The Law of Environmental clearance -Yesterday, Today And Tomorrow

 

Adv P.B.SAHASRANAMAN

Environment Impact Assessment (EIA) is an early warning system. Before the commencement of a development activity an assessment of the adverse effect of the project on the environment. Till 1994, the EIA in India was purely an administrative decision. It was in 1994 that the first notification for EIA was mandated for Environmental Clearance (EC) for huge projects scheduled for it. The said notification was replaced in 2006[1] prescribing certain procedures in the process for EIA. This notification was amended several times based on various directions from the Courts. Supreme Court in 2012[2] in public interest issued a general direction on mining making it applicable to all minor mineral quarries which have less than five hectares. The ambiguity in the classification of the “Building and Construction project” and “ township and area development project” has been pointed out by the Supreme Court while considering the project of Okhla Bird Sanctuary in 2011[3]. Several High Court, as well as the National Green Tribunal,(NGT), has imposed more conditions for the protection of the environment. Based on the same amendments were carried out by the Ministry of Environment, Forest and Climate Change (MoEF&CC) from time to time.

The present proposal now made by the Ministry of Environment, Forest and Climate Change[4] by March 2020  notification are to streamline the process of issuance of EC, conducting of EIA, decentralisation and implementation of the directions issued by the Courts. The proposal is based on the principle of sustainable development by which the environment is protected without affecting the environment. It refers to two judgments. The Jharkhand High Court[5] has held that the consideration for the proposal for Environment Clearance must be examined on its merits, independent of any proposed action for alleged violation of the environmental laws. The NGT[6] also held that MoEF shall strengthen the monitoring mechanism for compliance with conditions of Prior Environment Clearance;

Before the commencement of any development of any land, the EC has been made mandatory for certain projects. If a project is halted while implementing there will be an economic loss. For huge projects, a draft EIA has to be prepared and the public is consulted to know the veracity of the project. Till now several project proponents got the EIA prepared by some agency that used to give tailor-made reports. Certain reports are cut and pasted from similar projects. To stop such practice, the 2020 notification mandates accreditation with the National Accreditation Board for Education and Training of Quality Council of India or any other agency, as may be notified by the Ministry from time to time for such consultant organisations. Such institutions are accountable for the preparation of EIA based on real facts.

The categorisation of projects as A, B1 and B2 is done based on the magnitude of the project on the ecology. Public consultation is undertaken for all “Category A and B1” projects. The EIA will not be complete without any public participation. The locally affected persons and other stakeholders who are nearby are consulted. The environmental aspects highlighted are again consulted with the experts. Finally, the view of the project proponent is ascertained. Previously the project proponent used to manage such public hearing with his men to avoid a negative view of the project. The 2020 notification mandates the making available the soft copy of the project, EIA and other reports in web sites. The entire hearing to be video graphed to make it more transparent.

The application for environmental clearance for the Athirampally Hydro Electric Project was under consideration before the MoEF. The public hearing was mandated for such projects from 1997. Kerala High Court[7] has declared that public hearing is required for such the said project the Electricity Board contended otherwise. The public hearing was conducted on 06-02-2002. Since the majority of the people have objected to the project the hearing panel unanimously found that the Rapid EIA prepared was incomplete and recommended for comprehensive and participatory EIA. Thereafter the report was prepared and a hearing was conducted. But this time the Report was not published and therefore the public hearing was found to be not meaningful, the Kerala High Court declared.[8]

The 2006 notification schedule contains only eight types of projects whereas the 2020 notification schedules forty-three projects. It includes even the Municipal waste management, ship breaking, elevated roads, flyovers, etc. The old does not define the terms used in it. The result is that various interpretations are given by different Courts. To avoid that the new notification defines sixty terms making more transparency in the law and reducing the litigations.

Mining is an activity that degrades the environment, which comes within the ambit of EIA notification. No EIA is required if the mining area is less than 5 ha. But permissions can be granted on the basis of the District Survey Report of such minor minerals. At present most of the District Survey Reports prepared will not show the crucial details of the mineral wealth available. The 2020 proposal gives a definite mandatory requirement for such Reports which must show the mineral wealth available for mining.

