard to project implementation, acceptability and sustainability.