Anatomy of legalising violations: Environment Ministry’s policy of post facto approvals

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By Krithika Dinesh and Kanchi Kohli*

On March 14, 2017, India’s environment ministry, issued a notification, which gives an opportunity for projects that have violated conditions of the Environment Impact Assessment (EIA) Notification 2006 to be brought into compliance. Under this notification, a process is laid down for all those projects that have started construction, operation, expansion, modernization or change of product mix, without obtaining an environmental clearance to now apply for an environmental clearance. They have the opportunity to seek these approvals within six months from the issue of the notification, i.e by September 15th.

There had been widespread criticism of the draft and final notification as well as a set of justification that has been given by the Ministry.

Few clear trends emerge:

 The sector which is reflects highest number of applications is the mining, especially that of minor minerals

 The maximum number of applications has been received from Tamil Nadu reflecting five sectors.

 There are also several applications from the real estate sector, primarily from Tamil Nadu and Maharashtra.

 Applications also reflect instances of repeated violations where the same project proponent has multiple applications.

 The proponents have given a range of reasons for the violation like the State Environment Impact Assessment Authority (SEIAA) delisted the file earlier; the application is still under process etc.

The Ministry has set up a committee consisting of eleven members under the Chairmanship of Dr SR Wate. The committee had its first meeting on 22nd June 2017 to review the proposals received in compliance with the 14th March, 2017 notification.

The Committee in its first meeting has examined ten applications. Out of these ten applications, the committee has already recommended seven for grant for a Terms of Reference subject to conditions.

BACKGROUND OF THE NOTIFICATION

There are several developments at the ministry and by the courts that are important to understand the context of this notification:

By the environment ministry

There have been several attempts by the environment ministry to bring violating units into compliance. In 2010 an Office Memorandum4 was issued by the MOEFCC under which laid down the procedure to deal with violation of the EIA Notification 2006. Instances where construction has begun on site or expansion has been undertaken without obtaining the required prior environmental clearance were considered as ‘violation cases’.

As per the notification the projects were to be examined either by the Expert Appraisal Committee (EAC) at the central level or the State Expert Appraisal Committee (SEAC), and if the recommendations given by the EAC/SEAC were accepted by the competent authority, the project proponents were required to submit a written commitment to the Environment Ministry stating such violations would not be repeated. Further the respective State government was to be informed to initiate legal action against the project proponent as per the provisions of the Environment protection Act.

A similar Office Memorandum was passed in 2012, two conditions of which were contested in the courts. The first condition was that the notification required a written commitment in the form of a formal resolution by the Project proponents to ensure that “violations will not be repeated”. The second condition under contest was that in case of a violation, the State Government concerned would need to initiate credible action on the violation by invoking powers given to it under the Environment (Protection) Act, 1986.

Orders of the court

In 2014, the Jharkhand High Court had held that the conditions passed in the Office Memorandum in 2012 were illegal and unconstitutional. That the Ministry asked for an undertaking that would say, “violations will not be repeated in the future” amounted to admission of the violation itself. This essentially meant that the companies were asked to give evidence of its own violation. The court held that this violates the basic principle of rule of law, as it was self-incriminating evidence. On the second condition the court said that the state government could not be compelled to initiate action against the violators nor the process of environmental clearance be dependent on a court proceeding.

In SP Muthturaman versus Union of India & Another also the O.M of 2012 was held to be unconstitutional as they were ultra vires the provisions of the Act of 1986 and the Notification of 2006.

It was under this context that this Notification was passed, which would essentially take care of the shortcomings of the previous notifications that the court had highlighted.

THE JUSTIFICATION AND ITS CRITIQUES

The environment ministry’s justification

For Better Environment: The main justification that the Ministry gives for passing the notification is that it necessary for is for the purpose of protecting and improving the quality of the environment and for abating environmental pollution. The Ministry says that for doing so that it is necessary to bring all the entities that are not complying with environmental regulation under the EIA notification 2006 to be brought under compliance with the laws in an expedient manner.