The new notifications exempt small scale units engaged in certain works. Extraction of ordinary clay or sand by manual mining, by the Kumhars (Potter) to prepare earthen pots, lamps, toys, etc. as per their customs are not on the same footing as other mining operations. Mining without using any machinery is exempted. Removal of sand deposits on the agricultural field after a flood by farmers, customary extraction of sand and ordinary earth from sources situated in Gram Panchayat for personal use or community work in the village, community works like desilting of village ponds or tanks, construction of village roads, ponds, bunds undertaken in Mahatma Gandhi National Rural Employment and Guarantee Schemes, other Government-sponsored schemes, and community efforts, Community works like desilting of village ponds or tanks, construction of village roads, ponds, bunds undertaken in Mahatma Gandhi National Rural Employment and Guarantee Schemes, other Government-sponsored schemes, and community efforts, Manual extraction of Lime shells (dead shell), shrines, Digging of the foundation for buildings, etc., within the intertidal zone by the traditional community, etc are some of the projects exempted from the obtaining of prior EC or permissions. No EIA or public consultation is required for such projects.

The present law requires that building and construction projects above 20,000 sq mts require Environmental Clearance. This was amended[9] on 15-11-2018 increasing the limit to 50,000 sq mts which was under challenge in Delhi High Court. The new notification retains the 20,000 sq mts limit and the EC can be obtained from State Authority.

The new proposed notification also put a duty of regulation of the project on the authority which grants clearance. The regulatory authority based on the information available or environmental issues brought to the notice after the issuance of EC may impose additional conditions as it deems fit. Such an inherent power on the authority will protect the environmental hazard which has arisen subsequently, like natural disasters.

In so far as Kerala is concerned EC was made mandatory for Government projects by a notification issued on 13-01-1978[10]. All development schemes costing more than ten lakhs should be referred to the Committee on Environmental Planning and Co-ordination for review and assessment of environmental implications to integrate environmental concerns. Their clearance is mandatory for such a project. But that notification is ignored even by the State. But Supreme Court by its judgment rendered on 2013[11] directed to demolish the rainbow model restaurant constructed on the banks of Periyar River in Aluva. Thereafter the Kerala Government has withdrawn the said 1978 order for the reason that it stands against development!

Litigations were launched in Supreme Court on EIA on projects like Sardar Sarovar Dam[12], Konkan Railway[13], Koodankulam Thermal project[14], etc. After the dismissal of the cases, the projects were launched and it has proven that it benefitted the general public. Projects like Silent valley and  Athriampally Hydroelectric project were shelved by the peoples’ movement for the reason that it will harm the ecology. Making more clarity on the law constructions is very much essential so that demolitions like the one that happened in Maradu, [15]where the stakeholders do not know that it is violative.

The present proposal is legislation for tomorrows’ generation based on the principle of sustainable development. Investment harming the environment is not possible. There is no conflict with the State legislation like Building Rules which are intended to protect the environment. If the State Government feels that the conditions imposed by the Central legislation are insufficient, it is up to the State to impose more restrictions. But the minimum standards prescribed in the EIA cannot be diluted. The regulatory authority is empowered to impose more conditions if the conditions already imposed is not sufficient. It strengthens the monitoring mechanism. The notification only supports environmentally friendly projects and not projects which harm the ecology.

It may be noted that the Government of India has inherent powers under Rule 5 (4) of the Environment (Protection) Rules, 1986 to dispense with the requirements of notice for making changes in the conditions even without a draft notification. But the Government of India would like to know the public view on the same and issued the draft notification.

[Article published in the Kerala Law Times, 2020 (5) Journal Page 25]

 


[1] S.O. 1533 (E) dated the 14th September, 2006

[2] Deepak Kumar vs State of Haryana (2012)4 SCC 629.

[3] IN RE. Versus Construction of Park At Noida Near Okhla Bird Sanctuary ANAND ARYA & Others. 2011 (1) SCC 744,  2

[4] S.O. 1199(E), dated 23-03-2020. Gazette of India, 1071, dated 23-03-2020

[5] Hindustan Copper Limited Versus Union of India. JHC , LAWS(JHAR)-2014-11-33

[7] Chalakuty Puzha Samrakshna Samithi vs State. O.P.Nos.1774 of 2001, dated 17-10-2001.

[8] Athirappally Grama Panchayat vs Union of India. W.P.(C)No.11254 of2005, dated 23-03-2006.

[9] Notification 15th November 2018 - S.O. 5736(E)

[10] S.O.944 (E) , dated 15-12-1990.

[11] Association for Envioronment Protection Vs. State of Kerala. 2013 (3) KLT 201 : 2012 AIRSCW 3840 : ILR 2013 (3) Kerala 149.

[12] Narmada Bachao Andolan vs UOI. 2000 (2) SCC 664.

[13] Goa Foundation vs Konkan Railway Corporation. AIR 1992 Bom 471.

[14] G. Sundarrajan v. Union of India reported in 2013 (6) SCC 620

[15] Kerala Coastal Zone Management Authority vs Maradu Municipality. 2019 (2) KLT 835.

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