Environment Law: Proposed Norms Dilute The Process Rigours, Experts Say

Environment clearance process for large infrastructure projects like dams, roads, mines and townships is set for an overhaul. The draft Environment Impact Assessment notification has been circulated for stakeholder comments. Once notified, it will replace the existing rules issued in 2006.

The draft prepared by the Environment Ministry proposes three key changes:

• No public consultation for certain construction projects.
• Powers to retrospectively regularise projects.
• Exemptions for projects with strategic consideration.

The predominant thrust of the notification is on proponents, violators and the industry, Ritwick Dutta, an advocate practicing environment law, told BloombergQuint. The notification, when read as a whole, provides more time and liberty to project proponents and aims to keep the public out through reduced disclosures and fast-track approvals without public hearing, he added.

Oversight Of Certain Construction Projects

Public consultation, as defined in the draft notification, means a process by which concerns of the locally affected persons are ascertained. Outcome of such public consultations is scrutinised by an appraisal committee, formed at the district and state level, which grants a Prior Environment Clearance.

The notifications proposes to exclude B2 category projects from the purview of both public consultation and appraisal committee.

B2 category projects or activities include aerial ropeways in notified ecologically sensitive areas, building and construction projects having area between 20,000-50,000 square metres, bulk drug manufacturing projects with zero liquid discharge in notified industrial estates, paint manufacturing facilities fulfilling specified criteria, etc.

According to Dutta, these twin exclusions will not bode well for the environment as studies reveal that the construction sector is a major contributor to pollution. A major chunk of appraisals done by State Impact Assessment authority is for construction projects and excluding them would defeat the primary purpose of their establishment, he added.

Ashoo Gupta, partner at Shardul Amarchand Mangaldas & Co., however, pointed out that the rigour of law will still apply as the excluded projects will require a prior environment clearance from a regulatory authority. Thus there will be no leniency in assessing the projects as regulatory oversight is retained in the draft notification, she added.

Powers To Retrospectively Regularise Projects

Another major dilution, according to experts, is the power to retroactively regularise projects that have been constructed in violation of environmental norms. A construction without prior clearance or expansion beyond approved limits may be regularised if a proponent applies voluntarily, the draft notification says.

In 2017, the Madras High Court had stayed a similar notification by the government as it was against the intent of the Environment Protection Act, 1986.

Gupta said allowing projects to procure post facto approvals in perpetuity defeats the purpose of prior approvals. However, this is counterbalanced to some extent by allowing the appraisal committee to direct a closure if findings indicate that a construction or expansion is not sustainable, she added.

Dutta pointed out that post facto approvals are not a norm under municipal or environmental laws. This goes contrary to the National Green Tribunal’s orders in Alembic Pharmaceuticals and United Phosphorus cases, where it was held that the Environment Protection Act does not confer power to grant post facto approvals, he said.

Both these NGT orders were upheld by the Supreme Court, and this proposal, if finalised, may not pass judicial muster. The apex court has said that prior approval is integral to environment impact assessment process, he added.

Exemptions For Strategic Projects

The draft notification proposes to exempt projects concerning national defence, security or those involving strategic consideration from public consultation. Strategic projects can imply projects critical to the policies framed by the government.

The draft notification does not define the word ‘strategic consideration’ and leaves it to the determination of the central government. Experts pointed out that the open- ended definition may be used to circumvent environment approval processes.

Khaitan & Co.’s Navneet Vibhaw agreed that this concern is valid.

The government needs to clarify and possibly define as to apart from national defence and security, what these “strategic considerations” could possibly be. ‘The government needs to allay such fears to enjoy the confidence of industry and activists,’ Vibhaw said.

These are only a few proposals that have perturbed lawyers and environment activists.

Experts point to proposals like non-disclosure of information relating to certain projects, exclusion of public consultation requirement for projects like highways and pipelines up to 100 kilometres from border area, fast-track approvals for certain projects and blanket exemption from impact assessment to increased category of projects, as an indication towards reducing public participation.

Add to that, the draft notification proposes to curtail two critical timelines—the time for public hearing from 45 to 40 days, and for public comments from 30 to 20 days. Activists argue that the reduced timelines will adversely impact public participation. While others say tighter timelines will ensure stakeholders act quickly.

The ministry has given the industry time till May 15 to comment on its proposals.