Applying Polluter Pays Principle: Further the Ministry emphasis on another judgment passed by the Supreme Court in 1996. In this judgment, the case deals with pollution caused by chemical industries in Bichhri, Rajasthan, the court highlights the importance of the Polluter Pays principle. In the judgment, it was laid down that

“The polluter pays principle demands that the financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution, or produce the goods which cause the pollution. Under the principle it is not the role of government to meet the costs involved in either prevention of such damage, or in carrying out remedial action, because the effect of this would be to shift the financial burden of the pollution incident to the taxpayer.”

In this case the industries had changed its product without obtaining clearance, continued production without obtaining requisite consents and No-Objection Certificates from the designated authorities.

A stop gap arrangement: The ministry also argued that the notification is to deal with the violations that have come through the 2010 and 2012 notification. While a Civil Penalties Bill, which would deal with such violations is still pending, they argued that this is a stop-gap arrangement to deal with such violations in the intervening period.

Criticism of the notification

Both when the draft notification was put up by Ministry inviting for comments as well as after the final notification was passed, there was wide criticism of the process laid down in the notification.

Contrary to the EIA notification: One of the major criticisms of this notification is that is was passed against the spirit of the EIA notification (See articles by Menon & Kohli, Dutta R, policy brief by Shibani Ghosh) Under the EIA notification, projects that would possible have social and environmental impacts are to undergo a process in which these impacts are assessed before a project begins or modernization or expansion of a project. After a draft EIA report is prepared, there are then public consultations and examination of the project by an appraisal committee. Only after this recommendations are made for the project, usually having conditions attached to its approval. Giving post facto environmental clearances would make this process redundant. It would also take away the forum for public consultations.

Extension of Polluter’s Pay principle: Another criticism that the notification has faced is that the Ministry is wrongly extending the Polluters Pay principle in this case. It is said that this notification gives violators a licence to pollute and pay and this this measure is neither likely to reduce the adverse impact on environment nor the overall risk to public health caused due to the violation.

Reading of the court judgments: While the Ministry has placed reliance on two judgments (as mentioned above), the criticism is that the it has wrongly extended the import of these judgments (See article by Menon & Kohli). It is said that the Jharkhand judgment neither condones EIA violations in general nor prescribes a way out for erring companies. In the 2015 NGT judgment, the court had observed that the O.M “provide benefits to the class of the project or activity owners who have started construction in violation of law, i.e. prior environment clearance.”

EXAMINING THE APPLICATIONS

The data and trends that are emerging out of the applications that have been given in so for to the MoEFCC for condoning violations suggest the following:

Sector wise: The applications so far show that highest number of applications that have come in are from mining of minerals, followed by building and construction projects. As per the information filled by the project proponents, 175 of these are Category A projects, while 32 are Category B projects. This information has however been incorrectly filled by many project proponents, so the actual number of Category B projects will be much higher. For example, in a limestone-mining project with land area of 3.33 ha, the project proponent has applied under Category A.

Building and construction projects have the second highest number of applications.

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Sector-wise list of the applications
  • Repeat Violators: In the set of applications that has come in, it is observed that 34 of the project proponents have applied for at least 2 projects. For example, one violator -The Singareni Collieries Company Limited has 5 applications in 3 districts in Telegana for mining of minerals. The reason given for violating is expanding the production beyond for which environmental clearance was obtained. In another instance, the Tamil Nadu Slum Clearance Board has put in 3 applications, each involving building and construction projects which involves land area ranging between 35000 sq ha and 53000 sq ha. All three project’s files were delisted by the Tamil Nadu SEIAA and have now come, after construction, for clearance to the EAC.
  • environ2
    State-wise break up of the applications

    Pending Litigation: 13 of the projects out of the set of applications have pending court cases in the respective district and high courts against the project. These cases are either against the project or the land in which the project is proposed to set up. No further details are available in the applications as uploaded on the ministry’s website.

  • Geographic spread: A look at the state wise break-up of which all states the applications are coming in from shows that Tamil Nadu has the highest number of violators who have out in their applications. Tamil Nadu captures 66.18 percentage of the total. Gujarat comes as a far second, followed by Maharashtra. Gujarat has majority of its applications in the mining sector (almost 85%) while most of Maharashtra’s are from the Building and Construction sector (almost 64%).

*With Centre for Policy Research-Namati Environmental Justice Program. These are excerpts from the working paper “From Prior to Post: Legalising Environmental Violations”. Click HERE for full working paper

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