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The Ministry of Environment, Forest and Climate change (MOEF&C) issued a new draft notification in May 2016, proposing to amend the Environment Impact Assessment Notification, 2006. The draft notification aims to legitimise all violations of environmental law under three covers – Environmental Supplemental Plan, Environment Justice and ‘innovative’ technologies.
India’s Environment Impact Assessment law (EIA Notification, 2006), provides a legal process for grant or rejection of environmental clearances to industries and activities. Project developers/proponents cannot start work on project-related activities unless and until they rece-ive ‘prior’ environmental clearance. In fact, the heart and soul of EIA is the need for prior app-roval. This is the law as it exists.
However, all this is going to change, if the draft notification, as it is presently formulated, comes into force. Through innovative terminologies and convoluted statements, the ministry plans to allow project developers/proponents who violated the law by commencing construction or expanding operations (without approval). They will now be granted environmental clearances. The only condition is that they must agree to implement an Environmental Supplemental Plan (ESP).
The ministry claims that the primary purpose of the ESP is to discourage violations of the law and to obtain environmental and public health benefits which otherwise would not have occurred. It wrongly assumes that ESP is needed to discourage violations since existing law does not provide for the same.
The Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974 provide for a minimum period of one and a half years of imprisonment for any person or entity which has commenced activities without a valid consent to establish or operate.
If the MoEF is serious about discouraging violations, then the existing laws allow it to file criminal complaints and prosecute the offenders. Unfortunately, the ministry has failed to exercise this power. The draft notification is intended to encourage violations and ensure certainty with respect to grant of environmental clearance irrespective of its environmental consequences.
Under the Coastal Regulation Zone Notification, 2011, ports are not allowed in high erosion zone and similarly, under the siting guidelines of the ministry, thermal power plants are not allowed in prime agricultural land (double cropped land). However, under the proposed notification, in case a project proponent commences construction in these prohibited areas, the MoEF will grant environmental clearance so long as it agrees to implement the ESP.
Secondly, the draft notification refers to ‘Environmental Justice.’ This is the first time an Indian legislation or policy document is recognising the term. It states that environmental justice will be accorded ‘high priority’ in the implementation of the ESP. However, a critical que-stion arises: can environmental justice be achieved by allowing a blatant violator of law to get clearances and continue activities despite its disdain for the Rule of Law. Further, the local community is reduced to a meek acceptor of the project, irrespective of its impact.
Innovative technology
Thirdly, the draft notification talks about ‘innovative technology.’ It states the ESP will provide an opportunity to ‘develop and demonstrate new techno-logies which may prove more protective to human health and environment then existing processes and procedures.’ The question is, if new technologies exist, should authorities wait
for violations to take place for them to be implemented?
The draft notification violates both the ‘Polluter Pay Principle’ and the ‘Precautionary Principle.’ Both these principles form the edifice of environmental law. The Supreme Court has held that Polluter Pay Principle can’t be a licence to pay and pollute. The draft notification does just the opposite. It allows illegal activity to take place without environmental clearance, and ESP amounts to ‘pay and pollute.’
The fundamental problem in the draft notification is that it condones a criminal act on the part of the project proponent and replaces it with a procedure which allows the violation to be legalised. Violation of a statutory law has penal consequences.
Even more serious is the fact that not only does the draft notification condone existing violations, it contemplates that the violations may be repeated. It states that the project proponent must demonstrate that it will ‘reduce’ the likelihood of similar violation in future!
It should not be forgotten that the draft notification is only an exercise of the delegated powers under the Environment (Prote-ction) Act, 1986 by the executive. It is a settled law that the executive, acting under delegated legislation, cannot frame rules which are contrary to the laws passed by legislature. This is exactly what is being proposed.
One of the emerging principles guiding environmental law is the ‘principle of non-regressi-on.’ Simply stated, it means that the states cannot dilute existing environmental laws and consistent efforts should be made only towards strengthening them to protect the environment. The draft notification is in clear violation of this principle.
The ministry should immediately recall the draft notification which is bad in law, will encoura-ge bad corporate behaviour and will be disastrous for ecology.
(The writer is an environmental lawyer based in New Delhi)