The Ministry of Environment, Forest and Climate Change (“MoEF&CC”) through an Office Memorandum dated 7 July 2021 has published the Standard Operating Procedure (“SOP”) for identification and handling of violation cases under the Environmental Impact Assessment (“EIA”) Notification, 2006.
EIA is a planning tool to help integrate the environmental concerns into developmental process at the initial stage of project planning and design. The EIA Notification, 2006 has been notified under the Environment (Protection) Act, 1986 (“Act”) and it regulates the environmental clearance (“EC”) process in India.
This SOP has been framed in compliance with the order dated 24.05.2021 passed by the National Green Tribunal (“NGT”) in the case of Tanaji B. Gambhire v. Chief Secretary Government of Maharashtra and Ors. [Appeal No. 34 / 2020 (WZ)] wherein the NGT had directed the MoEF&CC to frame this SOP.
The issue of operating a project or carrying out an activity without prior EC or in excess of the capacity permitted under the EC has been a matter of adjudication before several courts in India. Indian courts while dealing with such matters have enunciated the ‘principle of proportionality’ and ‘polluter pays principle’.
The Hon’ble Supreme Court of India (“Supreme Court”) through a judgement dated 02.08.2017 passed in the case of Common Cause v. Union of India & Ors. [W.P. (C) No. 114 / 2014] held that an EC will come into force only on the date on which it is granted and not earlier. The Court further held that the concept of an ex post facto or retrospective EC has not been allowed under the Indian environmental law.
While applying the ‘principle of proportionality’, the Supreme Court through its judgement dated 01.04.2020 passed in the case of Alembic Pharmaceuticals Ltd. v. Rohit Prajapati & Ors. [C.A. No. 1526 / 2016] held that this Court must take a balanced approach to hold accountable the industries which have operated without an EC in the past. However, this may not necessarily mean ordering a closure of their operations even after they have obtained an EC.
The High Court of Jharkhand through an order dated 28.11.2014 passed in the case of Hindustan Copper Limited v. Union of India & Ors. [W.P. (C) 2364 / 2014] held that the proposal of the petitioner company for environmental clearance must be examined on its merits and independent of any proposed action for the alleged violation of the environmental laws.
This SOP defines “violation” and “non-compliance” to mean as,
This SOP has the following guiding principles:
Steps for dealing with the violation cases
Step 1: This step pertains to taking action on the project based on the status of EC of the said project. The action taken will be based on the below mentioned table.
|S. No.||Status of EC||Actions|
|1.||If no prior EC has been taken.||Order to close its operation.|
|2.||If prior EC is available for existing or old unit.||Order to revert the activity or production to permissible limits.|
|3.||If prior EC was not required for earlier production level but is now required.||Restrict the activity or production to the extent to which prior EC was not required.|
Step 2: This step pertains to taking action under the Act. Under this step action against the violators shall be initiated under section 15 read with section 19 of the Act.
Step 3: This step pertains to appraisal of the project under the EIA Notification, 2006. Under this step, the permissibility of the instant project shall be examined from the perspective of whether such an activity or project was at all eligible for the grant of prior EC.
Project is not permissible: If the project is found to be not permissible, following actions will be undertaken:
Project is permissible: During the scoping stage, if as per extant regulations, the project activity is found to be otherwise permissible following actions will be taken:
Please note that the aforementioned percentage rates shall be halved if the project proponent suo motu reports its violations. Also, as per the SOP, where the project proponent fails to provide required information or requisite documents or complete the requisite study for the purpose of EIA / EMP or does not furnish such reports within the specified time for the purpose of appraisal, it shall be inferred that the project proponent is not serious enough and the project or activity shall be directed to be demolished / closed.
The abovementioned penalties shall be in addition to the liability for carrying out remedial measures which shall be worked out based on the damage assessment for quantifying the environmental damage caused due to unauthorised project activity.
With the objective to identify violation cases, the Central Government through this SOP has passed following directions:
The MoEF&CC has been receiving requests for regularisation of different categories of violation cases and such cases have been pending for want of an approved procedural framework. Since the present SOP is guided by the observations and / or decisions of Indian courts on the ‘principle of proportionality’ and ‘polluter pays principle’, it provides some clarity and guidance to deal with the cases of violation. However, it would be interesting to note as to how effectively the SOP is implemented so that it helps protect the environment apart from according the industries an opportunity to ensure compliance.
This article was originally published in Mondaq on 15 July 2021 Co-written by: Nawneet Vibhaw, Partner; Ashutosh Senger, Associate. Click here for original article
Contributed by: Nawneet Vibhaw, Partner; Ashutosh Senger, Associate
This is intended for general information purposes only. The views and opinions expressed in this article are those of the author/authors and does not necessarily reflect the views of the firm.
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