Environmental Clearances (EC) and consents are an integral requirement for any industry to operate in India. Most project proponents are required to undertake an environment impact assessment (EIA) before an EC is granted to them. Depending on the nature and scale of the project, the projects are categorised into two categories, with one category (category A) required to obtain clearance from the Ministry of Environment, Forests and Climate Change (MoEF&CC) and the second category (category B) required to seek it from the State Environment Impact Assessment Authority (SEIAA). Some projects which are considered environmentally benign or are not expected to have any adverse impact on the environment are exempted from undertaking the EIA process to seek an EC. Such projects require the environmental consents from the state pollution control boards or pollution control committees and other environmental consents and authorisations, as applicable.
The requirement for seeking an EC was brought in through the EIA Notification, 1994. This was revised through the EIA Notification, 2006 wherein additional categories of industries were brought under the purview of the law and were required to take EC before commencing operations. The law has evolved in the last couple of decades and as various changes were brought in the law with the passing time, environmental concerns grew and so did the types of industries and the complexity of their operations. It is with this objective that the MoEF&CC wants to consolidate the law and make it more streamlined. In the past, environmental consents and clearances have been seen as a time-taking process, apart from the concerns expressed by industries relating to environmental compliances from time to time. The Government of India (Government) also wants to change this perception without compromising on environment protection.
The draft notification for EIA was released by the MoEF&CC to the general public for comments and feedback in March, 2020. The High Court of Delhi on 30 June 2020 passed an order wherein it extended the deadline for providing comments till 11 August, 2020 so that the general public has sufficient time to raise concerns and file objections regarding the proposed changes to the EIA law in India. The extension was in light of the lockdown and delays caused due to the pandemic. The Government has claimed that its purpose is to consolidate the EIA law in India and make it more streamlined. It claims that the new notification is being brought in to make the process more transparent and expedient by the implementation of an online system, further delegation, rationalisation and standardisation of the process etc. However, the proposed amendments have also been widely criticised as an attempt by the Government to dilute the EIA process in the country. While the process for providing the comments and feedback is now complete and it will be interesting to see what changes are actually notified by the Government, let us look at some of the proposed changes.
The proposed amendments provide for what is being perceived as ex-post facto clearance. It may be noted that a judgment by the Hon’ble Supreme Court earlier this year in the case of Alembic Pharmaceutical Ltd. v Rohit Prajapati has held such clearance to be unsustainable in law. It has however been clarified by the Government officials that the clearance will be valid from the date on which it is granted. For the period during which operations were carried out without an environmental clearance, fine would be imposed on the erring industry for the duration of default and for the remediation of any damage caused to the environment. Defence projects and national security installations are exempt from public consultation, as was also the case earlier. However, additionally, the draft proposes to also exempt projects “involving other strategic considerations”. The nature of projects which would fall in such a category would be determined by the Government.
The EIA requirement for certain construction projects has been done away with as only the larger projects will now be scrutinized. For example, building, construction and area development projects which are greater than 1,50,000 sq. meters and/or have a total land area greater than 50 hectares would only require assessment but by the state authority. This move is meant to empower the state authorities, make the clearance process more efficient and at the same time reduce the burden on the central authorities. The timeline for providing notice for conducting public hearing has been reduced from 30 days to 20 days, with an idea that a minimum period of 20 days be provided to the public for furnishing the responses. The total time allotted for conducting public hearing has been reduced from 45 days to 40 days (from the date of receipt of request letter of the project proponent). The purpose is to reduce delays wherever possible in order to make the process more efficient.
The monitoring requirements have been eased where instead of submitting the compliance report every six months, it would now be required to be submitted once a year. More importantly, just like the EIA application process, it has been proposed that the compliance reporting would be made online to improve efficiency and compliance. Validity period for approvals in sectors like mining have been proposed to be increased from the current 30 years to 50 years. This would be further extended by up to three years in case there is any delay due to events like insolvency proceedings. About 40 categories of projects are proposed to be exempted from the EIA requirement, which means they would neither require an EC nor a prior environment permission (“EP”). These are projects which the Government believes would not have any adverse impact on the environment and therefore do not require an impact assessment.
The time granted to the committees to conduct appraisal has been reduced from 60 days to 45 days. This would help make the process more efficient and benefit the project proponents. However, the fear being expressed is that it might result in the appraisal not being conducted properly due to the reduced time-period. The provision for self-disclosure by promoters / project-proponents in cases of violations will ensure that the projects are compliant as it will disincentivise non-reporting of violations. In order to further incentivise suo moto reporting of violations by the project proponents, a comparatively lesser penalty is being proposed to be imposed. The draft further provides that an existing consent to operate would be valid for a period of six months for projects not requiring public consultation and for a period of one year for project requiring public consultation from the date on which such violation is reported. The proposed amendments also allow third party assessment of compliance. Such third-party assessment would be carried out by recognised / accredited agencies. The purpose of involving an independent agency is to add credibility to the assessment process.
The draft provides for a simpler mechanism for the grant of EC to projects which are planning to undertake any kind of modernization or expansion. All such applications for prior-EC, for the proposals intended for modernization without increase in the production capacity or increase in production capacity up to ten percent, with respect to prior-EC having been granted earlier, shall be made online and the EC shall also be issued online, once approved by the concerned state or central authority. This has been done to save time for the proponents as the earlier scheme provided for the complete EIA process to be repeated in case of any modernization or expansion of the project. The draft notification also provides that any project or activity specified in Category ‘B1’ shall be appraised at the central level without any change in the category, if it is located in whole or in part, within 10 kms for some projects and within 5 kms for others, from the boundary of any protected area, critically polluted area, eco-sensitive area, inter-state or union territory. This would also be the case if the project is located within the boundary of severely polluted area or eco-sensitive zone.
The draft amendments will soon be finalised and notified. However, it will be interesting to see which of the aforesaid amendments, as proposed in the circulated draft for comments would see the light of the day. While the intention of the Government is to clearly make the EIA process less cumbersome, it cannot be at the cost of the environment. Therefore, it will be interesting to see how the Government strikes this fine balance between safeguarding the environment and at the same time not letting industries suffer due to delays in the process of seeking EC. Sustainable development is what we need and Government needs to just ensure that by addressing the genuine concerns.
 2020 SCC Online SC 347; Judgment dated 1 April, 2020
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