India: Government Grants Projects Relief, Issues Notification Allowing Six-Month Window For Grant Of Environmental Clearance

The Ministry of Environment, Forest and Climate Change (hereinafter referred to as the "Ministry") issued a notification dated March 14, 20171 granting relief to projects and expansion to existing projects by allowing them to apply for environmental clearance within six months from the date of the notification.

Background

The Environmental Impact Assessment Notification, 2006 was issued on September 14, 2006 which stated that new projects and expansion of existing projects, whose capacity addition goes beyond the limits specified for the project's sector, shall require prior environmental clearance from the concerned regulatory authority before the initiation of the new project or expansion.

In furtherance of the Environmental Impact Assessment Notification, 2006, two Office Memoranda (hereinafter referred to as "OM/ OMs") were issued by the Ministry dated December 12, 20122 and June 27, 20133 which laid down processes for grant of environmental clearances for new projects or expansions which had been initiated before being granted the environmental clearance.

Overview of the OM

The OM dated December 12, 2012 laid down the processes by the Ministry to be taken in case of violation of the provisions of the Environmental Impact Assessment Notification, 2006 by a project proponent. The project proponent was required to submit a written commitment to the Ministry stating that the violation would not be repeated by them. Further, the details of the project proponent committing the violation and a copy of the written commitment would be displayed on the Ministry's website. The OM dated June 27, 2013 granted further powers to the Ministry to issue directions to the project proponent in respect of violations and compliances.

Validity of the OMs

In the case of Hindustan Copper Limited v. Union of India4 the question of the validity of the OMs was put before the Jharkhand High Court. The High Court vide its order dated November 28, 2014 held that the conditions laid down under OM dated December 12, 2012 in paragraph No. 5 (i) and 5 (ii) were illegal and unconstitutional. The High Court further held that action for alleged violation would be an independent and separate proceeding and therefore, consideration of proposal for environment clearance could not await initiation of action against the project proponent. Further, the High Court observed that a proposal for environment clearance must be examined on its merits, independent of any proposed action for alleged violation of the environmental laws.

Subsequently, the National Green Tribunal in S.P. Muthuraman v. Union of India and Ors.5, quashed the OMs with the Tribunal holding that the Environmental Impact Assessment Notification, 2006 provides for prior environmental clearance and, therefore, no procedure for post environmental clearance can be laid down through OMs. The Tribunal further observed that the OMs had been issued without proper application of mind, were supplanting the Notification of 2006 and were in complete derogation to the laws in force. Therefore, they could not withstand the legal scrutiny and resultantly were liable to be quashed.

Notification dated March 14, 2017

The Ministry has continued to receive proposals under the Environmental Impact Assessment Notification, 2006 for grant of Terms of Reference and Environmental Clearance for projects which have started work on site, expanded the production beyond the limit of environmental clearance or changed the product mix without obtaining prior Environmental Clearance. The Ministry has, therefore, issued the present notification to bring such projects under compliance to ensure that such projects do not remain unregulated and unchecked. The projects have a six month window from the date of the notification to apply for the environmental clearance.

Features of the present Notification

  • The notification lays down the steps to be taken in case projects that require prior environmental clearance under the Environment Impact Assessment Notification, 2006 are undertaken in any part of India without obtaining prior environmental clearance from the Central Government or the State Level Environment Impact Assessment Authority, as the case may be.
  • Such projects will be treated as cases of violations and the respective State Pollution Control Boards will have the power to take action against the project proponent under Section 19 of the Environment (Protection) Act, 1986. Further, the consent to operate or occupancy certificate cannot be issued to such projects.
  • The Expert Appraisal Committee (hereinafter referred to as "Committee"), constituted under Section 3 of the Environment (Protection) Act, 1986, shall appraise the cases of violations to assess whether such projects are permissible under prevailing laws and expansion is done in accordance with environmental norms and safeguards.

Footnotes

1 S.O. 804(E), available at: http://envfor.nic.in/content/so-no-804e-violation-ec-cases

2 Available at: http://www.moef.nic.in/assets/om-12122012-b.pdf

3 Available at: http://www.moef.nic.in/sites/default/files/om-270613.pdf  

4 W.P. (C) No. 2363 of 2014

5 Original Application No. 37 of 2015

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