India: Madras High Court Stays Notification Providing Six-Month Window To Get Environmental Clearance In Cases Of Violation

  1. INTRODUCTION

The Ministry of Environment, Forests and Climate Change ("MoEF&CC") issued a notification on 14 March 2017 ("Notification") to provide a one-time opportunity in the form of a six-month window to grant Terms of References and Environmental Clearance for projects which have started the work on site, expanded the production beyond the limit of environmental clearance or changed the product mix without obtaining prior environmental clearance.

This, as the Notification stated, was necessary to bring such projects and activities in compliance with the environmental laws at the earliest point in time, rather than leaving them unregulated and unchecked, which would have been more damaging to the environment.

It was categorically mentioned in the Notification that it would be applicable only to such projects which are in violation as on 14 March 2017, the date of issuance of the notification, and that the project proponents of such projects could apply for environmental clearance within six months from the date of the notification.

The Notification provided that all applications for environmental clearance would be considered on merits and as per the applicable norms provided for in the Environment Impact Assessment Notification 2006.  

  1. ORDER OF THE MADRAS HIGH COURT

The aforesaid notification dated 14 March 2017 was challenged before the Hon'ble High Court of Madras vide WP No. 11189/2017 and WMP No. 12134/2017. The Hon'ble High Court has stayed the Notification vide its order dated 14 May 2017 on the ground that it violates the provisions of the Environment (Protection) Act, 1986 besides violating the Fundamental Rights provided under Articles 14 and 21 of the Constitution of India.

  1. GROUNDS FOR CONTENTION  

The Central Government under section 3(1) and section 5 of the Environment (Protection) Act 1986 is empowered to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and this includes issuing directions in writing to any person, officer or any authority, who are bound to comply with such directions of the Central Government, acting through the MoEF&CC. It is therefore well within the powers granted to the Central Government to issue such a notification through the MoEF&CC and therefore the Notification does not violate the provisions of the Environment (Protection) Act, 1986. 

The Hon'ble High Court of Jharkhand through its order dated 28th November, 2014 in Hindustan Copper Limited v. Union of India (W.P. (C ) No. 2364 of 2014) 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. The Hon'ble Court had further ruled that the proposal for environment clearance must be examined on its merits, independent of any proposed action for alleged violation of the environmental laws. The Notification clearly provides that cost of remedial measures would be imposed on the violators seeking environmental clearance after an assessment of the damage caused to the environment.    

It is to be noted that the Notification does not in any manner seek to alter or amend the provisions of the Environment Impact Assessment Notification 2006 and is therefore not in violation of the order of the Principal Bench of the National Green Tribunal dated 7 July 2015 (OA No. 37 of 2015 and OA No. 213 of 2015). More importantly, the Notification clearly provides that all applicants who have started the work on the site, expanded the production beyond the limit of environmental clearance or changed the product mix without obtaining prior environmental clearance, would be treated as a case of violation and their application would be considered on merits. 

The purpose of the six month window was to bring such projects and activities which are not in compliance on 14 March 2017, in compliance with the environmental laws at the earliest point of time instead of leaving them unregulated and unchecked as that would be more damaging to the environment and would violate the Right to Life of the citizens as provided under Article 21. The Notification therefore does not violate Article 21 of the Constitution of India but protects it instead as it is an attempt by Government of India to establish a process for appraisal of such cases of violation in order to ensure clean and healthy environment for the citizens of this country.

The process prescribed by the Notification would prescribe adequate environmental safeguards to entities and would deter any future violation of the provisions of Environment Impact Assessment Notification, 2006. The Notification would also ensure the imposition of fines on the violators, which would in turn be used to ensure that the victims of environmental damage caused by such projects, if any, are adequately compensated for.

The proponents of the projects or activities which are in violation as on date of this Notification are only eligible to apply for environmental clearance under this Notification within a period of six months. This is no assurance that all applicants would be granted Environmental Clearance even if they are not in compliance with the applicable law. The Notification does not in any manner violate Article 14 of the Constitution of India as it makes the process more stringent instead of diluting it, besides imposing a fine proportionate to the scale and period of violation. That even category B projects would be appraised by the Expert Appraisal Committee at the Central level further dispels the argument of violation of Article 14 as it would only make the process more stringent and uniform. 

The Notification clearly provides that the Expert Appraisal Committee shall stipulate the implementation of Environmental Management Plan, comprising remediation plan and natural and community resource augmentation plan corresponding to the ecological damage assessed and economic benefit derived due to violation as a condition of environmental clearance, further dismisses doubts about damage being caused to the environment or the Notification not being in consonance with the ethos of the environment protection laws of this country.

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at legalalerts@khaitanco.com

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