Regularising Green Violators Legally Untenable

Nikhil Ghanekar | IndiaSpend

New Delhi: The Union Ministry of Environment, Forest and Climate Change (MoEF&CC) on July 7, 2021 issued new standard operating procedures (SOPs) for dealing with cases of industrial projects that are operating without prior environmental clearance under the Environment Impact Notification (EIA), 2006.

Action will be taken against projects that do not have prior environmental clearance, depending on whether they were eligible for a clearance to begin with, per the new SOP. Those found to have been ineligible for clearance will be demolished, while those eligible will be allowed to continue on paying the prescribed penalty.

The process of bringing the new SOP via an office memorandum does not have a strong legal basis, environment lawyers told IndiaSpend. “Office memoranda are issued only to clarify administrative procedures to implement a law, and not to change laws. Unless an amendment is made to the Environment (Protection) Act, 1986 or EIA, 2006, such SOPs issued as office memoranda have no legal basis, as the existing law does not have a provision for allowing post-facto environmental clearance,” said Parul Gupta, an environmental lawyer who practices in the Supreme Court and the National Green Tribunal.

The new SOP is a successor of sorts to the ministry’s notification in March 2017, which had provided a six-month, one-time regularisation window to projects that had not obtained prior environmental clearance per the EIA 2006. The ministry’s decision to issue this new SOP through an office memorandum also contradicts the grounds it had adopted while issuing the 2017 notification, we found.

The SOP’s provisions will not act as a deterrent against violations of environment norms, defeating the purpose of prior environmental clearances mandated by the EIA 2006, say lawyers.It is also similar to the provisions of the draft EIA notification of 2020, which has been challenged before the High Courts of Delhi, Karnataka and Madras, they added.

The new SOP has been introduced at a time when the ministry has been accused of regularly weakening regulatory norms for the establishment of new industries and for industrial expansion, as IndiaSpend reported in January 2020.

Environment ministry officials did not respond to repeated calls seeking their comments.

New SOP contradicts past green tribunal directions

The new SOP to deal with cases of violations has been introduced in compliance with National Green Tribunal (NGT) orders, the environment ministry said in its office memorandum. One of the NGT’s directions the ministry has relied upon is an order from May 24, 2021, in which the NGT said, “A proper SOP be laid down for grant of EC (environmental clearance) in such cases so as to address the gaps in binding law and practice being currently followed. The MoEF [Ministry of Environment and Forest] may also consider circulating such SOP to all SEIAAs [State Environment Impact Assessment Authorities] in the country.”

The NGT’s directions, however, were in the context of “grievance of continuous violation of environment norms in construction projects being completed without prior environmental clearance (EC)” in Maharashtra, and with regard to the functioning of the state’s SEIAA. The case pertained to violations in a Pune residential building complex project where the builder had constructed above and beyond what was permitted in the project’s environmental clearance.

Further, the ministry’s office memorandum contradicts the grounds it had cited when issuing another notification in 2017, which allowed a one-time window for regularising project violations.

In its press release announcing the 2017 notification, the environment ministry had said that it was introducing a six-month, one-time window for projects that had not obtained prior environmental clearance. This, it had said, was being done since many such proposals were received at both the ministry and state levels.

The ministry went on to add the reasons why it was opting to introduce the one-time window, instead of bringing it through an office memorandum. It noted in the press release that in the past, the NGT had quashed office memoranda that introduced a process to grant EC for cases of violation. “The Environment Impact Assessment Notification, 2006 provides for prior environmental clearance, so no procedure can be laid through O.M.s for post environment clearance… O.M. cannot amend a notification, which is a subordinate legislation,” the release noted.

“Though there is a need to bring project violations under the regulatory net, the provisions of the SOP will allow regularisation on an ongoing basis, which defeats the purpose of prior clearances given under the EIA notification, 2006. These provisions are similar to the system proposed in the draft EIA notification, 2020, for dealing with cases of project violations,” said Kanchi Kohli, senior researcher at Delhi-based think-tank, Centre for Policy Research (CPR).

Environmental lawyer Ritwick Dutta said that none of the court judgments the ministry has quoted in its SOP state that post-facto approval is legal and that the ministry should come out with a process to legalise post-facto approval. “The judgement (relied upon in the SOP) in fact states that post-facto approval is fundamentally opposed to environmental jurisprudence,” Dutta said.

“It is also important to highlight that the NGT and the Supreme Court in numerous decisions have clearly stated that the practice of the environment ministry to change environmental laws through mode of office memorandum is illegal and a violation of all legal processes. These documents are ‘non-est’ (do not exist) in the eyes of the law,” he added.

On July 16, the Madurai bench of the Madras High Court ordered an interim stay on the July 7 office memorandum, in response to a public interest litigation arguing that there was no provision in environment laws for granting post-facto clearances.

New SOP’s provisions won’t deter violators, say lawyers

The new SOP states that action against projects will be initiated based on whether they are permissible/allowable under the EIA 2006 in the first place. If a project is not eligible, the Union or state authorities will order demolition or closure after issuing a show-cause notice. A project that is eligible for environmental clearance but does not have one will be issued terms of reference to carry out an environmental impact assessment.

The illegal project activities will also be subjected to damage assessment, remedial plans and appraisal by expert panels at the Union and state government levels, depending on the scale of the project. If it is found during appraisal that the project, though permissible, is not environmentally sustainable, the relevant authorities will order a modification in its scope to make it ‘environmentally sustainable’. Upon appraisal, if a project is not found fit to get a clearance, it may also be demolished or closed.

As far as penalties are concerned, the SOP stated that in case work has not commenced on project, the proponent will have to cough up 1% of the total project cost incurred and in cases where work has begun, the penalty will be 1% of the total project cost, plus 0.25% of total turnover during the period of violation.

Gupta said that the new provisions won’t act as a deterrent. “It encourages violators/polluters to flout the law on one hand and cause irreversible environmental damage on the other,” she said.

“Merely stating that [the SOP] is pursuant to an NGT or High Court or Supreme Court order does not mean that it is a legitimate exercise of authority. It is an illegal act in both letter and spirit. This SOP cannot and should not be given effect to. Rather than waiting for the courts to conclude that the SOP was issued without any legal basis, the ministry will do well to withdraw it on its own,” he said.

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